Delhi District Court
The State vs Surender Kumar S/O Inderjeet Singh on 22 January, 2010
FIR No. : 109 / 0 4
PS : Shah d ara
IN THE COURT OF SH. GURDEEP SINGH,
ADDL. SESSION JUDGE04, NORTHEAST DISTRICT
KARKARDOOMA COURTS, DELHI.
FIR No. : 109/04
PS : Shahdara
U/s : 489B/489C/34 IPC
Session Case No. : 47/08
Date of Institution : 6.9.2004
Date of Committal : 24.03.2004
Date on which reserved for order : 12.1.2010
Date of delivery of judgment : 22.1.2010
In the matter of
The State
Versus
1. Surender Kumar S/o Inderjeet Singh
R/o H. No. 6767, Qila Madan Sharif Navi Karim
Paharganj, Delhi.
2. Shahood Alam S/o Meer Anul
R/o Vill. Sindhiya, Distt. & P.S. Samastipur, Bihar ...Accused
J U D G M E N T
1. Accused Shahood Alam and Surender were sent up for trial by police of Shahdara to stand trial u/s 489B, 489C/34 on the allegation that on 8.4.2004 at about 8:00 p.m. a secret information was received by special staff at PS Welcome regarding presence Page 1 of 19 FIR No. : 109 / 0 4 PS : Shah d ara of two persons who gives Rs.1000/ of currency note for Rs.500/ and if the raid is conducted they can be apprehended. On this information, a police officer was deputed as decoy customer. He was handed over genuine currency note of Rs.500/ and was asked to strike the deal with the culprits and was instructed to give signal that the deal is finalized. Accordingly he gave the signal and on this they were apprehended and currency note in the denomination of Rs.50/ were recovered from their possession and they were apprehended. After completion of the investigation, the charge sheet has been filed and currency notes were got examined from FSL which gave its reports that recovered currency notes were counterfeit.
2. After supplying the necessary copies, the case was committed to session vide order dated 24.3.2004
3. My Ld. Predecessor after finding prima facie charged the accused vide order dated 16.07.2005 for offence punishable u/s 489B read with section 34 IPC and 489C read with section 34 IPC , to Page 2 of 19 FIR No. : 109 / 0 4 PS : Shah d ara which they pleaded not guilty and claimed trial.
4. The prosecution in support of their case examined as many as 7 witnesses.
5. PW1 HC Sahid Ali, was the decoy customer, who proved the recovery memo of currency note of Rs.500/ as Ex.PW1/A and the hundred notes of Rs.50/ as Ex.PW1/B and the twenty notes of Rs.50/ which was had handed over by him to the IO, he seized the same vide memo Ex.PW1/C. He also proved the handing over memo of Rs.500/ as Ex.PW1/D, which was given to him for purchasing the counterfeit notes. He also proved the recovery memo of 362 counterfeit notes of Rs.50/ having different numbers as Ex.PW1/E, which were recovered from the possession of accused Shahood Alam. He also proved disclosure statement of accused Surender and Shahood Alam as Ex.PW1/F and Ex.PW1/G respectively and also their arrest as Ex.PW1/H and PW1/I, their personal search as Ex.PW1/J and PW1/K. He also identified 136 counterfeit currency notes of Rs.50/ having Page 3 of 19 FIR No. : 109 / 0 4 PS : Shah d ara similar as Ex.P1, 182 counterfeit currency notes of Rs.50/ having similar number as Ex.P2, 163 counterfeit currency notes of Rs.50/ having similar number as Ex.P3 and one currency note of Rs.500/ as Ex.P4. PW5 Ct. Hem Prakash who was the member of raiding party corroborated other witnesses. PW7 SI Dinesh Dahiya was the investigating officer who initially conducted the investigation.
6. The prosecution also examined formal witnesses. PW2 ASI Kishan Dutt was the duty officer who recorded formal FIR on the basis of rukka and proved the same as Ex.PW2/A and PW2/B. PW3 SI Babbn Upadhyay, IO who collected the result from FSL and got filed the challan in the court. PW4 Baljit Singh who deposited the exhibits to FSL. PW6 Sh. Anurag Sharma, Sr. Scientific Officer, FSL, Govt. of NCT of Delhi who examined the currency notes and proved his report as Ex.PW6/A and reported that the recovered currency notes were counterfeit.
