Delhi District Court
State vs . Sunil Kumar S/O Harkash Singh, on 3 December, 2009
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IN THE COURT OF SH. SANJEEV AGGARWAL LD. ADDL.
SESSIONS JUDGE: ROHINI COURTS: DELHI
SC No. 265/09
State Vs. Sunil Kumar S/o Harkash Singh,
R/o H.No. A-643, Mangol Puri,
Delhi.
Pradeep Kumar S/o Ram Kumar Gupta,
R/o H.No. A-604, Mangol Puri,
Delhi.
Kamal Kishore S/o Late Sh. Ram Gopal,
R/o H.No. B-38, Avantika, Sector-I,
Rohini, Delhi. (Since expired during the trial)
FIR No.766/04
PS Prashant Vihar
U/s 489A, 489B, 489C read with section 34 IPC
Date of Institution in Sessions Court: 30.11.2004
Date of transfer to this court : 20.01.2009
Date of Judgment : 03.12.2009
JUDGEMENT:
In brief the prosecution story is that, on 04.09.2004, SI Anand Singh received a secret information that one boy, namely, Sunil in lieu of one genuine note of 100/- rupees denomination was giving three 2 faked currency notes of Rs. 100/-, which looked like original. Thereafter, SI Anand Singh struck a deal with one Sunil at C.R.P.F School, Prashant Vihar, Delhi, which was arranged by the secret informer and it was settled that he would come near Rameshwar Sweets and he will give him 15 fake currency notes of Rs. 100/- in lieu of genuine currency notes of Rs. 500/-. Thereafter, he came back to his office at Prashant Vihar, where he was posted as Sub-Inspector in Anti Homicide Section, Crime Branch.
2. He passed on the said information to concerned ACP, who instructed him to conduct a raid and thereby he organized a raiding party, consisting of SI Ravinder Singh, ASI Vijender, HC Jagdish Prasad, Ct. Surender, Ct. Yogender, Ct. Shiv Kumar, under the supervision of Inspector Rampal. At about 2:00 p.m, they left their office and they reached near Rameshwar Sweets, Prashant Vihar. SI Anand Singh kept one genuine currency note of Rs. 500/-, after noting down its serial number. He instructed HC Jagdish to be his shadow witness. Thereafter, all the members of the raiding party took their respective positions near Rameshwar Sweets.
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3. At around 3:15 p.m, one Sunil along with his other companion, namely, Pradeep reached there and SI Anand Singh handed over a noted number of Rs. 500/- to said Sunil. He kept the said currency note in his pocket and took 15 currency notes of Rs. 100/- denomination from his companion Pradeep and handed over the same to SI Anand Singh. At this, the shadow witness raised the signal over his head and all the members of the raiding party reached there and both the accused, namely, Pradeep and Sunil were over powered.
4. SI Anand Singh conducted the search of accused Pradeep and on said search 85 currency notes of Rs. 100/- denomination were recovered from his possession. SI Ravinder Singh conducted the search of other accused Sunil and a genuine currency note of Rs. 500/- denomination was recovered from his right side pocket which was given to him by SI Anand Singh and 100 currency notes of Rs. 100/- denomination each were also recovered from his left side pocket. All the 100 currency notes of Rs. 100/- denomination were of the same serial number and similarly 15 currency notes of Rs. 100/- 4 denomination given to SI Anand Singh were also of the same serial number. The said currency notes were separately sealed in a pullanda.
5. Thereafter, SI Anand Singh wrote a rukka and got the FIR lodged through Ct. Shiv Kumar and after sometime ASI Gopi Ram reached the spot and took over the further investigation of this case. Thereafter, he prepared the site plan and arrested the accused persons.
6. Thereafter, the accused persons made a disclosure statement, that they used to bring those notes from one Kamal Kishore, who was residing at Avantika and he had a computer at his house, and he used to prepare those fake currency notes on the said computer. Thereafter, he lead the police party to the house of said Kamal Kishore. In the ground floor room of the said house, the accused Kamal Kishore was also found, and thereafter the box of his bed was checked and was found to contain finished currency notes amounting to Rs.1,27,300/- and currency notes of Rs. 8500/- were unfinished. They were also separately seized and sealed .
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7. All the accused persons were arrested and the seized currency notes were sent for forensic opinion to Government Security Press, Nasik. After completion of the investigation(s), a charge sheet U/s 489A, B, C, D/120B IPC was filed in the court.
