Delhi District Court
State vs Hindu Singh Yadav @ Mukesh on 19 December, 2015
IN THE COURT OF SH. REETESH SINGH, ASJ-02, NEW DELHI
DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
Case ID No. 02403R1014962007
Sessions Case No. 176/2013
State Versus Hindu Singh Yadav @ Mukesh
@ Raj Malhotra
S/o Sh. Ganga Singh Yadav
R/o. Kalopul, PS Gaushala,
District Kaithmaindu, Nepal.
Present Address:
House No. 7, 3rd Floor, Vinobapuri,
Lajpat Nagar-2,
Delhi.
FIR No. : 57/2007
U/s: 121/121A/489A, B & C of the IPC
PS: Special Cell
Date of institution of the case : 21.11.2007
Date when the case reserved for judgment : 19.12.2015
Date of announcement of judgment : 19.12.2015
JUDGMENT
1. Hindu Singh Yadav @ Mukesh @ Raj Malhotra is facing trial before this Court for offences alleged to have been committed by him and punishable under Section 120B of the IPC for indulging in criminal conspiracy for circulation of fake Indian currency notes (FICN). In addition Hindu Singh Yadav @ Mukesh @ Raj Malhotra is charged with the offence punishable under Section 489B of the IPC. An alternative charge under Section 489C IPC has also been framed against him.
2. It may be noted that initially Hindu Singh Yadav @ Mukesh State vs. Hindu Singh Yadav & Anr.
FIR No. 57/2007, PS: Special Cell 1/21 @ Raj Malhotra was facing trial for these offences along with other co- accused Neeraj Sudhansu, Aparna Adhikari, Pankaj Rehani and Kislay Singh. Hindu Singh Yadav subsequently absconded w.e.f. 03.09.2012 and was declared a proclaimed offender vide order dated 12.04.2013. The trial against Neeraj Sudhansu, Aparna Adhikari, Pankaj Rehani and Kislay Singh proceeded. They were acquitted of all charges by this Court by judgement and order dt.29.06.2015.
3. Hindu Singh Yadav was arrested by the officials of Special Cell in FIR No.54/2015 PS Special Cell on 12.09.2015. Intimation of his apprehension was given to the IO of this case and he was produced before this Court upon issuance of production warrants on 28.09.2015. An additional charge for the offence under section 174A IPC was framed against him on 28.09.2015. At that stage it was noticed that the examination in chief of ASI Rakesh Ahluwalia (PW12) and SI Sanjeev Kumar (also PW12) stood recorded during the period Hindu Singh Yadav was appearing i.e. prior to 03.09.2012 and their cross- examination remained to be conducted. On 16.11.2015 Hindu Singh Yadav admitted under section 294 Cr.P.C. the complaint under section 196 Cr.P.C. of KR Mehndiratta (which was earlier exhibited as Ext.PW14/A during the trial of the other co-accused persons). Thus KR Mehndiratta was dropped as a witness. Cross-examination of ASI Rakesh Ahluwalia (PW12) and SI Sanjeev Kumar (also PW12) were carried out. Pawan Singh Nodal Officer of M/s Idea Cellular and Chander Shekhar Nodal Officer of M/s Bharti Airtel were examined as PW 16 and PW 17 respectively. SI Satender Mohan who had apprehended Hindu Singh Yadav in FIR No.54/2015 PS Special Cell was examined as PW 16 (should have been PW 18).
State vs. Hindu Singh Yadav & Anr.