7. The statements of accused persons were recorded U/s 313 Page 4 of 19 FIR No. : 109 / 0 4 PS : Shah d ara Cr.PC. The accused persons denied the prosecution evidence and claimed innocence. Accused Surender has stated in his statement that he is doing the work of making bags. One Chikna was the police informer who was purchasing old bags from them and owed Rs.8,000/. On the day of occurrence, he met them at Mother Diary, Motia Khan and he demanded money from him. He stated that he would give Rs.4000/ but he (accused) said that he want his full amount. Thereafter, he settled for Rs.4000/. Chikna made a mobile call to someone and thereafter, six police men came, one of them was in uniform. They surrounded them and taken them to the police station. When he took his mobile phone to call his relative, HC Sahild Ali snatched the same from his hand. He further stated that till date he has not received the same. He is falsely implicated in this case. Accused Shahood Alam also similarly denied the prosecution evidence and stated as coaccused. They said that they want to lead evidence in their defence and examined DW1 Sh. Sushil Kumar.
8. I have heard Sh. Virender Singh, Ld. Addl. PP and Sh. S. K. Page 5 of 19 FIR No. : 109 / 0 4 PS : Shah d ara Sharma and Sh. G. L. Soni, Advocates for accused persons. I have also gone through the record.
9. PW1 Shahid Ali testified that on 8.4.2004, he was posted at PS Shahdara as Head Constable. On that day, he along with SI Dinesh Dahiya, HC Harpal, Ct. Hem Prakash, Ct. Jitender were in the patrolling duty in the area and reached G.T. Road, Shyam Lal College, Shahdara. There,HC Harpal had received the secret information that Shahud Alam and Surender Kumar @ S.K. who were standing in front of Shahdara Bus Stand were involved in the preparation of counterfeit currency after receiving a original currency note of Rs.500/, they gave a counterfeit note of Rs.1000/ and they can be apprehended at the spot, if the raid was conducted. Both persons were standing there and waiting for the customer and having counterfeit not in their possession. IO had organized a raiding party and he had handed over to him a note of Rs.500/ and he was instructed to hand over the same to those persons for receiving the counterfeit currency from them. Before organizing the raiding party, IO asked some public Page 6 of 19 FIR No. : 109 / 0 4 PS : Shah d ara persons to join the investigation but none agreed. IO had prepared the seizure memo of the note of Rs.500/, on which he had obtained his signatures and signatures of Ct. Hem Prakash. Thereafter he had reached at the spot near those two persons who were standing in front of Shahdara Bus Stand and he had talked with them for the exchange of currency notes. Accused Surender had taken from him a note of Rs.500/ and handed over to him twenty counterfeit notes of Rs.50/. After completing the above transaction, he gave signal to the raiding party and both accused persons, were apprehended. From the search of the accused Surender, 100 currency notes of Rs.50/ were recovered from his right side pocket of his pant which appears to be counterfeit currency by looking those notes. All the 100 notes of Rs.500/ were having the same number i.e. 8PW 668005 and they were not having security thread and the picture of Mahatama Gandhi at the place of water mark. He had also handed over the 20 counterfeit notes of Rs.50/ to the IO. The note of Rs.500/ which he had given to the accused Surender was also recovered from his (accused Surender) possession. From the search of the Page 7 of 19 FIR No. : 109 / 0 4 PS : Shah d ara accused Shahud Alam, 363 counterfeit notes of Rs.50/ having different numbers were seized. Both of them made disclosure statement and they were arrested. Thereafter accused persons along with case properties were brought to PS Shahdara and thereafter the accused persons were also taken to Nabi Karim, there they (police) tried to trace the persons Naushad, Dilip and Zakir who used to provide the counterfeit currency to these accused persons but they could not be traced. He was corroborated by PW5 Ct. Hem Prakash regarding receipt of secret information by H. C. Harpal, organizing of raiding party, deputation of HC Sahid Ali as bogus customer and apprehension of accused persons and recovery of counterfeit currency note and genuine currency note given to the decoy customer for purchase of counterfeit currency note. PW7 SI Dinesh Dahiya IO also corroborated other witnesses regarding disclosure of secret information by H. C. Harpal Singh to him, organizing of raiding party, deputation of HC Sahid Ali as bogus customer and apprehension of accused persons and recovery of counterfeit currency note and genuine currency note given to the decoy Page 8 of 19 FIR No. : 109 / 0 4 PS : Shah d ara customer for purchase of counterfeit currency note. He stated that he sealed the parcels with the seal of DD and after use the seal was handed over to HC Sahid Ali. He prepared rukka and got registered the FIR through HC Sahid Ali. He also prepared site plan Ex.PW1/DA and arrested accused persons vide seizure memo and thereafter investigation was transferred to PS Shahdara as per standing order of DCP.
10. PW3 Babban Upadhyay testified that on 6.7.2004, he was posted at PS Shahdara and the investigation of this case was marked to him by the SHO. He collected the FSL result from Rohini and filed the chargesheet.
