Delhi District Court
31 In State vs . Nalini (1999)5 Supreme Court Cases 253 ... on 16 December, 2009
IN THE COURT OF SMT. BIMLA KUMARI
ADDITIONAL SESSIONS JUDGE(NORTH):DELHI
S.C. No.28/08.12.08
State
Vs
(1)Usman Khan @ Reenu, S/o Sh. Kanwar Hussain Khan
(2)Nabi Alludin Sheikh, S/o Sh. Alluddin Sheikh (PO)
(3)Salim @ Salimuddin, S/o Sh. Anwaruddin
FIR NO: 53/2000
PS: Railway Station Sarai Rohilla
U/S 489B&C/120B IPC
Arguments heard: 02.12.09
Judgment announced: 16.12.09
JUDGMENT
In the present case charge was framed by ld. Predecessor on 01.04.02 against accused Usman Khan @ Reenu in respect of offences U/S 120B, 489C and 489B read with Section 120B IPC and Section 25 Arms Act with the allegations that on 07.07.2000 he alongwith coaccused Salimuddin and Nabi Allauddin Shekih (PO) had conspired to traffic in the counter feit currency notes. It was also alleged that on 07.07.2000 at about 1.00 PM on the main gate of Railway Station Sarai Rohilla, he was found trafficing in and possessing the illegal 8 currency notes of Rs.500/ denomination alongwith one revolver and four live cartridges without permit and licence.
2 A separate charge was framed against accused Salimuddin in respect of offences U/S 120B, 489C and 489B read with Section 120B IPC and Section 25 Arms Act with the allegations that on 07.07.2000 he alongwith coaccused Usman Khan and Nabi Allauddin Shekih (PO) had conspired to traffic in the counter feit currency notes. It was also alleged that on 16.07.2000 at H. No. S582, School Block, Shakarpur, he was found trafficing in and possessing the illegal 49 currency notes of Rs.500/ denomination alongwith one revolver and one country made pistol with two live cartridges without permit and licence.
3 Later on, the charge in respect of accused Salim @ Salimuddin was amended on 23.3.08 by ld. Predecessor on an application U/S 216 Cr.P.C, filed by the accused Salimuddin and the charge U/S 25 Arms Act was deleted, as it was found that there was no sufficient ground to proceed against accused Salimuddin U/S 25 Arms Act. 4 To prove its case, prosecution has examined 13 witnesses. They are ASI Parmod Kumar (PW1), ASI Ashok Kumar(PW2), Sh. Rattan Chand(PW3), Ct. Satender Singh(PW4), SI K.K. Puadhyay (PW5), HC Sanjeevan (PW6), Sh. V. B. Deshpandey (PW7), SI Sunil Mane (PW8), Pradeep Srivastava(PW9), Inspector Rakesh Dixit (PW10),HC Nihor Ram (PW11), Sh. M. N. Vijayan(PW12), SI Ramesh Sharma(PW13). 5 Statement of accused Mohd. Usman has been recorded wherein he denied the allegations of prosecution. He has submitted that he was lifted from DDU hospital. On 7.07.07 his mother sent a telegram to Hon'ble Chief Justice of Delhi High Court in that regard. No recovery was effected from his possession. It is a false case against him.