FIR No. 57/2007, PS: Special Cell 2/21
4. The case of the prosecution as per the police report under Section 173 (2) of the Cr.P.C. is that the Special Cell of the Delhi Police had received information that the ISI, an Intelligence Service of Pakistan was operating a network to circulate FICN, printed in Pakistan, into India through the borders of Nepal and Bangladesh. Further information was received that one such module was operating in Delhi of which one member Hindu Singh Yadav was residing in the area of Vinoba Puri, Lajpat Nagar, Delhi with an associate Neeraj. On 16.07.2007 at about 8:45pm specific information was received that the Hindu Singh Yadav with Neeraj would be coming near Lal Shahi Mandir, Ring Road, Lajpat Nagar, New Delhi at about 10:30pm to make delivery of FICN. This information was discussed with senior officers and a police team was constituted comprising of Insp. Lalit Mohan Negi, Insp. Hridaya Bhushan, Insp. Govind Sharma, SI Umesh Barthwal, SI Girish Kumar, SI Samey Singh, SI Chandrika Prasad, SI Rishi Pal, ASI Rakesh Ahluwalia, ASI Ramesh Kumar, ASI Ashok Kumar, HC Devi Dayal, HC Mohan, HC Sukhbir, HC Dev Dutt, HC Sunder Gautam, HC Rakesh Kothiyal, Ct Ravinder, Ct Ravi Dutt, Ct Krishan, Ct Jitender and SI Kailash Yadav.
5. The police team left the office of the Special Cell in three private cars and four two-wheelers at about 9:15pm and reached Hemu Kalani Government School at about 9:30pm. Request was made to pedestrians to join the proceedings of the police team but all declined. The police team positioned themselves around Lal Shahi Mandir and at about 10:45pm, two persons were seen to be coming on foot from the direction of Ashram Chowk on Ring Road and started waiting for State vs. Hindu Singh Yadav & Anr.
FIR No. 57/2007, PS: Special Cell 3/21 someone near the said Mandir. The secret informer identified these two persons as Hindu Singh Yadav and Neeraj. These two persons realized that a police team was present and started moving away but they were apprehended.
6. Accused Hindu Singh Yadav was personally searched and was found to have concealed five wads of FICN of denomination of Rs.1000/- each in his waist belt. Upon checking, one wad had 87 notes, second wad had 80 notes, third wad had 75 notes, fourth wad had 87 notes, fifth wad had 80 notes and the sixth wad had 91 notes. The serial numbers of the FICN were noted down and the wads were marked as H1 to H6, kept in a polythene packet, sealed with surgical tape on which seal of "KCY" was affixed and seized vide memo Ex.PW7/A.
7. Accused Neeraj was personally searched and was found to have concealed five wads of FICN of denomination of Rs.1,000/- each in his waist belt. Upon checking, one wad had 92 notes, second wad had 91 notes, third wad had 114 notes, fourth wad had 93 notes and fifth wad had 110 notes. The serial numbers of the FICN were noted down and the wads were marked as N1 to N5, kept in a polythene packet, sealed with surgical tape, seal of "KCY" was on the same and seized vide memo Ex.PW7/B. The seal after use was handed over to SI Rakesh Ahluwalia.
8. SI Kailash Yadav prepared the rukka Ex.PW7/C and sent the same for registration of the FIR through SI Rakesh Ahluwalia. Further investigation was assigned to SI Sanjeev Kumar who prepared the site plan Ex.PW7/DB, arrested Hindu Singh Yadav and Neeraj State vs. Hindu Singh Yadav & Anr.
FIR No. 57/2007, PS: Special Cell 4/21 Sudhansu vide memos Ex.PW7/E and Ex.PW7/F respectively and recorded their disclosure statements Ex.PW7/I and Ex.PW7/J respectively.
9. After the disclosure statements of the accused Hindu Singh Yadav and Neeraj Sudhanshu were recorded, they led the police team to Third Floor, House No.7, Vinoba Puri, Lajpat Nagar, New Delhi from where Hindu Singh Yadav produced a blue coloured box which was found to be containing FICN of denomination of Rs.1000/- each totalling Rs.9,50,000/-. The same was seized vide memo Ex.PW7/M after they were put in a cloth pullanda and sealed with the seal of SK. The blue coloured box was seized vide memo Ex.PW7/N. At the said house, Hindu Singh Yadav had produced before the IO five SIM cards which were seized vide memo Ex.PW7/O. After the proceedings in the said house, both the accused persons were brought back to the police station and the seized case property deposited in the Malkhana. Thereafter supplementary disclosure statements of Hindu Singh Yadav and Neeraj Sudhansu were recorded vide Ex.PW7/Q and Ex.PW7/R. The FICN sent for examination to the Currency Notes Press Nashik Road.
