Delhi District Court
State vs . Abul Hussain & Another on 27 August, 2013
State vs. Abul Hussain & Another
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 40 of 2011
ID No. 02401R0455682011
FIR No. : 37/11
Police Station : Jama Masjid
Under Section : 489B/489C/34 IPC
State
Versus
1 ABDUL HUSSAIN
S/o Late Yad Ali Seikh
R/o Margoob House, Flat No. R.25/1,
IInd Floor, Gali No. 2, Near Kadri Masjid,
Zakir Nagar, Delhi
.........Accused No. 1
2 SAKEEL AHMED
S/o Rafiq Ahmed
R/o H. No.C-105, 4th floor,
Near Tayab Masjid, New Colony,
Saheen Bagh, PS Okhla, Delhi
.........Accused No. 2
SC No. 40/11 Page 1 of 17
State vs. Abul Hussain & Another
Date of Institution : 27.09.2011
Date of Committal of case : 19.10.2011
Date of judgment reserved on : 13.08.2013
Date of judgment : 27.08.2013
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State.
Sh. Ghanshyam Yadav, Advocate, counsel for accused no.1
Sh. Pramod Kumar, Advocate, counsel for accused no.2
JUDGMENT:
1. Briefly stated facts of prosecution case are that on July 29, 2011 at about 4.30 PM, a secret informer visited the police station Jama Masjid and informed SI Ali Sher that at about between 5 PM to 5.30 PM one person would come at Urdu Bazar Road, near Tanga Stand along with counterfeit currency notes and he would deliver the said currency notes to another person to circulate the same in the market and if raid be conducted, he could be apprehended. The said information was recorded vide DD No. 20A (Ex.PW2/A). On receipt of said information, a raiding party was constituted under the leadership of SI Ali Sher and it was comprising of HC Kuldeep, const. Yujvendra Singh, Const. Amit Singh who visited police station at that time from the office of DCP Central and const. Ramesh Chand. Thereafter, the raiding party along with the secret informer reached Tanga Stand and conducted Nakabandi there. It was alleged that at about 5.30 PM, accused Abul Hussain came there and started waiting for someone. Secret informer identified him and stated that he was carrying counterfeit currency notes and SC No. 40/11 Page 2 of 17 State vs. Abul Hussain & Another came there to deliver the same to his companion. It was alleged that after 10 minutes, another person i.e. accused Sakeel Ahmed came there. Investigating officer sent HC Kuldeep who was in the plain clothes to overhear their talk. It was alleged that when Abul Hussain had handed over one yellow colour envelope to his co-accused Sakeel Ahmed, raid was conducted and both accused persons were apprehended. On search, one yellow colour envelope was recovered from the possession of accused Sakeel Ahmed and from the said envelope 80 counterfeit currency notes in the denomination of ` 500/- each were recovered. On search, one envelope was recovered from the possession of accused Abul Hussain which was found containing 10 counterfeit currency notes of ` 500/- each. The recovered counterfeit currency notes were kept in two separate plastic container and sealed with the medical tape and, thereafter, with the seal of AS. Thereafter, investigating officer prepared a rukka and got registered an FIR for the offence punishable under Section 489B/489C/34 IPC and thereafter further investigation was assigned to Insp. Arun Chauhan.
(i) It was alleged that during investigation, 12 counterfeit currency notes of ` 500/- each were recovered from the house of Abul Hussain which were kept in a plastic container and sealed with the seal of AKC.
2 After completing investigation, challan was filed against both the accused persons for the offence punishable under Section 489B/489C/34 IPC.
3. After complying with the provisions of Section 207 Cr. P.C., case SC No. 40/11 Page 3 of 17 State vs. Abul Hussain & Another was committed to the Court of Sessions on October 5, 2011. Thereafter, case was assigned to this Court on October 19, 2011. Accordingly, case was registered as Sessions Case No. 40/2011.
4. Vide order dated November 11, 2011, a charge for the offence punishable under Section 489B/34 IPC was framed against both the accused persons and a separate charge for the offence punishable under Section 489C/34 IPC was framed against both the accused persons, to which they pleaded not guilty and claimed trial.