6 Accused Salimuddin has also denied the allegations of prosecution case. He has submitted that it is a false case against him. Nothing has been recovered from his possession. The STD Booth in question does not pertain to him. Inspector Rakesh Dixit has falsely implicated him in this case alongwith two other cases vide FIR No.82/2000 PS Hazrat Nizamuddin and FIR No. 291/2000 PS Darya Ganj. He has been acquitted in both the cases by the Ld. Sessions Courts. Inspector Rakesh Dixit has falsely implicated him as his father refused to allow the stay of some unknown persons in his hotel on the asking of Inspector Rakesh Dixit. 7 Accused Usman has examined his mother in his defence as DW3, who has deposed that on 07.07.02 his son Usman Khan was suffering from fever. He had gone to DDU hospital for check up. When he did not return she went there. On inquiry, it was revealed that his son had been lifted by the police. Thereafter, she sent telegram to the Chief Justice of Delhi High Court. The certified copy of the telegram is Ex.DW3/A. 8 Accused Salimuddin has examined himself as DW1, wherein he has deposed that he has been knowing Inspector Rakesh Dixit since February/March, 2000. He used to bring outsiders(Kashmiries) to stay in his Hotel He (Inspector Dixit) used to ask them (DW1 & his father) to allow the outsides (Kashmiries) to stay there for 56 hours and he used to take them in night. Inspector Rakesh Dixit used to get stayed the outsiders/Kashmiries in his hotel without making any entry in the register or without any identity proof. In the first week of May, 2000 Inspector Rakesh Dixit came alongwith two persons and asked them (DW1 & his father) to allow the stay of the outsiders in their hotel, but his father refused because there was strict instructions of the local police not to allow anyone without entry in the hotel. On that, Inspector Dixit got angry and threatened them. In the end of May, 2000 one official from the Crime Branch, Chankaya Puri came to his hotel and told his father that he (DW1) was required in Crime Branch in connection with some inquiry. He (DW1) got the matter inquired through his counsel and came to know that a case FIR No. 82/2000 PS H. Nizamuddin Railway Station had been registered against him. He (DW1) obtained anticipatory bail in that case. On 17.6.2000, he (DW1) alongwith his counsel went to Crime Branch Chankaya Puri and filed an application to join the investigation of case FIR No.82/2000. Copy of said application was Mark DX1. No reply was filed by the crime branch to his application and he was not called for investigation. On 3.7.2000 he alongwith his counsel and father again went to Crime Branch Chankaya Puri. He filed another application to join the investigation. In reply of the said application, he (DW1) received a notice u/s 160 Cr.P.C. On 16.07.2000 he (DW1) alongwith his father went to meet Insp. Rakesh Dixit and filed reply to notice dated 14.7.2000. He was made to sit in the office and his father was sent out. His father was scolded for having obtained anticipatory bail. Thereafter, he (DW1) was asked to sign certain blank papers, He (DW1) then came to know that two other cases, including the present case, had been registered against him. He is innocent and has been falsely implicated in the cases. He has been acquitted in case FIR No. 82/2000 by the ld. Sessions court on 9.3.09. He has also been acquitted in another case FIR No. 219/2000 by the ld. Sessions Court on 22.12.2008.
9 Accused Salimuddin has examined his father Sh. Anwaruddin as DW2. He has deposed that accused Salimuddin is his son. His son is doing business of Kabadi and he is running a small hotel in the name and style of 'Shahida Guest House' at Matia Mehal, Jama Masjid, Delhi. He knows Inspector Rakesh Dixit. In the month of Feb./March 2000 Inspector Rakesh Dixit used to come to his hotel and take the room without making any entries in the register. On one or two occasions, he let out the room to Inspector Rakesh Dixit. Thereafter, the local police told him that he should not let out any room in the hotel without any entry. Inspector Rakesh Dixit again came with some Kashmiri persons in the first week of May, 2000 and asked him to stay them in his hotel, but he (DW2) refused. On that, Inspector Rakesh Dixit got annoyed and threatened him of dire consequences. Thereafter, Inspector Rakesh Dixit falsely implicated his son in a case in which the anticipatory bail was granted by ld. Sessions court. Thereafter, he alongwith his son and counsel went to Crime Branch Office twothree times and moved an application. Lastly, on 16.07.2000 he alongwith his son went to Crime Branch office Chankaya Puri in pursuance of the notice u/s 160 Cr.P.C, sent by Inspector Rakesh Dixit. He scolded him and made his son sit in the office and he(DW2) was asked to come after one hour. His son was not released. He came to know that his was son falsely implicated in this case.
10 Accused Salimuddin has also examined Mohd. Ziaul Haq as DW4 in his defence. He has deposed that he has been working at the STD of Phoolbi situated at 1123A, Bazar Matia Mehal, Jama Masjid Delhi since 1996 as an Attendant. He has produced the original telephone bill and other documents relating to the said STD. Copies of bills and other documents are Ex.DW4/A. This witness has further deposed that since 1996 till today he is attending the STD booth and the booth is in his full control. The accused Saleemuddin has no concern with the said STD. No key of lock was ever recovered from the STD booth on 16.7.2000 by the police at the instance of accused Salimuddin. Accused Salimuddin has also examined Sh. Bhupender Singh as DW4 (should be DW5). He has deposed that the telephone No.23260030 was allotted to Ms. Phool Bee and the telephone was installed by the order of Commercial Officer in the name of Phool Bee. The order of Commercial Officer is Ex.DW4/B. 11 I have heard the arguments from ld. counsel for accused and Ld. Addl. P.P for State I have perused the case file.
