Delhi District Court
State vs . (1) Rahim @ Salman on 17 April, 2015
IN THE COURT OF SH. REETESH SINGH, ASJ-02/FTC
NEW DELHI DISTRICT PATIALA HOUSE COURTS, DELHI
Case ID No. 02403R0149322013
Session Case No. 46/2014
State vs. (1) Rahim @ Salman
S/o. Amiruddin
R/o. G-73C, Om Vihar,
Delhi.
(2) Mohd. Amzad,
S/o. Sh. Shafiq Ahmed
R/o. D-501, J.J. Colony, Bawana,
Delhi.
FIR no. 145/2013
PS: Crime Branch
U/s: 489B/489C/34 IPC and 120B IPC
Date of institution of the case : 18.11.2013
Date on which judgment reserved : 04.04.2015
Date of announcement of judgment : 17.04.2015
JUDGMENT
1. Accused Rahim @ Salman and Amzad are facing trial before this Court for the offences alleged to have been committed by them and punishable under Sections 120B / 489C / 489B of the Indian Penal Code (hereinafter referred to as 'IPC').
2. The case of the prosecution is that on 23.08.2013 at about 6:30pm, Constable (Ct) Narender came to the office of Anti Robbery Cell (ARC) of Crime Branch, PTS Malviya Nagar and disclosed to Inspector (Insp) K.P. Singh that he had received information from a secret informer State vs. Rahim @ Salman and Mohd. Amzad FIR No. 145/2013 1/23 that one person named Amzad, who was involved in the supply of Fake Indian Currency Notes (FICN), would come on that day at about 8-9pm to old Bhairo Mandir, Pragati Maidan Delhi to supply FICN and could be apprehended. Insp. K.P. Singh shared this information with ACP S.S. Giri who directed him to take appropriate action. Insp. K.P. Singh thereafter constituted a police team consisting of Sub Inspector (SI) Sanjay Neolia, Head Constable (HC) Narender, HC Nihal, Ct Naresh, Ct Ravi Kumar, Ct Yogender and Ct Bijender Tyagi and briefed them about information received. Information received from the secret informer was reduced into writing vide DD No.19 dated 23.08.2013 and police team along with Insp. K.P. Singh left for the spot in a Toyota Qualis vehicle and on the route they passed through Chirag Delhi, BRT Corridor Mool Chand Flyover, Nizamuddin, High Court and reached the spot at about 7:45pm.
3. SI Sanjay Neolia tried to associate 7-8 persons from public to join the proceedings but all of them declined after citing their genuine reasons without disclosing their names and addresses. Due to lack of time, no notice could be served on these public persons. The private Toyota vehicle was parked about 50 yards from the Bhairo Mandir and Insp. K.P. Singh again briefed the members of the police team and stationed them near the Mandir. At about 8:25pm, one person was came on foot from the direction of Ring Road and stopped near Bhairo Mandir. The secret informer identified this person as Amzad and left the spot. After waiting for about 15 minutes, the said person started to leave. SI Sanjay Neolia with the help of other members of the police team apprehended the accused Amzad who disclosed his complete name and address. Upon cursory search of Amzad, one bundle of currency notes of Rs.1000/- was found in the right pocket of his trousers and another bundle of currency notes of Rs.500/- was found in his left pocket. Upon close examination all State vs. Rahim @ Salman and Mohd. Amzad FIR No. 145/2013 2/23 the notes appeared to be fake. Upon questioning Amzad admitted that these notes were fake. Upon checking, the bundle of currency notes of was found consisting of 100 notes in the denomination of Rs.1000/- each while the other bundle was found consisting of 100 notes in the denomination of Rs.500/- each. Both the bundles of FICN were checked and thereafter tied with a rubber band, put inside a plastic jar and sealed with doctor tape on which seal of 'SN' was affixed. The seal after use was handed over to HC Naresh and the recovered FICN were seized vide seizure memo Ex. PW 4/A. Rukka Ex. PW 4/B of the proceedings was prepared by SI Sanjay Neolia PW 4 and was sent through Ct Naresh PW 7 to the police station for registration of the FIR Ex. PW 1/A. Further investigation of the case was handed over to SI P.C. Yadav PW 9.