10. After recording of statements of the witnesses, charge- sheet was filed. The report of the Currency Notes Press was filed subsequently with a supplementary charge-sheet as per which the recovered FICN were found to be fake.
11. By order dated 31.07.2008, charges were framed against Hindu Singh Yadav to which he pleaded not guilty and claimed trial. The State vs. Hindu Singh Yadav & Anr.
FIR No. 57/2007, PS: Special Cell 5/21 prosecution has examined a total of 18 witnesses to bring home its charges and a brief description of these witnesses are tabulated as under:-
SRL. NO. NAME RELEVANCE PW1 HC Ram Kumar Singh He is the Duty Officer who recorded the FIR Ex.PW1/1 on the basis of the rukka brought by ASI Rakesh Ahluwalia which he handed over for transmission to SI Sanjeev.
PW2 Smt. Vimla She was the landlady of Ganesh Singh, husband of the accused Aparna.
PW3 WSI Nirmala Kumari She had joined the investigation on 21.07.2007 and had gone with SI Sanjeev to Gurgaon with the accused Hindu Singh Yadav and Neeraj to look for the accused Aparna Adhikari. She was also present when the accused Aparna Adhikari was arrested and FICN recovered at her instance.
PW4 Mahender Kumar He is the owner of H-7, Third Floor, Vinoba Puri, Part-II, Lajpat Nagar and was landlord of the accused Neeraj.
PW5 A.M.Behra, Assistant He had examined the seized FICN Work Manager, and has given his report Ex.PW5/A Currency Notes Press, and Ex.PW5/B. Nashik Road PW6 Dharamveer Batra He is the owner of a Stationery Shop and STD Booth at G-59, Old Double Storey, Lajpat Nagar-4, Delhi. He was examined to prove that mobile connection number 9891592304 had been issued by him to the accused Kislay Singh State vs. Hindu Singh Yadav & Anr.
FIR No. 57/2007, PS: Special Cell 6/21 after taking documentary proof of Subhash Mandal and mobile number 9910210855 to Champa at the instance of the accused Pankaj. He did not support the version of the prosecution.
PW7 SI Kailash Yadav He was the part of the police team which apprehended the accused Hindu Singh Yadav and Neeraj on 16.07.2007 and prepared the rukka Ex.PW7/C. PW8 HC Yashpal On 02.10.2007, he had taken the seized FICN vide RC No. 109 of 21 to Currency Notes Press Nashik Road and deposited the same on 03.10.2007, obtained the result on 04.10.2007 and came back with the FSL Result on 05.10.2007 and deposited the same in the malkhana.
PW9 SI Umesh Bharthwal He was the part of the police team which apprehended the accused Hindu Singh Yadav and Neeraj on 16.07.2007.
PW10 SI Girish Kumar He was the part of the police team which apprehended the accused Hindu Singh Yadav and Neeraj on 16.07.2007. On 10.09.2007, he had accompanied SI Sanjeev who arrested accused Kislay Singh and Pankaj. He also accompanied SI Sanjeev Kumar on 11.09.2007 when FICN was recovered at the instance of the accused Pankaj.
PW11 SI Sanjeev Kumar He is the IO of the case to whom investigation was assigned after apprehension of the accused Hindu Singh and Neeraj on 16.07.2007.
State vs. Hindu Singh Yadav & Anr.
FIR No. 57/2007, PS: Special Cell 7/21 PW11 HC Ram Karan On 05.08.2007, he had taken the seized FICN vide RC No. 94/21/07 to Currency Notes Press Nashik Road and deposited the same on 06.08.2007and deposited the receipt with the MHCM on 09.08.2007. He also obtained the result and came back with the FSL Result and the case property on 27.08.2007 and deposited the same in the malkhana.