12 In the present case, PW1 SI Parmod Kumar, PW2 ASI Ashok Kumar, PW4 HC Satender Singh, PW10 Inspector Rakesh Dixit and PW13 SI Ramesh Sharma are the material witness being the members of raiding party. After going through the testimonies of these witnesses, I am of the considered view that there are serious infirmities in the prosecution case. There are also material contradictions in the testimony of PWs on material points.
13 From the testimonies of PWs it is not clear as to by whom the secret information was received on 07.07.2000. PW10 Inspector Rakesh Dixit has deposed that on 07.07.2000 at about 12.00 noon, the secret information was received by him when he was present in the office. In crossexamination by ld. counsel for accused PW10 has deposed that secret informer came to him in person in his office. Whereas, PW13 SI Ramesh Sharma has deposed that the secret informer came to his office and met him. The secret informer told him that one member of the Abu Saleem Gang was operating anti national activity in Delhi. The secret information was recorded by the Inspector Rakesh Dixit on his request vide DD No.8 Ex.PW1/A. 14 From the testimonies of PWs, it is not clear as to where members of the raiding party were briefed. PW10 Inspector Rakesh Dixit has deposed that after recording the DD No.8, Ex.PW1/A he constituted a raiding party consisting of SI Ramesh Sharma, ASI Parmod, ASI Ashok, HC Naresh, HC Devender and other constables. In cross examination by ld. counsel for accused, PW10 has deposed that he informed the staff regarding the information before recording the DD entry. He himself constituted the raiding party in the office and had given the instructions to them. In other words the information was briefed by the PW10 in the office of Spl. Cell itself. But PW13 SI Ramesh Sharma has deposed that at around 12.50 PM, he alongwith the members of raiding party and secret informer reached at Sarai Rohilla Railway Station. Police vehicle was parked in the parking. Inspector Rakesh Dixit briefed all the members of the raiding party about the secret information. In other words, as per the testimony of PW13, the members of the raiding party were briefed at the parking of Sarai Rohilla Railway Station. 15 From the testimonies of PWs it is not clear as to who were the members of raiding party. PW10 Inspector Rakesh Dixit has deposed that he constituted a raiding party consisting of SI Ramesh Sharma, ASI Parmod, ASI Ashok, HC Naresh, HC Devender and other constables, but in the DD entry No.8 Ex.PW1/A, the name of ASI Parmod Kumar is not mentioned. It is worth noting that it is the case of PW10 that he himself constituted the raiding party in the office of Spl. Cell and gave the instructions to the members of raiding party. Thereafter, he recorded the secret information vide DD entry no.8 Ex.PW1/A. Immediately, after recording the information, they left the office for the spot. The said ambiguity about the name of ASI Parmod Kumar is material one because as per the prosecution case, ASI Parmod Kumar is the initial IO, who has prepared the Rukka Ex.PW1/C and Recovery Memo Ex.PW1/D and got the case registered.
16 From the testimonies of PWs it is not clear as to where the pillow, from which, the alleged two bundles of currency notes were recovered on 16.7.2000, was lying. PW2 ASI Ashok Kumar has deposed that in the room a cot (charpai) was lying with a bedding and a pillow on it. From that pillow, accused Salimuddin got recovered two bundles of currency notes of the denomination of Rs.500/. In other words, as per the testimony of PW2, the currency notes were recovered from the pillow, which was lying on the cot. But, as per the testimony of PW10 Inspector Rakesh Dixit the said pillow was lying on the floor and the two bundles of currency notes were recovered from that pillow. However, PW13 has taken a different stand by deposing that accused Salimuddin got recovered the fake currency notes, which were kept, under the pillow. In other words, as per the testimony of PW13, the fake currency notes were not in the pillow but were lying under the pillow.
17 From the testimonies of PWs it is not clear as to by whom accused Usman was apprehended first. PW1 ASI Parmod Kumar has deposed that he does not know who apprehended the accused Usman first. But PW10 Inspector Rakesh Dixit has deposed that SI Ramesh Sharma had apprehended the accused. However, PW13 SI Ramesh Sharma, has not supported the version of PW10 and deposed that he does not remember as to who apprehended the accused Usman first. 18 From the testimonies of PWs it is also not clear as to where the proceedings/writing work was done by the members of raiding party. PW1 ASI Parmod Kumar has deposed in cross examination that the sketch of the revolver was prepared by him by sitting on the stone lying in the parking. But PW13 I Ramesh Sharma has deposed in crossexamination that all the proceedings were done by him by him on the bonet of the gypsy.