5. In order to bring home the guilt of accused, prosecution has examined as many as following 12 witnesses:-
PW1 ASI Jai Kishan, duty officer, proved the FIR
PW2 SI Ali Sher, complainant and first investigating officer
PW3 HC Kuldeep Sharma, member of investigating team
PW4 Const. Kuldeep, formal witness, deposited the case
property with FSL, Rohini
PW5 Const. Ramesh Chand, member of investigating team
PW6 Sh. Subhash Chander Gupta, material witness
PW7 Margub Ahmed, formal witness
PW8 Smt. Nasreen Bano, formal witness
PW9 Mohd. Imran Khan, material witness
PW10 Const. Yujvendra Singh, member of raiding party
PW11 HC Brahmanand, MHC(M)
PW12 Insp. Arun Chauhan, investigating officer
SC No. 40/11 Page 4 of 17
State vs. Abul Hussain & Another
6. Thereafter, both the accused persons were examined under Section 313 Cr.P.C wherein they denied all the incriminating evidence led by the prosecution and took the plea that they have been falsely implicated in this case. However, they did not lead any evidence in their defence.
7. Learned counsel appearing for both the accused persons contended that the case set up by the investigating agency does not inspire any confidence as it appears that all the events had taken place in a pre- determined manner. It is submitted that the prosecution case is that secret informer reached the police station at about 4.30 PM and the DD was also recorded immediately. If it so, it means that no effort was made to verify the secret information. Similarly, three police officials all of sudden came to the police station Jama Masjid from the office of Addl. DCP at about 4.30 PM. Though they took the plea that they went to police station Jama Masjid for some official purpose but they failed to disclose the purpose. Surprisingly, the investigating officer left from the police station by 4.40 PM. It means that within a short period of 10 minutes, investigating officer had not only verified the secret information but also informed his senior officers and recorded the information in the Rojnamcha register, thereafter, fire arms and ammunitions were got issued. It is submitted that all these are impossible in a short span of 10 minutes. Rather it shows that the said documents were prepared later on as per the convenience of investigating agency. It was further submitted that it is admitted case of prosecution that quality of the recovered counterfeit currency notes was so poor that even a lay man could say with certainty that the same are forged currency notes. It was submitted that if it was so, it is highly improbable that the said counterfeit currency notes could be circulated SC No. 40/11 Page 5 of 17 State vs. Abul Hussain & Another in the market. Even the prosecution witnesses i.e. PW6 & PW9 did not support the prosecution case to the effect that accused persons had given any fake counterfeit currency notes to them. It was further argued that though prosecution has set up a case that accused Abul Hussain came there to deliver the fake currency notes to Sakeel Ahmed but prosecution failed to lead any evidence to establish how they contacted to each other. Admittedly, no mobile phone was recovered from their possession. Similarly, no effort was made to find out the source from where accused persons used to get the fake currency notes. This further creates a doubt over the prosecution version. It was further contended that there are also contradictions between the testimony of witnesses examined by the prosecution as PW2 deposed that investigating officer reached the spot within 60-75 minutes whereas PW3 deposed that investigating officer reached there between 8.30 PM to 8.45PM while investigating officer deposed that he was in the police station till 9.15 PM. It was argued that if he was in the police station by 9.15 PM, it is not clear how he could reach the spot prior to them. At last, it was argued that no sincere effort was made to join public witnesses either at the spot or at the time of alleged recovery from the house. It was argued that all these shows that accused persons have been falsely framed in this case.
8. Per contra, learned Additional Public Prosecutor refuted the said contentions by arguing that accused persons were found in the possession of fake currency notes and recovery was proved by the testimony of members of raiding party, thus there is no reason to disbelieve the deposition of police official witnesses. It was contended that the contradictions pointed out by learned defence counsel are minor in nature. Mere fact that police officials SC No. 40/11 Page 6 of 17 State vs. Abul Hussain & Another failed to join independent witness is not sufficient to discard their testimony. It was submitted that documents were not prepared later on in a pre-determined manner as contended by learned defence counsel, rather it shows promptness on the part of investigating officer.
9. I have heard rival submissions made by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions. It is pertinent to state that neither of the parties has cited any case law in support of his contentions.
10. Since, the raid was conducted by PW2 SI Ali Sher, I take up his deposition first. PW2 in his examination-in-chief categorically deposed that secret informer approached him at the police station at 4.30 PM on July 29, 2011 and informed him that one person would come with counterfeit currency notes at Urdu Bazar, Tanga Stand between 5 PM to 5.30 PM and he would deliver the counterfeit currency notes to someone, if raid be conducted, he could be arrested. The said testimony of PW2 is corroborated by the other members of raiding party. Assuming for the sake of arguments that secret informer had visited the police station at 4.30 PM and he had conveyed the said information to SI Ali Sher (PW2). Before taking any action on the said information, naturally he would have to make some inquiry from the secret informer to ensure that the secret information was true and correct. Similarly, he would also inform SHO and his senior officers before taking any action on the said secret information. If it was so, it means that secret informer must have visited the police station prior to 4.30 PM. But PW2 did not state so, rather he categorically deposed that secret informer reached the police station SC No. 40/11 Page 7 of 17 State vs. Abul Hussain & Another at 4.30 PM. The alleged secret information was recorded vide DD No. 20A (Ex. PW2/A) and the said DD was also recorded at 4.30 PM. It means that investigating agency intends to convey that as soon as secret informer entered the police station, SI Ali Sher had recorded the DD No.20A, which appears quite unnatural and implausible.