4. SI P.C. Yadav reached at the spot of apprehension of Amzad and the seized articles and documents as well as custody of Amzad were handed over him by SI Sanjay Neolia. PW9 interrogated Amzad and arrested him vide memo Ex. PW 7/A, carried out his personal search vide Ex. PW 7/B and prepared the site plan Ex. PW 4/C. Thereafter the police team along with the IO left the spot and reached the office of ARC, Crime Branch. PW9 deposited the case property in the malkhana of PS Crime Branch, interrogated Amzad and recorded his disclosure statement Ex. PW 7/C.
5. As per prosecution, Amzad had disclosed that co-accused Salman was involved in supply of FICN and that on 23.08.2013 he had procured FICN worth Rs.1,50,000/- from Salman and had come to Bhairo Mandir, Pragati Maidan to sell the same on the asking of Salman but was caught. He disclosed that Salman was staying at Baratooti and could also be found in Uttam Nagar and that Salman had to go to West Bengal on State vs. Rahim @ Salman and Mohd. Amzad FIR No. 145/2013 3/23 next day. He disclosed that he had seen the residence of Salman in West Bengal and could get Salman arrested. He further disclosed that he had kept some more FICN in his own house in Delhi which he could get recovered. He disclosed that he could get the accused Salman caught from West Bengal and from his places at Delhi and could get recovered FICN from him. He further disclosed that he had supplied FICN procured from Salman in Meerut and Aligarh and could get these persons apprehended.
6. As per prosecution, police custody remand of the accused Amzad was obtained. At that stage, the IO was looking for co-accused Rahim @ Salman and on 30.08.2013 information was received that accused Rahim @ Salman would come to his house at Om Vihar, Uttam Nagar at about 6 pm to fetch his clothes and could be apprehended. The IO along with the police team reached near Nawada Metro Station with the accused Amzad. One person was seen passing by the Metro Station who was identified by Amzad as co-accused Rahim @ Salman who was apprehended and interrogated. Rahim @ Salman disclosed that he supplied FICN to the accused Amzad. Accused Salman was arrested vide memo Ex. PW 5/A, his personal search was carried out vide memo Ex. PW 5/B and his disclosure statement Ex. PW 5/C was recorded on 30.08.2013.
7. In his disclosure statement Ex. PW 5/C, accused Rahim @ Salman disclosed that he was living as husband and wife with accused Nazira (apprehended later on) who was a resident of West Bengal. He disclosed that Nazira used to get FICN from Faraqqa, West Bengal and distribute it in Delhi. He disclosed that he was also involved in the said racket on the suggestion of Nazira. He disclosed that he had disappeared State vs. Rahim @ Salman and Mohd. Amzad FIR No. 145/2013 4/23 after the accused Amzad was apprehended due to fear of police. He further disclosed that he had kept FICN of Rs.1,00,000/- in his house, out of which he had spent Rs.5,000/- and the remaining was kept in in his house which he could get recovered. He disclosed that he could get the supplier of FICN as well as Nazira apprehended from their places in Delhi, Mushiradbad and Faraqqa, West Bengal.
8. IO on the disclosure of the accused Rahim @ Salman on 30.08.2013 went to his house at G-73C, Om Vihar, Uttam Nagar, Delhi. Accused Rahim @ Salman opened the lock of his house from a key which was recovered from his personal search and he took out two bundles of FICN from the bed box inside the double bed out of which one bundle consisted of 100 FICN in the denomination of Rs.500/- each and another bundle consisted of 90 FICN in the denomination of Rs.500/- each. One single FICN of Rs.500/- was taken out separately and rest of the recovered FICN were seized in a pullanda, kept in a plastic container and sealed with the seal of 'PY' and seized vide memo Ex.PW 5/D. The case property was deposited with the MHCM.
9. Police custody remand of the accused Rahim @ Salman was obtained. Accused Rahim @ Salman was interrogated for the second time and on 01.09.2013 and he made a second disclosure statement Ex. PW 9/A in which he disclosed that Nazira was involved in supply of FICN as well as drugs and that he used to supply FICN at various places at her instance. He disclosed that Nazira had another place at Badarpur Border where she used to visit frequently but Nazira had not shown him the said place and he could get Nazira apprehended from Badarpur Border.