11. Ld. Defence counsel submitted that the material witness HC Harpal Singh has not been cited as witness by the prosecution. Secondly it is submitted that there are material inconsistency between the testimony of the witnesses examined by the prosecution. Further it is submitted that despite the presence of public person, no public persons were joined as witness in the Page 9 of 19 FIR No. : 109 / 0 4 PS : Shah d ara investigation and currency notes were planted on the accused persons as they were having dispute about money transaction with the informer of the HC Sahid Ali. Further submitted that the IO of this case who was initially entrusted with the investigation has not been examined. Ld. Defence counsel cited Umashanker v. State of Chhattisgarh, 2001 Crl. L. J. 4696 and K. Hashim v. State of T.N. (2005) 1 Supreme Court Cases 237.
12. Firstly, I shall take up the arguments regarding inconsistency.
PW1 testified in his crossexamination that they started patrolling at about 7:00 p.m. from the police station and apprehended the accused persons at about 8:00 p.m. At about 12:00/12:30 a.m. they took the accused persons to PS Shahdara. They had made departure entry in DD Register but he does not remember the number of the same. The secret information was received at about 7:45 p.m. by H.C. Harpal Singh near Shyam Lal College. Secret informer accompanied them to the place of arrest of the accused persons. He admitted that when the secret information was passed over to them by SI Dinesh Dahiya, it was peak hours Page 10 of 19 FIR No. : 109 / 0 4 PS : Shah d ara and many public persons were passing through there. 4/5 public persons were asked to join the raiding party but none of them agreed. Names and addresses of those persons were not reduced into writings. No DTC employee or other government employee was present at Bus Terminal at that time. There were two gates at Shahdara Bus Terminal on the date of occurrence. However the site plan Ex.PW1/DA shows only one gate of the bus terminal. He admitted that the Shahdara Bus Terminal is at a walking distance from Police Station Shahdara.
13. On the other hand PW5 Ct. Hem Prakash in his cross examination stated that the secret information was received by HC Har Pal Singh at around 7:00 p.m. at Shyam Lal College. Accused persons were arrested at about 8:00 pm and were brought to police station at about 11:30/11:45 p.m. HC Harpal had passed the information to him and SI Dinesh Dahiya but the said information was not passed to SHO or ACP concerned. He also admitted that at the time they received information, the spot was heavily crowded being peak hours and many people were present Page 11 of 19 FIR No. : 109 / 0 4 PS : Shah d ara at the bus stand. The said information was passed to 5/6 passersby and they were asked to join the investigation but they refused and left the spot without disclosing their names and addresses. The IO did not pass over the information to the government officials working at bus stand. He stated that he reached at the spot at about 7:30 p.m.
14. On the other hand PW7 SI Dinesh Dahiya stated that he had informed the senior officers with respect to the secret information. He stated that they conducted the raid at about 7:00 p.m. at Shahdara Bus Terminal. They left the office of Special Staff, Welcome at about 6:45 p.m. and it took 3/4 minutes to reach from the office of the Special Staff, Welcome to Shahdara Bus Terminal. He stated that he does not know how many gates are there in Shahdara Bus Terminal but he is sure about two gates. He however stated that the bus terminal was not over crowded however few peoples were present there. He does not remember whether bus conductor or driver or other government officials were present there or not. He stated that he arrested the accused Page 12 of 19 FIR No. : 109 / 0 4 PS : Shah d ara persons at about 11:30 p.m. and they remained at the spot till 12:00 mid night.
15. Therefore, there are inconsistencies with respect to the timing in the testimonies of these three witnesses. All the witnesses are consistent that public persons were available at the Shahdara Bus Terminal and they were asked to join the investigation but they did not join the investigation and IO was not sure whether any government official was present at the spot or not whereas the place, DTC Bus Terminal, is thickly crowded place, where always ticket checker and other staff remains present. Since the raid was conducted after receiving the secret information, therefore, there was ample time with the police officials to join some government officials if the public persons were not willing to cooperate with them. It was also not odd hours when it was difficult to get the witness join which would give the credence to their version. Further nonexamination of HC Harpal Singh, who received the secret information and IO, who was initially entrusted with the case has caused prejudice to the defence of the accused persons Page 13 of 19 FIR No. : 109 / 0 4 PS : Shah d ara as they could not get any opportunity to crossexamine them and test their veracity about the secret information and whether the investigation was carried out fairly.