PW12 ASI Rakesh Ahluwalia He was the part of the police team which apprehended the accused Hindu Singh Yadav and Neeraj on 16.07.2007. He also took the rukka for registration of the FIR in the police station.
PW12 SI Sanjeev Kumar He is the IO of the case to whom investigation was assigned after apprehension of the accused Hindu Singh and Neeraj on 16.07.2007.
PW13 Pawan Singh, Nodal He produced the CDR and record Officer, Idea Cellular of mobile numbers 9891592304, 9911390653 and 9990548863.
PW14 K.R. Mehndiratta, As Deputy Secretary (Home), he Retd. Assistant had conveyed the Sanction Order Consumer Affairs of the Lt. Governor under Section 196 of the Cr.P.C. vide Ex.PW14/A. PW15 R.K. Singh, Nodal He produced the records of mobile Officer, Bharti Airtel nos. 9810219897 and Ltd. 9910210855.
PW16 Pawan Singh, Nodal He produced the CDR and record Officer, Idea Cellular of mobile numbers 9891592304, 9911390653 and 9990548863.
PW16 SI Satender Mohan He is the IO of FIR No. 54 of 15 PS Special Cell who had apprehended Hindu Singh Yadav on 12.09.2015.
PW17 Chander Shekhar He produced the records of mobile State vs. Hindu Singh Yadav & Anr.
FIR No. 57/2007, PS: Special Cell 8/21
Nodal Officer, Bharti nos. 9810219897 and
Airtel Ltd. 9910210855.
12. It is to be noted that the evidence of PW13 Pawan Singh, Nodal Officer, Idea Cellular, PW14 K.R. Mehndiratta and PW15 R.K. Singh, Nodal Officer, Bharti Airtel Ltd. had been recorded during the time Hindu Singh Yadav was absconding. After apprehension of Hindu Singh Yadav, Pawan Singh Nodal Officer of M/s Idea Cellular and Chander Shekhar Nodal Officer of M/s Bharti Airtel were examined as PW 16 and PW 17 respectively in respect of the CDRs of the numbers in respect of which earlier PW13 and PW15 had been examined.
13. Before proceeding further I may also mention that the record reveals that SI Sanjeev Kumar IO was examined in chief in part on 31.03.2011 as PW11 and his further examination in chief was deferred. Thereafter HC Ram Karan was examined as PW11 and ASI Rakesh Ahluwalia was examined as PW12. SI Sanjeev Kumar IO was again examined in chief as PW12 on 03.04.2012. Hence SI Sanjeev Kumar has been examined in chief in part as PW11 and subsequently again examined in chief as PW12 and cross-examined. HC Ram Karan was examined as PW11 and ASI Rakesh Ahluwalia was examined as PW12. It is in this manner that there some discrepancy has crept in assigning PW numbers in respect of these three witnesses.
14. After closure of evidence of the prosecution, statement of Hindu Singh Yadav was recorded under Section 313 of the Cr.P.C. in which he claimed false implication. Hindu Singh Yadav did not wish to lead evidence in defence.
State vs. Hindu Singh Yadav & Anr.
FIR No. 57/2007, PS: Special Cell 9/21
ARGUMENTS
15. Ld. Addl. PP for the State had submitted that there is sufficient evidence to bring home the charges against Hindu Singh Yadav. He submitted that all witnesses have deposed consistently regarding the recoveries effected and conviction of the accused was warranted.
16. Sh. S.P.M. Tripathi Counsel and Amicus Curiae on behalf of Hindu Singh Yadav submitted that there were several inconsistencies in the versions of the prosecution witnesses regarding his apprehension and recoveries being effected from him. No public witness was associated in the same. He drew the attention of the Court to the versions of PW7 and PW9 and submitted that the same cast doubts on the case of the prosecution regarding recoveries. He submitted that there were discrepancies in the manner in which the disclosure statement of Hindu Singh Yadav was recorded and also in the recovery memo. He submitted that as per the case of the prosecution the accused had allegedly concealed wads of FICN in his waist belt but no waist belt of the accused was seized and when the witnesses were cross-examined on this aspect the replies were vague and evasive. No public witness was associated with the recoveries and no credible efforts were made by the police team to involve any public witnesses in the recoveries. He further submitted that the co-accused Neeraj Sudhanshu who was allegedly apprehended with Hindu Singh Yadav in the same transaction stood acquitted as this Court had dis-believed the testimonies of the witnesses in his respect. He submitted that the testimonies of the prosecution witnesses qua Hindu Singh Yadav and State vs. Hindu Singh Yadav & Anr.