8. Upon committal of the case to the court of sessions, a charge U/s 489A, B, C IPC read with section 34 IPC was framed against the accused persons, Pradeep and Sunil Kumar, on 31.01.2005, similarly a charge U/s 489A, 489B, 489C, 489D read with section 34 IPC was framed against the accused Kamal Kishore on the same date, to which all of them pleaded not guilty and claimed trial. The charge against the accused was ordered to be framed vide detailed order dt. 24.12.2004.
9. During the trial, one of the accused, namely, Kamal Kishore expired and vide order dt. 23.05.2006, the trial qua the said accused was ordered as abated.
10. The prosecution in support of its case has examined six witnesses, PW1 is Satish Kumar, the landlord of the accused Kamal Kishore, who has proved the rent agreement, pertaining to the house 6 No.B38, Avantika, Sector-I, Rohini, with said Kamal Kishore, PW2 is HC Mukhtiyar Singh, duty officer, who has proved the copy of the FIR Ex.PW2/A, PW3 is HC Jagdish Prasad, member of the raiding party, PW4 is Ct. Shiv Kumar, another member of the raiding party and the Ct. who took the rukka to the PS for registration of the FIR, PW5 is Inspector Ravinder Singh, the member of the raiding party and another recovery witness, PW6 is Inspector Anand Singh, first I.O of this case. The ASI Gopi Ram was given up by the prosecution as he had expired during the trial. The report of the Indian Security Press, Nasik is per se admissible U/s 292, Cr. PC, hence no witness from Nasik was summoned to prove the same.
11. Thereafter, the accused persons were examined U/s 313 Cr.PC separately, in which the defence of the accused persons was that they had been falsely implicated in this case, at the instance of the police officials, and they were innocent and they were lifted from their respective houses in the intervening night of 03.09.2004 and the matter was also reported in the Sandhya Times on 04.09.2004, which is published much before 3:00 p.m, therefore, they stated this clearly 7 showed that the police officials had made a false case against them, as time of arrest as per the prosecution story is 7:15 p.m, on 04.09.2004, which fact was also verified by the Hon'ble High Court as per the observations made in the bail order dt. 14.11.2006, placed on the file.
12. I have heard the Ld. Defence counsel Sh. Y.S. Chaudhary and Sh. G.S. Guraya, Ld. Addl. PP for the state and perused the record.
13. Ld. Defence counsel has argued that there are lot of material contradictions in the testimony of prosecution witnesses, who have been examined. He has further argued that in view of the observations made by the Hon'ble High Court in its bail order dt. 14.11.2006, the prosecution case is palpably false, as the time of arrest as per the prosecution story is 7:15 p.m on 04.09.2004, whereas the news item regarding the arrest of the accused persons had been published in the Sandhya Times Newspaper(evening Newspaper), which is published much before 3:00 p.m. He has also argued that no public witness has been joined in the alleged recovery, therefore the prosecution case is false and the accused deserves to 8 be acquitted.
14. On the other hand, Ld. Addl. PP for the state has argued that the contradictions in the testimony of the prosecution witnesses are of minor in nature, which does not go to the root of the prosecution case, therefore, the prosecution has been able to make out a clear cut case against the accused persons, as charged.
15. I have gone through the rival contentions. PW3 HC Jagdish Prasad has reiterated the prosecution story, in his deposition, regarding the manner in which secret information was received by PW6 Inspector Anand Singh on 04.09.2004 and striking of the deal by him with accused Sunil in the presence of the secret informer. He has also deposed regarding the fact that a raiding party was formed and it took respective positions near Rameshwar Sweets and accused Sunil and Pradeep met SI Anand Singh on 3:15 p.m, on 04.09.2004 and SI Anand Singh gave a genuine currency note of Rs. 500/- (whose number had already been noted down) in exchange accused Sunil gave him 15 fake currency notes, after taking them from other accused Pradeep and that thereafter he made a signal over his head 9 and the members of the raiding party over powered both the accused persons and on checking accused Pradeep was found in possession of Rs. 8500/- (85 currency notes of Rs. 100/- of the same series and serial number) and SI Ravinder took the search of accused Sunil and from his right pocket pant, one currency note of Rs. 500/-, which was given to him by SI Anand Singh was also recovered and from his same pant 100 notes of Rs. 100/- denomination were also recovered, which were also seized and SI Anand Singh wrote a rukka and sent Ct. Shiv Kumar to PS for registration of the case. Thereafter, ASI Gopi Ram reached the spot, when SI Anand Singh handed over the sealed pullandas and accused persons to him for further investigation(s).