10. As per prosecution the accused Rahim @ Salman was again State vs. Rahim @ Salman and Mohd. Amzad FIR No. 145/2013 5/23 interrogated and on 05.09.2013 he made a third disclosure statement Ex.PW6/A that Nazira had taken another place in Chattey Wali at Bara Hindu Rao, Delhi on rent where her two children were staying and that he (Rahim @ Salman) also used to stay in the said room sometimes and on the asking of Nazira both these children and he (Rahim @ Salman) supply FICN and drugs. He disclosed that some FICN were kept in the said house which he could get recovered. On this disclosure, police team along with Rahim @ Salman reached at house no. 6710, Gali Chattey Wali, Bara Hindu Rao, Delhi and from the second floor of the said house, the accused Rahim @ Salman took out a key kept under the brick on the staircase and opened the house. One iron box was kept inside the house which was opened by Rahim @ Salman and found to be containing one packet of FICN having 60 FICN in the denomination of Rs.1000/- each. One currency note was taken out and remaining FICN were kept in a plastic jar sealed with the seal of PY and seized vide seizure memo Ex.PW 6/B, which were deposited with MHCM.
11. IO thereafter sent the FICN to Currency Notes Press Nashik Road. Prior to obtaining the report from the Currency Notes Press, charge-sheet was filed against the accused persons under Sections 120B IPC and 489C/489B/34 IPC. The report of said authority was filed along with a supplementary charge-sheet.
12. On 11.12.2013 charges were framed against both the accused persons to which they pleaded not guilty and claimed trial. Subsequently, on an application under Section 216 of the Cr.P.C. of the State, an altered charge was framed on 15.07.2014 with respect to the place of recovery of FICN to which accused persons pleaded not guilty and claimed trial.
State vs. Rahim @ Salman and Mohd. Amzad FIR No. 145/2013 6/23
13. In all prosecution examined ten witnesses to bring home the charges against the accused persons. The details of the witnesses examined and their relevancy are described here under in tabulated form :-
S.No. Name Relevance
PW1 HC Harmoti Lal He was the Duty Officer who recorded the FIR
Ex.PW1/B.
PW2 HC Jagnarayan He was working as MHCM in PS Crime
Branch
PW3 Ct Amarpal Singh He had taken seized FICN from MHCM and
deposited the same with Currency Notes
Press, Nashik Road and handed over the
acknowledgment to IO.
PW4 SI Sanjay Neolia He was part of the police team regarding
apprehension of the accused Amzad and
recoveries made from them on 23.08.2013.
PW5 HC Yatender Singh He was part of the police team regarding apprehension of the accused Rahim @ Salman and recoveries made from him on 30.08.2013.
PW6 Ct Javed He was part of the police team regarding apprehension of the accused person Rahim @ Salman and recoveries made from him on 05.09.2013.
PW7 Ct Naresh He was part of the police team regarding apprehension of both the accused persons and recoveries made from them on 23.08.2013 and 05.09.2013.
PW8 Ct S.S. Bawiskar He along with Ct Amarpal Singh had deposited the FICN in Currency Notes Press, Nashik Road and filed acknowledgment with MHCM.
PW9 Insp. P.C. Yadav He was part of the police team regarding apprehension of both the accused persons and recoveries made from them on 23.08.2013, 30.08.2013 and 05.09.2013.
PW10 SI Ravinder He was part of the police team regarding State vs. Rahim @ Salman and Mohd. Amzad FIR No. 145/2013 7/23 apprehension of the accused Rahim @ Salman and recoveries made from him on 30.08.2013.
14. Before proceeding further, it may be noted that the FICN seized from both the accused persons had been sent to Currency Note Press, Nashik Road for examination through PW3 and PW8. The report of the Currency Note Press dated 09.12.2013 was filed with a supplementary charge-sheet. During course of proceedings on 10.02.2015, the said report was admitted by the accused persons under Section 294 of the Cr.P.C. and accordingly the same was exhibited as Ex.PX. The contents of the report are therefore not in dispute.
15. After prosecution evidence was closed, statements of the accused persons were recorded under section 313 of the Cr. P.C. Both the accused persons claimed false implication and did not wish to lead any evidence in defence.
16. Subsequently an application under section 311 Cr.P.C. was moved on behalf of accused Amzad for cross-examination of PW4, PW7 and PW9. The prayer for cross-examination of PW7 was allowed by order dated 30.03.2015 as the said witness had not been subjected to any cross-examination whatsoever on behalf of accused Amzad. However the prayer for cross-examination of PW4 and PW9 was declined as opportunity to cross-examine these two witnesses had already been availed.