FIR No. 57/2007, PS: Special Cell 10/21 Neeraj Sudhanshu were the same. The evidence led in respect of both the accused were indivisible and inseparable from each other. He submitted that the benefit of acquittal of Neeraj Sudhanshu will have to be extended to Hindu Singh Yadav as well. In this regard reliance was placed by the Amicus Curaie on the following case law:-
(i) Urmila Devi Vs. State (N.C.T of Delhi) reported in 2006 (91) DRJ341;
(ii) Deepak Rajak Vs. State of West Bengal, reported in 2007(3) ACR 2832 (SC).
(iii) State vs. Om Prakash, Crl.L.P. 74 of 2013 decided on 05.08.13;
(iv) State vs. Sunil Kumar @ Sagar, reported in 2015 (2) JCC 802;
17. I have heard the Ld. APP for the State and the Ld. Counsel for the accused persons. My findings accused wise are as under:-
FINDINGS CHARGES UNDER SECTIONS 120B 489B / 489C IPC
18. The witnesses relevant to the apprehension of accused Hindu Singh Yadav on 16.07.2007 and recoveries effected from him are SI Kailash Yadav PW7, SI Umesh Barthwal PW9, SI Girish Kumar PW10, SI Sanjeev Kumar IO (examined as PW11 and PW12) and PW12 ASI Rakesh Ahluwalia.
19. PW7 SI Kailash Yadav, PW9 SI Umesh Barthwal and PW 12 ASI Rakesh Ahluwalia in their examination in chief had deposed that six wads of FICN of Rs.1000/- denomination were recovered from Hindu Singh Yadav where as five wads were recovered from Neeraj Sudhansu. This is contradictory to the case of the prosecution as per which five wads were recovered from Hindu Singh Yadav. In cross-
State vs. Hindu Singh Yadav & Anr.
FIR No. 57/2007, PS: Special Cell 11/21 examination PW 9 admitted that in his statement under Section 161 of the Cr.P.C. Ex.PW9/DA he stated to the IO that five wads were recovered from Hindu Singh Yadav. Ex.PW7/A is the seizure memo vide which FICN recovered from Hindu Singh Yadav was seized at the spot. The same records that five wads of FICN were seized from Hindu Singh Yadav whereas six wads of FICN were seized from Neeraj Sudhanshu. There is therefore no clarity as to how many wads of FICN were recovered from Hindu Singh Yadav. The testimonies of the police witnesses regarding recovery are not supported by the contents of the seizure memos.
20. Ex.PW7/A is the seizure memo in respect of FICN seized from Hindu Singh Yadav at the spot where as Ex.PW7/B is the seizure memo of FICN stated to be recovered from Neeraj Sudhansu. Both do not bear any date under the signatures of the author of the said document or its witnesses SI Umesh Barthwal and ASI Rakesh Ahluwalia. PW7 in cross-examination admitted that the same did not bear any date of preparation. However the first page of these documents do mention date of 16-17.07.2007 but the same appears to be written subsequently.
21. As per charge-sheet, FICN of Rs.5,00,000/- in five separate wads denomination of Rs.1000/- were found tucked in the waist belt of Hindu Singh Yadav and five wads of denomination of Rs.1000/- were recovered from underneath the waist belt of Neeraj Sudhanshu. However in cross-examination PW7 and PW 12 ASI Rakesh Ahluwalia deposed that the waist belt of the accused persons was not part of the case property. PW 7 deposed that he could not State vs. Hindu Singh Yadav & Anr.