16. He has further deposed that thereafter both the accused persons made a disclosure statement Ex.PW3/A and Ex.PW3/B and lead the police party to the house of one Kamal Kishore at Avantika, Rohini and from the ground floor, room of said Kamal Kishore, one computer table was found there and on checking the box of his bed 1,27,300 finished currency notes were got recovered by him and Rs. 10 8500 unfinished notes were also recovered, which were also taken into possession and computer and other accessories were also recovered from the said room.
17. PW4 Ct. Shiv Kumar has also deposed on the same lines, as has been deposed by PW3 HC Jagdish Prasad regarding the manner place and time of recovery. Similarly, PW5 Inspector Ravinder Singh has also corroborated the testimony of PW3 & PW4, regarding the recovery, manner of recovery and the arrest of the accused persons.
18. I.O Inspector Anand Singh has also deposed on the same lines, as has been deposed by PW3, PW4 & PW5, on the aforesaid aspect of recovery and arrest of the accused persons and including the manner of their arrest.
19. However, from the perusal of the testimony of the aforesaid recovery witnesses, especially in their cross-examination, lot of contradictions have been found in their testimonies, namely, as PW3 has stated in his cross-examination that he was at his office, when he received the information at around 2:00 p.m and the entire departure of the team was recorded. However, no such DD entry, regarding any 11 departure has been placed on the record by the prosecution. Further he has stated that they reached the spot after 20-25 minutes. People from the public were present, but none agreed to join the proceedings, but their names and addresses were not recorded. He had further stated that Ct. Shiv Kumar took rukka at 6:00 p.m and went to PS on foot and came back at 7:15 p.m on foot and the writing work was done by the I.O while sitting on the cemented chair in front of Rameshwar Sweets shop and the entire writing work was concluded by 9:30 p.m. Thereafter, they went to the house of accused Kamal Kishore and then only the case property was deposited in the malkhana.
20. On the other hand, PW4 in his cross-examination has stated that it took him two minutes to reach the spot. Senior officers had recorded the departure. He also admitted that public persons were present near Rameshwar Sweets shop, but they left without disclosing their names and addresses and he further stated that the writing work was done after the chairs were called. They finally left the spot at around 8:30 or 9:00 p.m and he further stated that thereafter they went to the PS, where the case property was deposited, which is in 12 complete variance with the testimony of PW3 in his cross- examination, where he stated that first of all they went to the house of Kamal Kishore and only then the case property was deposited in the malkhana.
21. Further PW5 Inspector Ravinder Singh had also admitted in his cross-examination, that there were residential houses and commercial shops, outside their office, but no person was asked to join the raiding party, nor any notice was given to them on their refusal. He has further stated that he does not remember the DD number, by virtue of which they left their office and that he cannot say whether any member of the raiding party had called senior officers to the spot, regarding the apprehension of the accused persons with the fake currency notes. He has further admitted that he did not offer his search before conducting the body search of accused Sunil. Similarly, before conducting the search of other accused Pradeep by SI Anand Singh, he also did not offer his search, and the entire writing work was conducting while sitting on the scooter around the spot, which is in contradiction with the testimony of PW3 & PW4, as discussed above. 13 He further stated that they had finally left the spot at about 7:15 p.m, whereas PW3 stated that they had left the spot at 9:30 p.m and PW4 stated that they had left the spot at around 8:30-9:00 p.m.
22. Similarly PW6 in his cross-examination has stated that he made a DD entry, regarding the departure, but he does not remember the DD number. The distance of the spot is 300-400 yards and they all went there on foot. The sweets shop of Rameshwar was opened at that time, but they did not ask anyone from the said shop to join the investigation. All the writing work was done while sitting outside the Rameshwar Sweets shop on scooter, which is in variance with the testimony of PW3 & PW4 in their cross-examination, discussed above. He further admitted that no police officials, offered his search before search of the accused persons and that after apprehending the accused persons no police officer informed higher police officer with regard to apprehended of accused persons, nor he can say whether any information was given to PS Prashant Vihar, regarding the apprehension of the accused persons.