19 Besides the above said contradictions in the testimonies of material witnesses, there are serious infirmities in the prosecution case, which are fatal and cannot be ignored. In the present case no public witness has been joined by the IO of the case despite availability of the public witnesses. He has simply deposed that he asked 34 public persons to join the proceedings, but they left the spot without disclosing their names and addresses. No notice has been served by the IO to the public persons, who did not join the proceedings and left the spot without telling their names and addresses.
20 In the present case, revolver and four cartridges allegedly recovered from the possession of accused Usman were sealed with the seal of Dixit and the seal after use was handed over to Inspector Rakesh Dixit. Since the seal was with Inspector Rakesh Dixit, the possibility of tempering with the case property cannot be ruled out. 21 In the present case, as per the testimony of PW10 Rakesh Dixit the STD booth belonged to accused Saleemuddin. PW10 has denied the suggestion that there is no STD booth in the name of Salimuddin. In other words, STD booth is in the name of accused Salimuddin. But accused Salimuddin has examined DW4 to prove that accused Saleemuddin has no concern with the STD booth and the STD booth pertains to one Phool Bee. Accused Saleemuddin has also examined another witness Bhupender as DW4 who has produced the record of the STD Booth, which shows that the booth was allotted to Ms. Phool Bee. 22 In the present case, one key has been, allegedly recovered on the pointing out of accused Saleemuddin, from the STD booth, and the same was seized vide memo Ex.PW2/F. However, the said key has never been produced by the prosecution during the trial, which is a serious lacuna, which cannot be ignored.
23 In the present case two mobile phones had been recovered. One mobile phone make 'Motorola' is allegedly recovered from accused Usman and the same was seized vide memo Ex.PW2/B. The other mobile phone make 'Soni' allegedly belonging to accused Salimuddin has been recovered from the possession of Mohd. Zaki from the Bar 'Chicken Fry' and was seized vide memo Ex.PW2/L. It is worth noting that mobile make 'Soni' was having No. 9811170685 and the mobile phone allegedly recovered from the possession of accused Usman was having the IEMI number. But IO of the case has got verified the calls details of mobile phones No. 9811251717, 9811008935 and 9811179804 as per the testimony of PW12 M. L. Vijayan. It is not the case of prosecution that these mobile phones were ever seized from the possession of accused and accused were the owners thereof. There is no material on record to show that these mobile phones were used by the accused in pursuance of their criminal conspiracy.
24 In the present case, as per the testimony of PW11 HC Nihor Ram, two pullands were sent to Nasik through HC Mahender Singh vide RC No.36/21. However, PW HC Mahender Singh has not been examined to prove that currency notes were taken by him to Nasik. 25 In the present case, other material witness, namely, Mohd. Zaki, from whose possession mobile phone make 'Soni' has been recovered and seized by the IO vide memo Ex.PW2/L has also not been examined to prove that the mobile phone 9811170685 was belonging to accused Salimuddin.
26 Moreover, the testimony of PW7 V.B. Deshpandey is also not beyond the shadow of doubt. He has deposed that on 07.08.2000, 200 currency notes of the denomination of 500/ were handed over to him and were received from inspector of Inter State Cell Crime Branch. He has further deposed that currency notes were straight away received by him. But at the same time, he has deposed that they were received by a clerk in the office. Moreover, PW7 could not tell whether the notes were sealed in a cloth parcel or a paper parcel. He has deposed that his junior had unsealed the parcle in front of other Gaz. officer and the notes were not unsealed in his presence. It is also worth noting that PW7 has not prepared the report Ex.PW7/A and the same is prepared by his junior. He (PW7) has simply signed the report.