FIR No. 57/2007, PS: Special Cell 12/21 remember whether Neeraj Sudhansu was wearing any waist belt or not. He again tried to explain that by waist belt he meant the place where the belt was worn. In respect of the waist belt PW9 also deposed that by waist belt he meant the portion of trouser where the waist belt was worn. The testimonies of these witnesses give rise to doubts as to where the accused had concealed the FICN. As per the case set up it seems that the same was concealed in the waist belt. It is therefore not understood as to why the waist belt of the accused was not seized.
22. Ex.PW7/DB is the site plan which at Mark-B reflected the place where the accused were apprehended. Mark-C and Mark E are the places where the Insp. Lalit Mohan Negi and SI Kailash Yadav had taken their positions. However the said site plan does not reflect the position of PW9 although as per the version of the prosecution Neeraj Sudhansu was apprehended by PW9. 30. PW7 in cross-examination admitted that the plan Ex.PW7/DB did not reflect the position of the other members of the police team and the vehicle used to reach the spot.
23. PW7 in cross-examination regarding use of the private vehicles deposed that the same had been arranged by his seniors and he did not have any recollection about the ownership of these vehicles. He could not even remember if in the departure entry the registration numbers of the vehicles were mentioned or not. PW10 SI Girish Kumar in his cross-examination deposed that there were two Santro cars and one Zen car in which they had proceeded to the spot which were driven by raiding team members but he could not remember the numbers of the said private vehicles nor owners of the same. He deposed that he State vs. Hindu Singh Yadav & Anr.
FIR No. 57/2007, PS: Special Cell 13/21 did not know if the IO had mentioned about private cars in any DD before departure or not.
24. PW7 in cross-examination has deposed on 12.05.2010 that the secret information received on 16.07.2007 was reduced in writing vide DD No.14 Ex.PW7/Q. The document Ex.PW7/Q records the the departure of the police team. The same does not bear any date. It further records that the police team had left in three private cars and four motorcycles after secret information had been received that Hindu Singh and Neeraj Sudhansu would be coming outside Lal Shahi Mandir. The said document is a true copy of DD No.14 but the original of the same was never produced and proved on record. In his cross- examination on 06.12.2010, PW7 has deposed that the secret information was received by him and discussed with senior officers but it was not reduced into writing and no memo of the secret information was prepared. As regards the use of the private vehicles, PW7 deposed that the same had been arranged by his seniors and he did not have any recollection about the ownership of these vehicles. He could not even remember if in the departure entry the registration numbers of the vehicles were mentioned or not. He admitted that there was no document appended with the list of documents to the charge-sheet of any DD Entry regarding their departure from the office of the Special Cell.
25. In cross-examination PW7 SI Kailash Yadav deposed that he came to know about the secret information in June 2007 but no DD entry was made regarding the same in the month of June 2007. He deposed that he did not inform the local police of PS Lajpat Nagar State vs. Hindu Singh Yadav & Anr.
FIR No. 57/2007, PS: Special Cell 14/21 about the information of the accused persons residing in their jurisdictional area.
26. Ex.PW7/I is the disclosure statement of Hindu Singh Yadav and PW7/J is the disclosure statement of Neeraj Sudhansu. The first one is handwritten whereas the second one is computer typed. PW7 in cross-examination deposed that IO Sanjeev Kumar had written down the disclosure statements and that both of them were typed. He thereafter admitted that the disclosure statement of Hindu Singh Yadav was handwritten whereas that of Neeraj Sudhansu was computer typed. He tried to explain that as Hindu Singh Yadav was not conversant in English, his disclosure statement was handwritten. He admitted that there were no dates under the signatures of Neeraj Sudhansu.
27. The cross-examination of PW7, PW9 and PW10 reveal that there were several buildings near the place of apprehension of Hindu Singh Yadav but no attempt was made by the members of the police team to join any public person of the locality in the recovery proceedings and apprehension of Hindu Singh Yadav. They only tried to join passersby with their proceedings.