16. Now coming to the another important aspect of the matter. IO had prepared site plan of DTC Bus Terminal, which is Ex.PW1/DA, where allegedly accused persons were standing and waiting for customer for counterfeit currency notes. The said bus terminal is shown in site plan and the two places where the accused allegedly were standing is at point A. The said bus terminal is shown having only one gate. Whereas all the witnesses have categorically stated that there are two gates, therefore, the site plan Ex.PW1/DA is not according to the spot and IO for the reasons best known to him has shown only one gate of the bus terminal. On the other hand, the accused persons have suggested to the witness that the accused persons were falsely implicated at the instance of informer as he has some money transaction with them. The accused persons have also suggested that the accused persons were arrested from Tea Stall, Sahid Page 14 of 19 FIR No. : 109 / 0 4 PS : Shah d ara Mother Diary, Motia Khan Chowk, Paharganj, Delhi instead of Shahdara Bus terminal. PW1 showed his ignorance whether accused Surender runs a small factory of manufacturing of school bags at his residence and the informer had earlier bought certain school bags from this accused and since Surender had demanded his dues, the informer had got him implicated in this case. Accused Surender had stated in his statement u/s 313 Cr.PC that he is doing work of making bags. One Chikna was the police informer who was purchasing old bags from them and owed Rs.8,000/. On the day of occurrence, he met them at Mother Diary, Motia Khan and he demanded money from him. He stated that he would give Rs.4000/ but he said that he want his full amount. Thereafter, he settled for Rs.4000/. Chikna made a mobile call to someone and thereafter, six police men came, one of them was in uniform. They surrounded them and taken them to the police station. When he took his mobile phone to call his relative, HC Sahild Ali snatched the same from his hand. He further stated that till date he has not received the same. Page 15 of 19 FIR No. : 109 / 0 4 PS : Shah d ara
17. DW1 Sh. Sushil Kumar testified that on 4.4.2004, it was Sunday, he was waiting for a auto near Mother Dairy, Motiakhan Mkt., Paharganj, Delhi as he had to go Sultanpuri in the 'Namkaran' of grandson of Bhairo Prasad. One Surender, who was already known to him, and two other persons alighted from the TSR. Again said, were already standing there. The passengers alighted from the both TSR, one of them having beard was in police uniform and other was in plain clothes. They apprehended Surender as well as two of his friends. Accused Surender tried to call at his house but same was not allowed. The phone was snatched by those persons. He intervened in the matter and asked those persons to allow him a call to his house so that he could inform his family members. They also misbehaved with him and thereafter he went from there. He does not know what happened thereafter. He was crossexamined he testified that he is a pujari at a temple and accused Surender used to come there. He remembers the date of incident as there was 'namkaran' ceremony of grandson of Bhairo Prasad. He could not tell the date of Diwali or Holi in the year 2008. Several public persons Page 16 of 19 FIR No. : 109 / 0 4 PS : Shah d ara were gathered there. He could not tell any of the persons present there. He voluntarily stated that he does not know whether the accused was apprehended wrongly or rightly. He did not go to the house of accused as he is not having his residential address. He stated that after he was bail out from the court, he met him in the temple and he asked him about the incident. Accused told him that he has been falsely implicated in a case of cheating in Shahdara Police Station. He did not make any statement to the higher police official or gave in writing about the incident which he had witnesses. He voluntarily stated hat the accused had not approached him for the same. He does not know the name of other two persons who were also apprehended by the police alongwith the Surender.
18. It is settled law that the defence witness is entitled to equal treatment to that of prosecution witness and if the version of defence witness is found to be reliable, his testimony must be accepted. In the present case the version given by the accused persons from the very beginning to the police witnesses and in Page 17 of 19 FIR No. : 109 / 0 4 PS : Shah d ara their statement u/s 313 Cr.PC as that of false implication at the behest of one police informer. The defence witnesses appears to trustworthy as he is given the specific reason as to why he remember the date of incident as he was to go to attend the ceremony of 'namakaran' of one grand son of Bhairo Prasad and was going to Sultanpuri. He categorically stated there were 2 TSR having six persons, and one of them was having beard, apprehended them. Accused Surender tried to call his family but he was not allow to do so and his phone was snatched. Despite crossexamined by the prosecutor nothing material has come which could discredit him. Rather his testimony appears to be trustworthy and truthful as he categorically stated that he does not know about the work of Surender and whether accused Surender is involved in circulation of fake currency notes and thereby has not given any clean chit to accused as he was not having close acquaintance with accused . But he states that accused used to come to temple and when he inquired from the accused he stated that he has been falsely implicated in this case. The defence witness appears to be independent, reliable and trustworthy. In Page 18 of 19 FIR No. : 109 / 0 4 PS : Shah d ara the face of the inconsistencies of the prosecution version where despite the availability of the public persons including government officials, they were not joined. Their inconsistency regarding time of apprehension although all the witnesses were police official. Further nonexamining of the persons who had allegedly received the secret information and IO, has creates serious doubt about the prosecution version and on the other hand defence version appears to be trustworthy and believable.
19. Accordingly, I am of the opinion that the prosecution has failed miserably to prove their case beyond reasonable doubt. Accordingly accused Surender @ S. K. and Shahood Alam are acquitted of the charges. Their bail bond stands cancelled. Surety Discharged. File be consigned to the record room. Announced in the open court today i.e on 22.1.2010 GURDEEP SINGH ASJ04/NE/KKD/22.1.2010.
Page 19 of 19