Delhi District Court
Additional Sessions Judge (North) : ... vs State on 2 December, 2011
1
IN THE COURT OF SMT. BIMLA KUMARI
ADDITIONAL SESSIONS JUDGE (NORTH) : DELHI
S.C. No. 78/11
ID No. 02401R0288212009
State
Vs.
1 Deepak alias Ghora
S/o Sh. Ramphal
R/o H.Np. 514, MCD Colony,
Jahangirpuri,
Delhi
2 Ali Hussain
S/o Ahmad Hussain
R/o H.No. 652, MCD Colony,
Jahangirpuri,
Delhi
3 Keshav Botham alias Lala
S/o Ganesh Baba
R/o H.No. 1749, B- Block,
Gali No. 50, Sant Nagar,
Burari,
Delhi.
FIR No. 39/09
PS Maurice Nagar
U/S 489B/489C IPC
Sessions Case No. 78/11 Page 1/18
2
Date of Institution: 04.07.09
Date of reserving for judgment: 23.11.11
Date of pronouncement: 02.12.11
JUDGMENT
In the present case, a charge has been framed against accused Deepak U/S 489-C IPC by Ld. Predecessor on 07.08.09. The allegation in the charge is that on 10.04.09 at about 8:45 PM at Bus Stand, Opposite Khalsa College, he was found in the possession of 25 forged currency notes in the denomination of Rs. 100/-bearing No. 4NB552920, which he knew or had reason to believe the same to be forged/counterfeited and intended to use the same as genuine. 2 A separate charge has also been framed against accused Ali Hussain U/S 489C IPC by Ld. Predecessor on the same day. The allegation in the charge is that 10.04.09 at about 8:45 PM at Bus Stand, Opposite Khalsa College, he was found in the possession of 20 forged currency notes in the denomination of Rs. 100/-bearing No. 4NB552920, which he knew or had reason to believe the same to be forged/counterfeited and intended to use the same as genuine. 3 A separate charge has also been framed against accused Keshav Botham U/S 489C IPC by Ld. Predecessor on the same day. The allegation in the charge is that 10.04.09 at house No. 1749, B- Block, Gali no. 50, Sant Nagar, Burari, he was found in the possession Sessions Case No. 78/11 Page 2/18 3 of 7 forged currency notes in the denomination of Rs. 100/-bearing No. 4NB552920, two currency notes bearing No. JSU 296434 and one currency note bearing No. 5KQ488953, which he knew or had reason to believe the same to be forged/counterfeited and intended to use the same as genuine.
4 Accused pleaded not guilty to said charges and claimed trial. 5 To prove its case, prosecution has examined seven witnesses. They are ASI Ranbir Singh(PW-1), HC Dinesh(PW-2), HC Avtar Singh(PW-3), Constable Ravi Khari(PW-4), HC Amarpal Singh(PW-5), Constable Pradeep(PW-6) and ASI Dharambir Singh(PW-7).
6 Statements of accused have been recorded U/S 313 CrPC, wherein they have denied the allegations of prosecution. They have submitted that they have been falsely implicated in this case by the I.O. They have stated that they are innocent. The fake currency notes were not recovered from them. They were not arrested from the place as is alleged by the police. Accused Keshav Botham has submitted that he was lifted from his house on 10.04.09. 7 All accused preferred not to lead evidence in their defence. 8 I have heard arguments from the ld. counsel for accused and ld. Addl. PP for State. Ld. counsel for accused Keshav Botham has prayed for release of accused by submitting that FIR does not contain Sessions Case No. 78/11 Page 3/18 4 the name of accused. Statement of PW-4 is contradictory regarding the arrest of accused. The white envelope, in which the currency notes, allegedly recovered from the possession of accused, were put, is not produced by prosecution. Ld. counsel for other accused did not prefer to submit arguments.
9 On the other hand, ld. Addl. PP has prayed for conviction of all accused by submitting that all the prosecution witnesses have supported the prosecution case. The case stands proved beyond reasonable doubt against the accused.
10 In the present case, chargesheet has been submitted by police against accused U/S 489-B and 489-C IPC. However, Ld. Predecessor has discharged accused Keshav Botham in respect of offence U/S 489-A and 489-B IPC on 07.08.09. Since the allegations against all accused persons are in respect of offence U/S 489-C only, the evidence will be dealt and appreciated in respect of that offence only.