28. As per case of the prosecution, FICN was recovered from the premises at House No.7, Third Floor, Vinoba Puri, Lajpat Nagar, New Delhi where Hindu Singh Yadav was residing with Neeraj Sudhanshu. PW4 is Mahender Kumar who claimed that the said property was in the name of his wife Suman and one Neeraj used to reside there as a tenant. He has not said anything about Hindu Singh Yadav ever having resided there. Even though PW4 was available, it is State vs. Hindu Singh Yadav & Anr.
FIR No. 57/2007, PS: Special Cell 15/21 not understood as to why neither PW4 nor his wife were associated with the recovery proceedings of FICN carried out in his property on the disclosure statement of Hindu Singh Yadav. Further, PW7 in cross- examination deposed that the recovery of FICN from the house at Vinoba Puri, Lajpat Nagar was made only at the instance of Hindu Singh Yadav. He admitted that as per the recovery memo Ex.PW7/N only Hindu Singh Yadav was recorded to be residing at the premises Vinoba Puri Lajpat Nagar. Voluntarily he deposed that accused Neeraj was also staying in the said premises temporarily. He again said that he had no knowledge whether Neeraj was staying in the said premises temporarily or as a permanent resident of the said house. He deposed that there were no documents to show the rights of tenancy of Neeraj.
29. PW9 in cross-examination admitted that he did not even state to the IO about seizure of the steel box and the clothes from the premises at House No.7, Third Floor, Vinoba Puri, Lajpat Nagar, New Delhi. He admitted that he did not tell the IO in his statement under Section 161 of the Cr.P.C. about recovery of five SIM cards of different cellular operators from accused Hindu Singh. He could not remember if the site plan of the house of the accused Hindu Singh was prepared or not. He deposed that house of Hindu Singh was on the third floor but could say anything about the direction of the entrance but deposed that it was a small two room flat. He did not know if the IO requested any neighbour or resident of the locality to join the proceedings. He deposed that they reached the house of Hindu Singh in the morning of 17.07.2007 but could not remember the time. He deposed that the accused Neeraj was also present in his house. He deposed that Hindu Singh was taken to his house after recording his disclosure statement in State vs. Hindu Singh Yadav & Anr.
FIR No. 57/2007, PS: Special Cell 16/21 the office of PS Special but could not remember if any DD entry was recorded to this effect.
30. In the case of State vs. Om Prakash (supra), the Hon'ble High Court of Delhi was considering a 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) 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 used private vehicles without any special circumstances and failed to maintain log books of such private vehicles.
31. In the case of State vs. Sunil Kumar @ Sagar (supra), the Hon'ble High Court was also considering a challenge of the State against an order of acquittal passed by the Trial Court. The Hon'ble High Court upheld the order of acquittal and agreed with the findings of the trial Court to the effect that the site plan did not disclose the location of the police vehicle and did not reflect the existence of adjoining buildings and shops where public persons could have been found; that the site plan is a vital part of the investigation and the same should give a clear description of the spot to which it belongs and that no attempt State vs. Hindu Singh Yadav & Anr.
FIR No. 57/2007, PS: Special Cell 17/21 was made to join public witnesses in the proceedings of the police team.
32. In the present case as well the police team only tried to associate passersby at the spot where Hindu Singh Yadav was apprehended. The same are not genuine and sincere efforts as held by the Hon'ble High Court in the case of State vs. Om Prakash (supra). No record of the use of private vehicles was maintained. No memo of recording the secret information was prepared. At the premises Third Floor, House No.7, Vinoba Puri, Lajpat Nagar, New Delhi, the police team did not try to associate independent and respectable inhabitants of the locality or even the land lord of the premises or her husband PW4 (who were available) and failed to comply with the provisions of Section 100 (4) Cr.P.C. No site plan of the room at the said premises was prepared. The site plan Ex.PW7/DB (of the place of apprehension) has not accurately reflected the position of all the members of the police team which apprehended Hindu Singh Yadav. These deficiencies in the proceedings of the police team further amplifies the contradictions in the testimonies of the police witnesses referred above, giving rise to grave doubts in the case of the prosecution qua Hindu Singh Yadav.