17. The Ld. Addl. PP for the State had argued that there was sufficient evidence on record which proved the complicity of the accused persons in respect of the charges framed against them. On the other hand, State vs. Rahim @ Salman and Mohd. Amzad FIR No. 145/2013 8/23 the Ld. Counsel for the accused persons submitted that there were glaring inconsistencies in the version of the prosecution witnesses from which it was apparent that the accused persons had been falsely implicated in the case.
18. I have heard the counsel for the accused persons and have gone through the record of this case. My findings are as under:-
IN RESPECT OF THE ACCUSED AMZAD
19. As per the prosecution HC Narinder on 23.08.2013 had received information about Amzad to the effect that he would be coming to Bhairo Mandir to hand over FICN. A police team was constituted who went to the said place and apprehended Amzad with FICN. The witnesses who are relevant for the apprehension of Amzad and effecting recoveries from him are PW 4 SI Sanjay Neolia, PW 7 Ct. Naresh and PW 9 Inspector P.C. Yadav. These three witnesses have deposed consistently in their examination in chief about the version of the prosecution.
20. PW 4 was cross-examined by the counsel for Amzad. As his cross-examination is brief the same is reproduced as under:-
"XXXXX By Ms. Reena Singh, ld. counsel for the accused Amzad.
The information was received at about 06.30 PM. We departed from the office at Malviya Nagar at about 07.00 PM. The team was leaded by the Inspector K.P. Singh. We reached near Bhairon Mandir, Pragati Maidan at about 7.45 PM. The team comprised of 8 police officers and a secret informer. I do not remember the number of the qualis. It was a green colour qualis. The vehicle was brought by Inspector K.P. Singh. It is incorrect to suggest that despite there being sufficient time we did not deliberately join any public witness. It is further incorrect to suggest that we had not received any information in the office of Malviya Nagar. It is incorrect to suggest that I am State vs. Rahim @ Salman and Mohd. Amzad FIR No. 145/2013 9/23 deposing falsely being a police officer."
21. As recorded, initially PW7 Ct. Naresh was not cross- examined by counsel for Amzad despite grant of opportunity. However in pursuance of the order dated 30.03.2015, PW7 was cross-examined. In cross-examination PW7 deposed that the secret information was received at about 6:30pm but he was not aware whether any DD entry regarding the same was recorded or not. He could not remember the registration number of the Toyota Qualis or who was driving the same. He could not remember whether any notice was given to the members of the public to join the police proceedings. He deposed that the members of the team did not search each other before searching the accused at the spot. He deposed that SI Sanjay Neolia had counted the recovered FICN. He deposed that the rukka did not have his signatures and that he took the same to the police station in the Toyota Qalis which he drove alone. He could not remember what time he came back to the spot or whether the accused had put any date below his signature on the disclosure statement. He could not remember what articles were recovered from the personal search of the accused but deposed that it was the IO who took the same. He deposed that he could not remember whether Rs.2700/- were genuine currency recovered from the personal search of the accused or not.
22. PW7 further deposed in his cross-examination that he could not remember whether the recovered bundles of FICN were tied with rubber band or not but deposed that the personal search of the accused was conducted at the spot. He could not remember whether the accused Amzad named anybody to whom he was to sell the FICN. He deposed that the IO might have tried to find the source from which the accused got State vs. Rahim @ Salman and Mohd. Amzad FIR No. 145/2013 10/23 the FICN. He deposed that the IO might have taken action regarding contents of the disclosure statement of the accused Amzad. He was not aware whether there is any CCTV camera installed at the spot or not. Rest of his cross-examination is in the form of suggestions which he denied.
23. PW9 was cross-examined by the counsel for accused Amzad. The same is also reproduced as under:-
"XXX By. Ms. Reena Singh, Ld. counsel for accused Amzad.
Accused Rahim was arrested on the pointing out of Amzad and at that time informer was also with us. From Nawada Metro Station we reached G -7 3C, Om Vihar, Phase - 5, Uttam Nagar. Vol. Since, Om Vihar is a kacchi colony some people call it Om Vihar, Phase - 2 and some as Phase - 5. In my charge sheet I have mentioned the address at point X as Phase - V. It is correct that in charge sheet again I have mentioned the address as Om Vihar Phase -II. Vol. Since, Om Vihar is a kacchi colony some people call it Om Vihar, Phase - 2 and some as Phase - 5. As per my information Nazira is the owner of the said house, as it is a kacchi colony I could not find the exact Phase of the house , that is, phase
- 2 or phase - 5 of the house. It is correct that I did not collect any address proof of that house for confirming the address either from the neighbourers. As per my information Nasira is the owner of the said house. It is wrong to suggest that the house Bara Hindu Rao nothing was recovered and that is why I had not taken into possession the keys of the house. It is wrong to suggest that I am deposing falsely."