11 In the present case, out of seven witnesses, PW-1 HC Ranbir Singh is the star witness of this case being the complainant. He has deposed that on 10.04.09, when he was present at the office of Operation Cell, at about 8:00 PM, a secret informer came to him. He informed him that two young boys would come at Khalsa College bus stand at 8:30/9:00 PM with fake currency notes to handover the same to someone. The information was given by him to Inspector, Sessions Case No. 78/11 Page 4/18 5 Operation Cell, who gave directions to take appropriate action in that regard. At about 8:05 PM, he made an entry in the roznamcha, vide DD No. 16, Ex. PW1/A and left the office alongwith Constable Amarpal, Constable Ravi Khari, Constable Pradeep and secret informer. They reached the bus stand, opposite Khalsa College. At about 8:40 PM, two young persons were seen coming from the side of Ring Road towards Khalsa College bus stand. Secret informer left the spot, telling him that they were the same persons about whom he had informed. The said two young persons came at the bus stand and started waiting for someone. At about 9:00 PM, when nobody came, the said two persons started walking/going from there and they were apprehended by them. Both the persons were interrogated and their names were revealed as Ali Hussain and Deepak alias Bhola. He [PW-1] informed the accused Deepak and Ali Hussain that he was having information about them having fake currency notes in their possession and they could take the search of raiding team members, prior to their search. But both the accused persons refused to take the search of police officials. He [PW-1] took the search of accused Ali Hussain and from the right side pocket of his pant, 20 notes in the denomination of Rs. 100/- having the same series of number i.e. 4NB 552920 were recovered. The said currency notes were kept in a white envelope and sealed with the seal of RS. Thereafter, search of accused Deepak was taken and from the right side pocket of his pant, 25 Sessions Case No. 78/11 Page 5/18 6 currency notes in the denomination of Rs. 100/- with the same series of number i.e. 4NB 552920 were recovered and kept in a white envelope and sealed with the seal of RS. Both the sealed envelopes were taken into possession vide seizure memo Ex. PW1/B. Inspector, Operation Cell was informed about the arrest and recovery of fake currency notes. He [PW-1] prepared the rukka Ex. PW1/C and sent Constable Amarpal for registration of case, who came back to spot after registration of FIR. ASI Dharambir Singh came at the spot to whom the sealed parcels alongwith the prepared documents and accused Deepak and Ali Hussain were handed over. ASI Dharmbir Singh prepared the site plan at his [PW-1's] instance.
12 He [PW-1] has identified 20 currency notes of Rs. 100 denomination, recovered from accused Ali Hussain as Ex. P-1 and 25 currency notes of Rs. 100/- denomination from accused Deepak as Ex. P-2.
13 In cross-examination by ld. counsel for accused Ali Hussain, PW-1 has deposed that they reached the spot in a private car but he does not remember its registration number. The car was provided by Inspector, Operation Cell. He does not know who was the owner of car. The secret informer accompanied them in the car to the spot. He did not record the names and addresses of the public persons who were requested to join the raid. The entire search and procedure took place at a bus stand opposite Khalsa College. He was carrying Sessions Case No. 78/11 Page 6/18 7 the investigation kit with him and case property recovered from accused was sealed at the spot. He did not prepare the site plan as it was prepared by the second I.O. The case property was sealed in a white envelope and the same was handed over to I.O. The currency notes seized from accused, were neither given serial numbers nor given any seal or mark of I.O. He has denied that accused Ali Hussain was arrested from his house No. 652, Jahangirpuri at 5:00 PM on 10.04.09.
14 In cross-examination by ld. counsel for accused Keshav Botham, PW-1 has deposed that the envelope produced in the court is of yellow colour and bears the signature of ASI Dharamvir Singh. Signatures of accused as well as police officials were not taken on the currency notes. He has denied that the white envelope has not been produced in court since currency notes were not sealed in that envelope by them at the spot. He has further denied that no secret information was received by him on 10.04.09 and accused persons were already in their custody. He has further denied that no raid was conducted in the manner deposed by him and the story is concocted one.
15 In cross-examination by ld. counsel for accused Deepak, PW-1 has deposed that he alongwith police officials reached at the spot at 8:30 PM and after 15 minutes, accused came at the spot.