23. From the aforesaid deposition of PW3, PW4, PW5 & PW6, who 14 are the material recovery witnesses of the prosecution, the prosecution has failed to prove on the record, firstly any DD entry, regarding the departure of the police party from the PS Prashant Vihar on the date of the occurrence at around 2:00 p.m. Secondly, no DD entry has been proved regarding the receipt of information from the secret informer and preparation of raiding party or passing on the information to any senior officer. Rather, there is no evidence that any senior officer was ever informed. Thirdly, despite abundant availability of the public persons around the spot, including at the Rameshwar Sweet Shop, no genuine efforts were made by the I.O to join them in the raiding party or investigation, so as to lend credibility/assurance to the alleged recovery. Fourthly, there are lot of contradictions in the inter se, testimonies of the material prosecution witnesses on the recovery aspect as discussed above. Fifthly, it has been admitted by the recovery witnesses that no search was offered by Inspector Ravinder Singh PW5 and Inspector Anand Singh PW6, to the accused persons, before conducting the search of the accused persons. Sixthly, it does not appear to the reason that accused persons would 15 have come to the spot for exchanging mere Rs. 500/- by incurring such a huge risk, as it made no commercial sense for them to exchange such small amount, in public view.
24. Further the most important aspect, which casts complete shadow on the case of the prosecution is the mark A, which though is not admissible in evidence, which is the newspaper clipping of Sandhya Times, evening newspaper of 04.09.2004 (i.e. the date of the incident) in which there is a news item, regarding the apprehension of three accused persons, namely, Kamal Kishore, Sunil and Pradeep with fake currency notes. However, the said newspaper clipping appears to be genuine and judicial note can be taken of the same in view of the observations made by the Hon'ble High Court, in its bail order dt. 14.11.2006 in bail application No. 3611/2006 of accused Sunil Kumar, wherein it was observed by the Hon'ble High Court that " These bail applications are taken up together as they arise out of the same FIR. The learned counsel for the petitioners raised a very simple point to cast doubts on the prosecution case. He submitted that the alleged incident happened at 3:15 p.m. on 04.09.2004 but the same was reported in the Sandhya Times of that 16 date. The Sandhya Times, Delhi Edition is normally released to the public much prior to 3:00 p.m. The learned counsel for the State was asked to verify as to at what time the issue of 04.09.2004, Delhi Edition was printed and released to the public. He has obtained the statement from the Editor of Sandhya Times which indicates that the time of printing and releasing to the public varies from day-to-day upon the work load. However, the printing is done prior to its release to the public which is normally in the afternoon. Accordingly to the statement, received from the Editor, the date of 04.09.2004 being over two years ago, the record is not readily available. However, the publication would normally have completed around 3:00 p.m, and only after that the newspaper would have started pouring out into the market. This, therefore, clearly indicates that the news item was already printed in the newspaper whereas the alleged event took place later i.e. at 3:15 p.m, on the same day.
The learned counsel for the petitioner is right in saying that this would cast serious doubts on the prosecution case"
25. In the present case, as per the arrest memos of accused Pradeep and Sunil Ex.PW3/F and Ex.PW3/F1, they were arrested at 7:30 p.m, as per prosecution story, whereas as per the observations of the Hon'ble High Court above, the evening 17 newspaper publication and printing is done much prior to 3:00 p.m. Therefore, it would have taken some time for the editor to vett the information, thereafter finalising the same, he would have sent the same to printing section and then only the newspaper would have been printed and since after 3:00 p.m, the newspaper is poured into the market for distribution amongst the public, therefore, it is reasonable to infer that the said news item was given to the newspaper Sandhya Times either in the night or on the morning of 04.09.2004, without which the publication is not possible on the same day. Therefore, it seems that the entire case has been cooked up by the police officials in order to falsely implicate the accused persons and the recovery of alleged counterfeit notes from the accused persons has not been proved, nor there is any evidence that the accused persons were counterfeiting or traffiking in the fake currency notes, therefore, the case of the prosecution appears to be palpably false in view of above discussion. Therefore, the defence version that the accused persons were lifted from their respective houses in the intervening night of 03.09.2004, appears to 18 be probable.
26. In these circumstances, the prosecution has miserably failed to prove the charges against the accused persons U/s 489A, 489B, 489C read with section 34 IPC. Consequently, both the accused persons Pradeep and Sunil Kumar are hereby acquitted of the said charge(s). Their bail bonds are cancelled. Sureties stand discharged. Endorsement, if any, made on the original documents of the accused persons and sureties be cancelled. File be consigned to record room.
Announced in the open court (Sanjeev Aggarwal)
On 03.12.2009 Addl. Sessions Judge
Rohini Courts: Delhi.