24. The cross-examination of PW 4 is brief. He has not been cross-examined at all on the material aspects of the case set up against Amzad. PW 4 has been consistent about the time of receipt of the secret information and the time the police team reached the place of apprehension of Amzad. He could not remember the registration number of the vehicle used but deposed that the same was a green coloured State vs. Rahim @ Salman and Mohd. Amzad FIR No. 145/2013 11/23 Qualis arranged by Inspector K.P. Singh. He denied the suggestion that despite having sufficient time no public witness was joined.
25. The cross-examination of PW9 by counsel for accused Amzad as reproduced above was in respect of the case of the prosecution regarding the apprehension of co-accused Rahim @ Salman who was apprehended on 30.08.2013. No questions were put to PW 9 regarding the case set up against Amzad. Hence PW9 was not subjected to any cross-examination in respect of the case set up against Amzad.
26. Ms. Reena Singh, counsel for accused Amzad had argued that even if there was no effective cross-examination of PW4, PW7 and PW9, the cross-examination of these and other witnesses in respect of co- accused Rahim @ Salman revealed a case of false implication. She submitted that the investigation carried out qua Rahim @ Salman was of such a nature that it became apparent that the version of the prosecution qua Amzad could not be believed. She further submitted that no public witnesses were associated in respect of the recoveries effected from Amzad and therefore, the same was not reliable. She submitted that as per the prosecution Amzad had given a disclosure statement as per which he had stated that he had kept some FICN in his residence at Delhi- Bawana which he could get recovered and that he had handed over FICN to persons in Meerut and Aligarh whom he could get apprehended. She submitted that no investigation was carried out at the home of Amzad or at Meerut and Aligarh from which it was apparent that the case set up against him was false.
27. Amzad was apprehended on 23.08.2013. Co-accused Rahim @ Salman was apprehended later on i.e. on 30.08.2013. Weaknesses in the version of the prosecution, if any, regarding the case State vs. Rahim @ Salman and Mohd. Amzad FIR No. 145/2013 12/23 set up against Rahim @ Salman will not enure to the benefit of Amzad. As regards the contention that no investigation was carried out qua the disclosure statement of Amzad, it is to be seen that no questions have been put to PW9 in this regard.
28. With respect to the submission that no public witnesses were associated in the proceedings, PW4 has deposed that he tried to associate some public persons but all of them refused. PW7 and PW9 deposed similarly. In these circumstances it appears that the police team did make efforts to join public persons but they did not cooperate. I n the case of Gian Chand v. State of Haryana reported in (2013) 14 SCC 420 the Hon'ble Supreme Court was pleased to refer to the law on the said question and hold as under:-
"The wise principle of presumption, which is also recognised by the legislature, is that judicial and official acts are regularly performed. Hence, when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe that version to be correct if it is not otherwise shown to be unreliable. The burden is on the accused, through cross-examination of witnesses or through other materials, to show that the evidence of the police officer is unreliable. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume that police action is unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
29. It was further observed by the Hon'ble Supreme Court in the case of Gian Chand v. State of Haryana that:-
"37. Section 114 of the 1872 Act gives rise to the State vs. Rahim @ Salman and Mohd. Amzad FIR No. 145/2013 13/23 presumption that every official act done by the police was regularly performed and such presumption requires rebuttal. The legal maxim omnia praesumuntur rite it dowee probetur in contrarium solemniter esse acta i.e. all the acts are presumed to have been done rightly and regularly, applies. When acts are of official nature and went through the process of scrutiny by official persons, a presumption arises that the said acts have regularly been performed."