Sessions Case No. 78/11 Page 7/18 8Constable Amarpal took the rukka to P.S at about 10:50 PM. He does not know at what time, Constable Amarpal came back at the spot after registration of case as he had left the spot and I.O Inspector Dharambir Singh had come to spot for further investigation. He only prepared seizure memo, rukka and pulandas at the spot. He handed over accused persons to I.O ASI Dharambir Singh. He has denied that accused were picked up from their houses or that no fake currency notes were recovered from accused or that police officials did not go to bus stand of Khalsa College to conduct raid or that all writing work was done at P.S itself.
16 Another material witness is PW-4 Constable Ravi Khari. He is one of the members of raiding party, which was constituted by PW-1 ASI Ranbir Singh. He [PW-4] has deposed on the same lines as that of PW-1. He has further deposed that I.O ASI Dharambir Singh arrested accused Ali Hussain and Deepak vide arrest memos Ex. PW4/A and Ex. PW4/B respectively. Their personal searches were conducted vide memos Ex. PW4/C and Ex. PW4/D respectively. Both accused made disclosure statements Ex. PW4/E and Ex. PW4/F respectively. The medical examination of both accused was also conducted and case property was deposited in malkhana. Accused persons were kept in the lock up. On 11.04.09 accused Deepak was produced in court and his police custody remand was obtained.
Sessions Case No. 78/11 Page 8/18 9Accused Deepak took them to D-Block, Gali No. 200, Jahangirpuri, and pointed out towards the house of accused Keshav alias Lala. In that house, Lala was not found. One boy told them that he was the nephew of Lala and Lala was not residing there as he was residing at Sant Nagar, Burari. That boy [nephew of Lala] requested them that he would not come in front of Lala but would show the house of Lala at Sant Nagar, Burari. They boy pointed out the house of Lala and went away from there. They reached the house of Lala, where accused Deepak identified Lala, who was overpowered. On his search, ten notes of Rs. 100/- denomination were recovered from right pocket of wearing pant of accused Keshav. Out of ten notes, seven notes were bearing the series number 4NB552920, two notes were of different serial numbers and one another note was also having different serial number. All ten notes were sealed in an envelope and seized vide memo Ex. PW4/G. Accused Keshav alias Lala was interrogated. He made disclosure statement. Pursuant to his disclosure statement, accused Keshav alias Lala got recovered from iron almirah, one Printer make HP, one packet of papers, one iron box containing rubber, scale, pencil and other items. The articles were seized vide memo Ex. PW4/H. Accused Keshav alias Lala was arrested from his house, vide memo Ex. PW4/I. His personal search was conducted vide memo Ex. PW4/J and case property was deposited in malkhana. He [PW-4] has identified the currency notes Mark Q1 to Q20, allegedly recovered Sessions Case No. 78/11 Page 9/18 10 from accused Ali Hussain as Ex. P-1 and currency notes Mark Q21 to Q45 allegedly recovered from accused Deepak as Ex. P-2 and ten currency notes Mark Q46 to Q55 allegedly recovered from the house of accused Keshav alias Lala as Ex. P-3 [collectively]. 17 In cross-examination by ld. counsel for accused Keshav Botham alias Lala, PW-4 has been confronted with his statement Ex. PW4/DA, wherein the fact that nephew of accused Keshav met them, was not mentioned. He has deposed that the said boy did not tell the exact address of accused Lala but he knew the address of Lala. Site plan was prepared by the I.O. He has denied that accused Keshav alias Lala was already in police custody on 10.04.09 or that they did not take accused Deepak to the house of accused Lala or that nothing was recovered from the possession of accused or that fake currency notes were planted upon him by the police.
18 In cross-examination by ld. counsel for accused Deepak and Ali Hussain, PW-4 has deposed that they all were in civil uniform. Accused persons did not try to run away after seeing police. There was street light at the spot at the time of apprehension of accused persons. Public persons had not gathered when accused persons were apprehended. He has denied that accused persons were lifted from their houses on 10.04.09 and fake currency notes were planted upon them or that nothing was recovered from the possession of accused.
Sessions Case No. 78/11 Page 10/18 11He has denied that all writing work was done while sitting at P.S. Spl. Cell.