27 In the present case, testimony of PW10 does not seem to be trust worthy and reliable. In crossexamination he has admitted that he served a notice U/S 160 Cr.P.C to accused Salimuddin in case FIR No.82/2000, PS Hazrat Nizamuddin for 16.7.2000. He has denied that accused Salimuddin visited the office of InterState Cell on several occasions to join the investigation of case FIR no. 82/2000. But the record Ex.DW5/A to Ex.DW5/F produced by DW5 shows that on 17.6.2000 accused Salimuddin moved an application Ex.DW5/B to ACP Crime Branch Chankaya Puri to join the investigation of the case FIR No. 82/2000 as per the directions of the court as he was not given any notice by the IO/SHO in pursuance of the bail order Ex.DW5/A. Ex.DW5/C shows that on 03.7.00 accused Salimuddin moved an application to IO, Inspector Rakesh Dixit, wherein it is mentioned that he had already moved two applications for joining the investigation of case FIR No. 82/00, and police did not allow him to join the investigation. It is worth noting that the application Ex.DW5/B has been received by the Reader to the InterState Cell, Crime Branch. In the present case PW10 gave evasive reply by deposing that he does not know that prior to 03.07.2000 a similar application was moved and received by Reader of the branch on 17.6.2000. PW10 has admitted that on 16.7.2000 accused Salimuddin came to the office and filed the reply in pursuance of the notice, which was received by him. Besides this, PW10 has further admitted that FIR No. 82/00 PS Hazrat Nizamuddin and FIR No. 291/2000 PS Hazrat Nizamuddin pertain to his office and he investigated the case pertaining to FIR No.82/00. He has further admitted that he was the only inspector in the branch and all the three cases i.e present FIR, FIR No.82/00, FIR No.291/00 were investigated by his subordinate staff. It is worth noting that accused Saleemuddin has already been acquitted in both the cases pertaining to FIR No. 82/00 and FIR No.291/00 by ld. Sessions Court. 28 It is further worth noting that in this case, PW3 Rattan Chand is the material witness. But this witness has been dropped by ld. Addl. P.P when he did not support the prosecution. The dropping of this witness has was objected by the ld. defence counsel.
29 Moreover, in this case PW9 Pradeep Srivastava has proved the sanction U/S 39 of Arms Act only against accused Nabi Allauddin, who is PO. No sanction U/S 39 Arms Act has been proved in respect of accused Usman Khan.
30 In the present case, accused Usman Khan and Salimuddin have been charged for having committing an offence U/S 120B IPC . 31 In State Vs. Nalini (1999)5 Supreme Court Cases 253 it was held by Hon'ble Supreme Court that the Offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is a legal act by illegal means overt act is necessary. Offence of criminal conspiracy is an exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused had the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever horrendous it may be, that offence is committed.
It was further held that Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused.
It was also held that When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement.
It was further held that a charge of conspiracy may prejudice the accused because it forces them into a joint trial and the court may consider the entire mass of evidence against every accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of the object of conspiracy. The court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all, which is to be avoided.
It was further held that it is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, act and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy.
In 1994 MPLJ 165(174) it was interalia held that Where evidence of witnesses suffered from various infirmities, material omissions are there alongwith inconsistency in names and number of accused persons and no proper corroboration was available from independent source, conviction and sentence of accused under Ss.302.129 r/w S.120B could not be sustained.
32 In the present case there is nothing on record to prove that accused Usman and Salimuddin had conspired alongwith the coaccused Nabi Allauddin Sheikh (PO) to traffic in the counterfeit currency notes. 33 Prosecution has to prove its case beyond reasonable doubt. 34 In Harcharan Singh and another V. State of Haryana, AIR 1974 SC 344, it was held that the function of the court in a criminal trial is to find whether the person arranged before it, as the accused is guilty of the offence, with which he is charged. For this purpose the court scans the material on record to find whether there is any reliable and trustworthy evidence upon the basis of which it is possible to find the conviction of the accused and to hold that he is guilty of the offence, with which he is charged.
35 In view of above discrepancies, I am of the considered view that prosecution has miserably failed to prove beyond reasonable doubt that on 07.07.2000 accused Usman Khan and Salimuddin alongwith their coaccused Nabi Allauddin Sheikh (PO) conspired to traffic in the counter feit currency notes. Prosecution has also miserably failed to prove that accused Usman and Salimuddin were found trafflicing in and in possession of counter feit currency notes or that accused Usman was possessing a revolver and four live cartridges without permit and licence. Accordingly, both the accused are acquitted in respect of the offences they were charged with. Both accused are on bail in this case. Their personal bonds and surety bonds are cancelled. Their sureties are discharged. File be consigned to Record Room with the observation that accused Allauddin Sheikh is PO. Prosecution will be at liberty to reopen the case, as and when accused Allauddin Sheikh is arrested.
ANNOUNCED IN OPEN COURT ON (SMT. BIMLA KUMARI) 16.12.09 Addl.Sessions Judge(North):Delhi