30. In the case of Gian Chand v. State of Haryana (supra) the Hon'ble Supreme Court was pleased to hold that not joining a public witness by the police would not be fatal to the case set up regarding recoveries from the accused. It was held that the presumption prescribed under section 114 of the Evidence Act regarding official acts having been performed regularly is attracted to the acts of the police. Such presumption was rebuttable and the onus to rebut the same would be on the accused. The ratio laid down by the Hon'ble Supreme Court applies squarely to the present case. A presumption arises in respect of the recovery proceedings of the police team which was to be rebutted by the accused Amzad either by cross examining witnesses or from any other material. In the present case there is no effective cross-examination of PW4 and PW9.
31. I have referred to the cross-examination of PW7. There is nothing material in the cross-examination of PW7 which contradicts the version of the prosecution in such a manner so as to rebut the presumption under Section 114 of the Indian Evidence Act regarding recovery of FICN from Amzad. At best it can be said that the PW7 could not remember certain aspects. This can be explained by the fact that the recoveries from the accused Amzad were made on 23.08.2013 and almost two years have passed since then. PW7 initially was not examined at all. He was recalled for cross-examination subsequently on an State vs. Rahim @ Salman and Mohd. Amzad FIR No. 145/2013 14/23 application of the accused Amzad. Even thereafter he was consistent on the aspect that a Toyota Qualis vehicle was used in apprehension of the accused and in respect of the time when the police reached at the spot. He was also consistent on the aspect that it was he who had taken the rukka to the PS for registration of the FIR.
32. As regards contents of the disclosure statement of the accused Amzad and that no investigation was carried out at his house although he had disclosed that he head kept some FICN in his house, it is to be seen that as per the prosecution, the said disclosure statement was recorded by the IO in the police station and not at the spot. PW7 was not a witness to the same. Questions in this regard ought to have been put to PW9 in his cross examination but the same has not been done. Hence, there is nothing in the cross-examination of PW7 which could come to the benefit of the accused Amzad.
33. The accused Amzad has been unable to rebut the presumption in respect of the official acts acts of the police having been performed regularly. No other material has been produced to demonstrate that the version of PW4, PW7 and PW9 was not reliable. In these facts and circumstances the prosecution has been able to establish beyond any reasonable doubt that Amzad was found in possession of FICN to the tune of Rs.1,50,000/- on 23.8.2013.
34. Section 489B of the IPC makes it punishable to sell to, or buy or receive from, any other person, or otherwise traffic in or use as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit. 489C of the IPC makes it punishable to keep in possession any forged or counterfeit State vs. Rahim @ Salman and Mohd. Amzad FIR No. 145/2013 15/23 currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine. The report of the Currency Notes Press Nashik Road Ex.PX opines that the recovered currency-notes were fake. The amount of FICN recovered from the accused Amzad i.e. Rs.1,50,000/-. The magnitude of the recovery makes it apparent that such possession was for the purposes of trafficking. It is more so because he had come Bhairo Mandir and was waiting for some person.
35. For the reasons recorded above Amzad is found guilty of the offences under sections 489-B and 489-C of the IPC.
36. My findings in respect of the charge under section 120-B IPC with respect to Amzad is at a later part of my judgment.
AS AGAINST RAHIM @ SALMAN
37. The facts relating to Rahim @ Salman have already been recorded above. As per the prosecution, he has given three disclosure statements and recoveries have been effected from him on two occasions i.e. 30.08.2013 and 05.09.2013. The witnesses of apprehension and recovery from Rahim @ Salman are PW 5 HC Yatender Singh, PW6 Ct. Javed, PW7 Ct. Naresh, PW9 Inspector P.C. Yadav and PW10 SI Ravinder.
38. In respect of the apprehension and recoveries on 30.08.2013, PW5, PW9 and PW10 are relevant. In respect of recoveries on 05.09.2013, PW6, PW7, PW9 are relevant.
APPREHENSION AND RECOVERIES ON 30.08.2013 State vs. Rahim @ Salman and Mohd. Amzad FIR No. 145/2013 16/23
39. As per the prosecution on 30.08.2013, accused Amzad was in police custody and the police team were present with him in the area of Baratooti Chowk, Sadar Bazar. PW5 in his examination in chief deposed that a secret informer had met the IO and revealed that the accused Rahim @ Salman would be going to his house at Om Vihar, Uttam Nagar. The police team reached near Nawada Metro Station, Uttam Nagar and they observed that Rahim @ Salman was proceeding towards his house and was pointed out by Amzad and then apprehended. The IO tried to involve 5-6 persons of the public in the proceedings but they refused. In cross-examination, PW5 deposed that the police team had lodged their departure entry but he could not remember the time of departure. He deposed that they were at Baratooti Chowk at 4 to 5 pm. He admitted that they had not joined any public person in the investigation.