19 PW-5 HC Amarpal Singh and PW-6 Constable Pradeep who are also members of raiding party, have deposed on the same lines as that of PW-4, Constable Ravi Khari. PW-7 ASI Dharambir Singh is the I.O of case.
20 In Laloo alias Laloo Ghai V. State, Crl. Appeal No. 17/05 decided on 04.03.10 by Hon'ble High Court of Delhi, it has been observed that In order to succeed in a charge under Section 489C of IPC, the prosecution is required to prove the following:-
1 that the currency note or bank note in question was forged or counterfeit.
2 that the accused was in possession of it; 3 that he at the time of his possession knew, or had reason to believe, that it was forged or counterfeit;
4 that he intended to use it as genuine or that it might be used as genuine.
21 In Anis and Anr. V. State, Crl. Appeal No. 1059/06 and Nand Kishore V. State, Crl. Appeal No. 20/07, decided on 16.12.09 by Hon'ble High Court of Delhi, it has been observed that if a person found in possession of counterfeit currency, instead of giving any Sessions Case No. 78/11 Page 11/18 12 explanation for such counterfeit currency possession, chooses to altogether deny the possession and such a defence is found to be false, the inevitable inference is that he had reasons to believe that the currency notes recovered from him were counterfeit currency and that precisely was the reason why he is denying the recovery from him. The knowledge and intention are state of mind which cannot be proved by direct evidence and have to be inferred from the attending circumstances. Possession of counterfeit currency, coupled with denial of possession and no attempt to explain as to how the appellants came into possession of such currency is sufficient to infer the requisite knowledge and intention on the part of the appellants. No doubt, the fundamental principles of criminal jurisprudence is that it is for the prosecution to prove all the ingredients of the offence alleged to have been committed by the accused, but, when the prosecution has proved all that it could have and the circumstances proved by it point unerringly towards the guilt of the accused, in that case if there exists a fact which is only in the knowledge of the accused and that fact is compatible with his innocence, it is for the accused to bring such a fact in the notice of the court."
It has been further held by Hon'ble High Court that "there is no evidence of any of the appellants having sold any counterfeit Sessions Case No. 78/11 Page 12/18 13 currency note. There is no evidence to prove that they had bought the counterfeit currency notes, recovered from their possession. But, in the facts and circumstances of the case, it cannot be disputed that the appellant had received these counterfeit currency notes from someone, and that is how they came into possession of these notes. Normally, one would buy or receive currency notes from someone unless he prints them or finds them lying somewhere. This is not the case of any of the appellants that he had found these currency notes lying somewhere and had picked them up. It is not possible for the prosecution to prove in each case that the person, who is found in possession of counterfeit currency notes had bought or received them from any particular person. The fact as to how the appellants came into possession of these currency notes is a fact especially in the knowledge of the appellants and in view of Section 106 of the Evidence Act when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. If the person found in possession of currency notes does not tell the Court as to how it had come into their possession and chooses to altogether deny his possession of such currency notes, the Court would be justified in inferring that he had received notes from someone. 22 In the present case, from the reliable and trustworthy testimonies of PW-1 ASI Ranbir Singh and PW-4 Constable Ravi Sessions Case No. 78/11 Page 13/18 14 Khari, it is proved on record by the prosecution that accused Ali Hussain, Deepak and Keshav Botham were found in possession of 25, 20 and 10 currency notes in the denomination of Rs. 100/- respectively. The testimonies of PW-1 and PW-4 cannot be disbelieved only because they are police officers. It is not the case of accused persons that the members of raiding party were having any enmity with them and on that accounts, they have falsely implicated them.
In the present case, there is nothing in the cross- examination of PWs to discredit their testimonies.
In "Tahir V. State, MANU/SC/0089/1996 : [1996] 3 SCC 338, it has been observed by Hon'ble Supreme Court that no infirmity attaches to the testimony of police officials merely because they belong to police force.
In Aher Raja Khima V. State of Shaurashtra, AIR 1956 S.C. 217, it has been observed by Hon'ble Supreme Court that the presumption that a person acts honestly and legally applies as much in favour of police officials as of other. It is not proper and permissive to doubt the evidence of police officers. Judicial approach must not be to distrust and suspect their evidence on oath without good and sufficient ground thereof.