33. In the case of Urmila Devi Vs. State (Supra), the Hon'ble High Court of Delhi has been pleased to hold that where after a trial certain accused stand acquitted, no charges can be framed against another accused who was apprehended after the acquittal of the co- accused in a case where the evidence against the accused is indivisible and inseparable from the evidence led against the acquitted accused. In the case of Deepak Rajak Vs. State of West Bengal (Supra) the Hon'ble State vs. Hindu Singh Yadav & Anr.
FIR No. 57/2007, PS: Special Cell 18/21 Supreme Court was pleased to hold that in the case of acquittal of similarly placed accused on the same set of facts and on similar allegations, benefit of acquittal had to be extended to the other accused facing similar allegations.
34. In the present case co-accused Neeraj Sudhanshu who was apprehended along with Hindu Singh Yadav stands acquitted on the same set of evidence relied upon by the prosecution. The evidences qua Hindu Singh Yadav and co-accused Neeraj Sudhanshu are indivisible and inseparable. In these circumstances the benefit of acquittal of co-accused Neeraj Sudhanshu will have to be extended to Hindu Singh Yadav.
35. Hence for the reasons recorded above, Hindu Singh Yadav stands acquitted for the charges under Sections 120B, 489B / 489C of the IPC on merits as well on the ground that his co-accused Neeraj Sudhanshu stands already acquitted on the basis of the same set of evidence relied upon qua Hindu Singh Yadav.
CHARGE UNDER SECTION 174A IPC
36. As per record, Hindu Singh Yadav was apprehended and arrested on 16.07.2007. He was granted bail. He started abstaining from appearing before the Court with effect from 03.09.2012 and was declared a proclaimed offender vide order dated 12.04.2013. He was subsequently arrested by the officials of Special Cell in FIR No.54/2015 PS Special Cell on 12.09.2015 and produced before the Court. Charge under Section 174A of the IPC was framed against him on 28.09.2015.
State vs. Hindu Singh Yadav & Anr.
FIR No. 57/2007, PS: Special Cell 19/21
37. The Ld. Counsel for the accused did not make any submissions on the charge framed against the accused under Section 174-A of the IPC. The fact of the accused absconding from this Court after being granted bail and having been apprehended again are not in dispute.
38. Section 174-A of the IPC reads as under:-
"174A. Non- appearance in response to a proclamation under section 82 of Act 2 of 1974 .- Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub- section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub- section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine."
39. Perusal of Section 174-A of the IPC reveals that if a person fails to appear on the specified place and time as required by a proclamation issued under Section 82 (1) of the Cr.P.C., he commits the offence under the said Section. The punishment prescribed under Section 174-A of the IPC is in two parts. Firstly for failing to appear in response to a proclamation issued under Section 82 (1) of the Cr.P.C., and secondly where a declaration is made under Section 82 (4) of the Cr.P.C.
40. Section 82 (4) of the Cr.P.C. is in respect of offences State vs. Hindu Singh Yadav & Anr.
FIR No. 57/2007, PS: Special Cell 20/21 punishable under Sections 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the IPC. The accused is charged for the offences punishable under Sections 120B, 489B and 489C of IPC which are not listed in Section 82 (4) of the Cr.P.C.
41. In these facts and circumstances the prosecution has been able to prove that Hindu Singh Yadav is guilty of having committed the offence punishable under Section 174-A Part - I of the IPC beyond any reasonable doubt and he stands convicted of the same.
CONCLUSION
42. The net result of the above discussion is that the accused Hindu Singh Yadav stands acquitted for the charges framed against him under Section 120B of the IPC and under Sections 489B and 489C of the IPC. He stands convicted for the offence punishable under Section 174-A Part-I of the IPC.
Announced in the open Court (REETESH SINGH) on 19th December, 2015 ASJ-02/FTC, PHC/NDD 19.12.2015 State vs. Hindu Singh Yadav & Anr.
FIR No. 57/2007, PS: Special Cell 21/21