40. PW9 does not state in his examination in chief that the information was received regarding accused Rahim @ Salman from any secret informer. He deposed that the accused Rahim @ Salman was passing by the Nawada Metro Station when he was identified by Amzad. PW10 in his examination in chief has deposed that they had left the police station at 4pm and had reached Baratooti Chowk Sadar Bazar at 5:45pm and the IO received secret information about presence of Rahim @ Salman at his house. When they reached Nawada Metro Station, Amzad pointed out Rahim @ Salman on the road. In cross-examination, PW10 deposed that he had gone to Nawada Metro Station in his personal car but he could not remember the name / make of his car. He could not remember from which gate of the Metro Station Rahim @ Salman had exited. He did not know how the identity of Rahim @ Salman was established or confirmed by the police team.
State vs. Rahim @ Salman and Mohd. Amzad FIR No. 145/2013 17/23
41. As per the case of the prosecution, after the arrest of Rahim @ Salman, his personal search was carried out vide Ex.PW5/B. His personal search revealed cash of Rs.370/-, one brown coloured purse and one key. The search memo was witnessed by PW5 and PW10. At the foot of the memo there is a note which states that "the key had been kept aside as the same will be used for opening the house of the accused and thereafter it will again be kept in jamatalashi."
42. PW5 in his examination in chief has deposed that Rahim @ Salman had led the police team to his house G-73C, Om Vihar Phase-V and he opened the door of the house by taking out keys from his pocket. In cross-examination PW5 admitted that no public person had been joined as a witness throughout the investigation. He deposed that the ownership of the said house was not verified in his presence. He deposed that the key was not seized and that the house was locked after the police team returned. He was not aware who was in possession of the key. PW9 in cross-examination deposed that no other person was present in the said house at the time of recovery other than the accused. He deposed that he had not prepared the site plan of the said house. PW9 further admitted that he had not effected any DD Entry in the police station after coming back from the said house. PW10 in his cross-examination deposed that he did not remember as to what had been recovered from the accused Rahim @ Salman at the time of his arrest even though he had signed on his personal search memo. He could not remember the contents of the personal search memo. He deposed that the said house was opened by a key by the IO. He could not remember as to how they got the key. He did not know as to what happened with the key of the said house.
State vs. Rahim @ Salman and Mohd. Amzad FIR No. 145/2013 18/23 RECOVERIES ON 05.09.2013
43. As per the prosecution, accused Rahim @ Salman had given a third disclosure statement in pursuance to which he led the police team to House No. 6710, Gali Chatteywali, Bara Hindu Rao. Rahim @ Salman took the police team to the second floor of the house which was locked. He took out a key from under a brick kept on the chattey and open the door. In cross-examination, PW6 deposed that he did not know whether the IO had recorded any DD Entry regarding the departure. He did not know when they left from the police station. He did not know whether the ownership of the said house was verified or not. He could not remember the time of seizure of the FICN from this property. PW7 in cross- examination deposed that the IO had requested public persons to join investigation but they refused and that the IO had not given any notice to them. PW7 was not aware as to what happened to the key after locking the house at Bara Hindu Rao. He was not aware whether the IO had asked public persons to join the process of recovery of FICN at Bara Hindu Rao.
44. PW9 in his cross-examination has deposed that he did not verify the ownership of the house at Bara Hindu Rao but deposed that the possession of the house was with accused Rahim @ Salman. He deposed that he did not inquiry as to who were living in the adjoining houses and that he did not ask the neighbours to join the investigation. He deposed that he did not take into possession the keys of the house at Bara Hindu Rao. He deposed that the accused Rahim @ Salman put the key of the house back under the brick and thereafter the police team left the premises.
State vs. Rahim @ Salman and Mohd. Amzad FIR No. 145/2013 19/23
45. From the version of the prosecution witnesses namely PW5, PW6, PW7, PW9 and PW10, there are sufficient contradictions which demolish the presumption under Section 114 of the Indian Evidence Act regarding the recoveries from the accused Rahim @ Salman on 30.08.2013 as well as on 05.09.2013. None of the neighbours and / or owners of the houses from which the recoveries were effected were examined or questioned by the IO. There are contradictions regarding the key recovered from the accused Rahim @ Salman which was used to open the premises on 30.08.2013. PW10 does not even know what was recovered from the accused Rahim @ Salman at the time of his arrest even though he signed on the personal search memo but he could not remember the contents of personal search memo Ex.PW5/B which recorded that on its foot that a key was retained to open the house of the accused. PW10 could not even remember how they got the key and did not know what ultimately happened to said key.