Sessions Case No. 78/11 Page 14/18 1523 Further, PW-7 has deposed that he sent the currency notes to FSL for examination through Constable Pradeep and the FSL result is Ex. PW7/B. In the present case, an objection was raised by ld. counsel for accused on the exhibition of FSL result Ex. PW7/B but I am of the considered view that the said objection is without any substance because the report prepared by a senior Scientific Officer, FSL Delhi is admissible in evidence as per the provision contained in Section 293 Cr.PC. In the present case, it is not disputed that the FSL result Ex. PW7/B is prepared by Devaki Ram, Sr. Scientific Officer [Documents] FSL Delhi. It is further significant to note that as per FSL report Ex. PW7/B the currency notes, recovered from possession of accused persons Mark Q1 to Q55 are counterfeit in nature.
24 In the present case, all the accused have stated in their respective statements U/S 313 Cr.PC that the currency notes were not recovered from their possession. In other words, they have denied the possession of currency notes. But, at the same time, the accused persons have not explained as to how they came into possession of these currency notes. Since, the fact [as to how they came into possession of currency notes] was specially in the knowledge of accused persons, I am of the considered view that in view of Section 106 of Indian Evidence Act, the burden of proving that fact falls upon Sessions Case No. 78/11 Page 15/18 16 the accused persons. Since, the accused have not told the fact as to how the currency notes, which were fake, came into their possession and have altogether denied the possession of currency notes, it is concluded that the accused person had received the notes from someone and they were knowing or had reason to believe that the currency notes were forged. Since, the accused were knowing that the notes, possessed by them were fake, it can be safely concluded that they were intending to use the fake currency notes as genuine or that the fake currency notes might be used by them as genuine. 25 Thus, in the facts and circumstances of this case, I am of the considered view that all the four ingredients, as are discussed in Laloo's case, referred above, are existing in the present case. Further, I am of the considered view that at the time of possessing the currency notes, all the accused knew that the notes were forged and counterfeit and they were intending to use the same as genuine or that currency notes might have been used by them as genuine.
26 In the present case, ld. counsel for accused Keshav alias Lala has submitted that name of accused Keshav was not mentioned in FIR. It is significant to note that FIR Ex. PW3/A has been registered before the arrest of accused Keshav Botham. In these facts, the name of accused Keshav alias Lala is rightly not mentioned in FIR, and accused is not entitled for acquittal on that ground.
Sessions Case No. 78/11 Page 16/18 1727 So far as, the question regarding contradiction in the arrest of accused Keshav is concerned, I am of the considered view that the said contradiction is not of much importance. In the present case, PW- 1 has deposed that accused Ali Hussain and Deepak took them to Jahangirpuri, where one boy who was the nephew of Lala, met them. He told them that accused Lala was not residing there. He took them to Sant Nagar to the house of accused Lala. In other words, the nephew of Lala led the police to the house of accused Keshav. But PW-5 HC Amarpal has deposed that accused Deepak led the police party to Sant Nagar, Burari and at the instance of accused Deepak, accused Keshav was arrested. It is significant to note that PW-7 I.O ASI Dharambir Singh, has categorically deposed that accused Keshav has been arrested at the instance of one person, as he joined the investigation by pointing out the house of accused Lala at Sant Nagar and on the pointing out of that person, accused Lala alias Keshav Botham was arrested.
28 So far as, the contention of ld. counsel for accused Keshav that white envelope [in which the currency notes, recovered from accused were sealed by the police], was not produced by prosecution in the court is concerned, I am of the considered view that this fact will not materially affect the case of prosecution. It is significant to note that PW-7 ASI Dharambir Singh, I.O of case has sent the currency notes, allegedly recovered from accused to FSL for examination.
Sessions Case No. 78/11 Page 17/18 18Those notes are taken out from the envelope by the FSL Authority. After examination, the notes are generally put in the envelope of FSL Authority. Thus, in these facts and circumstances, an adverse inference cannot be drawn against prosecution.
29 In view of above discussion, I am of the considered view that prosecution has successfully proved its case against all accused beyond reasonable doubt. Accordingly, all accused are convicted in respect of offence U/S 489-C IPC.
Announced in the open court today
on 02.12.11 (Smt. Bimla Kumari)
Additional Sessions Judge-II(North)
Tis Hazari Courts, Delhi.
Sessions Case No. 78/11 Page 18/18