46. PW5 deposed that they were at Baratooti Chowk on 30.08.2013 between 4 to 5 pm whereas PW9 had stated that they reached that place at 5:45pm. PW5 could not remember what happened to the key of the house used to open the premises on 30.08.2013. He was not even aware as to who was in possession of the said key. PW9 / IO had deposed that he did not prepare the site plan of the house from which the recoveries were made on 30.08.2013.
47. As per prosecution the accused Rahim @ Salman was apprehended near Nawada Metro Station on 30.08.2013 where the police reached on prior information from a informer. They had taken accused Amzad with them as he who could recognize Rahim @ Salman. PW10 deposed that he had gone Nawada Metro Station in his personal car but State vs. Rahim @ Salman and Mohd. Amzad FIR No. 145/2013 20/23 he could not remember either its make or registration number. It is strange that the owner of a car would have no recollection of its make or registration number. PW10 could not remember from which gate the accused Rahim @ Salman exited. He also did not know how the identity of the accused Rahim @ Salman was established or confirmed by the police even though it was the case of the prosecution that Rahim @ Salman was identified by Amzad.
48. Similarly in respect of the recoveries made on 05.09.2013, as per version of the prosecution, the accused had taken out a key kept under a brick outside the house which was used to open the house and thereafter the key was put back under the brick. No owner or neighbour of the house was questioned or sought to be associated to the proceedings by the IO. PW7 was not aware what happened to the key after locking the house on 05.09.2013. such contradictions in the version of the prosecution witnesses are sufficient to to demolish the presumption of the regarding the acts of the police under Section 114 of the Evidence Act.
49. In these facts and circumstances, in the opinion of this Court, there are serious infirmities in the version of the prosecution in respect of their case against Rahim @ Salman. The prosecution has been unable to prove, beyond reasonable doubt, the charges framed against him. Accused Rahim @ Salman is therefore acquitted of all the charges framed against him.
CHARGE UNDER SECTION 120B OF THE IPC QUA ACCUSED AMZAD
50. Section 120B of the IPC makes punishable an act of a person who is a party to a criminal conspiracy to commit an offence.
State vs. Rahim @ Salman and Mohd. Amzad FIR No. 145/2013 21/23 Section 120A IPC defines 'criminal conspiracy' to mean where two or more persons agree to do or cause to be done an illegal act.
51. In the present case, there is no material produced by the prosecution to establish that the accused Amzad was a party to a criminal conspiracy with any person. The prosecution had claimed that the disclosure statement of Amzad revealed that he was in conspiracy with the accused Rahim @ Salman to commit the offences as alleged.
52. Section 10 of the Evidence Act provides as under:-
"10. Things said or done by conspirator in reference to common design.--Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
In the case of State vs. Navjot Sandhu reported in 2005 SCC (Cri) 1715 , the Hon'ble Supreme Court reiterated that statements made by conspirators after they are arrested cannot be brought within the ambit of Section 10 of the Evidence Act as by that time the conspiracy would have ended. Thus the disclosure statement of Amzad recorded after his apprehension cannot be relied upon to establish him being party to any conspiracy. Even otherwise the disclosure statement of Amzad is inadmissible by virtue of the bar under Section 25 of the Evidence Act. Hence, there is no material brought by the prosecution to prove that the accused Amzad was party to any criminal conspiracy. Accused Amzad is therefore acquitted of the charge under Section 120B of the IPC.
State vs. Rahim @ Salman and Mohd. Amzad FIR No. 145/2013 22/23 CONCLUSION
53. The net result of the above discussion is that while the accused Rahim @ Salman is acquitted of the charges framed against him, the accused Amzad is acquitted of the charge under Section 120B IPC but is convicted for the offences punishable under Sections 489B and 489C of the IPC.
Announced in the open Court (REETESH SINGH)
on 17th April, 2015 ASJ-02/FTC, PHC/ND
17/04/2015
State vs. Rahim @ Salman and Mohd. Amzad
FIR No. 145/2013 23/23