11. As per case set up by the prosecution, three police officials namely HC Kuldeep Sharma (PW3), Const. Yujvendra Singh (PW10) and const. Amit reached the police station Jama Masjid from the office of Addl. DCP and they also joined the investigation at the instruction of SHO PS Jama Masjid. Prosecution had examined two of them i.e. PW3 and PW10 and both in their deposition deposed that they reached police station Jama Masjid at about 4.30 PM. Is it a matter of co-incidence that secret informer and the said police officials reached the PS Jama Masjid simultaneously or it is a staged show. Though HC Kuldeep Sharma (PW3) and Const. Yujvendra Singh (PW10) deposed that they reached the police station Jama Masjid at about 4.30 PM and thereafter, they came to know about the said secret information and they joined the raiding party at the instruction of SHO PS Jama Masjid. But PW10 in his cross-examination deposed that when they (PW3 & PW10) were present in the room of SHO, PW2 Ali Sher came there at about 4.15 PM and informed the SHO about the secret information. If it so, it means that the case set up by the prosecution that secret informer reached the police station Jama Masjid at 4.30 PM and immediately DD No. 20A was recorded and two police officials including PW3 & PW10 also visited the police station from the office of DCP at about 4.30 PM becomes doubtful and strengthen the apprehension of the defence that it was not a co-incidence that secret SC No. 40/11 Page 8 of 17 State vs. Abul Hussain & Another informer and the said police officials visited police station Jama Masjid simultaneously, rather it has been projected in a pre-determined manner.
12. Though HC Kuldeep Sharma (PW3) and Const. Yujvendra Singh (PW10) in their deposition categorically deposed that they were sent to police station Jama Masjid for some official work but they failed to disclose what was the official work; whether they had performed that official work or not and if they were sent by Additional DCP to perform some official work, how SHO could depute them for the raid. No DD was filed from the office of Addl. DCP showing that the said police officials were sent to police station Jama Masjid to perform some official work. Though it is admitted case of the prosecution that HC Kuldeep Sharma (PW3) and Const. Yujvendra Singh (PW10) joined the entire investigation but surprisingly, investigating officer did not deem it appropriate to cite them witness qua the documents which were prepared during investigation. It is not clear why the investigating officer had not cited them as witness on the documents which were allegedly prepared in their presence. If HC Kuldeep Sharma (PW3) and Const. Yujvendra Singh (PW10) had participated in the investigation as alleged by the prosecution, investigating officer should have cited them as witnesses but there is no explanation why investigating officer had not cited them as witness on the documents. This only creates a doubt that said documents were not prepared in the presence of said witnesses otherwise there was no reasonable cause for not citing them as witnesses on the documents. Surprisingly, all the documents were witnessed by one member of the raiding party i.e. PW5 despite the fact that raiding party was comprising of as many as 5 police officials. Further, PW5 when appeared in the witness box turned hostile on SC No. 40/11 Page 9 of 17 State vs. Abul Hussain & Another some material points. However, he admitted the same later on when learned Additional Public Prosecutor put words in his mouth by asking leading questions during the cross-examination.
13. It is admitted case of the prosecution that secret information was received at about 4.30 PM and police officials left from the police station at about 4.40 PM. It means that investigating officer had only 10 minutes to verify the secret information; to make entry in the register; to take permission from seniors; to conduct raid; to constitute raiding party; to get issue arms and ammunition from the Malkhana and then to make departure entry. It appears quite unbelievable that all such activities could be done within a short period of 10 minutes. This further strengthen the defence version that all the events have been projected in a pre-determined manner.
14. It is admitted case of prosecution that secret information was received that one person would come to deliver counterfeit currency notes to someone and as per prosecution version, accused Abul Hussain came there with counterfeit currency notes and he delivered one envelope containing 80 counterfeit currency notes to accused Sakeel Ahmed. As per charge-sheet filed by the prosecution, accused Abul Hussain was residing at Zakir Nagar, Delhi whereas Sakeel Ahmed was residing at Okhla Delhi. Thus, both were residing at different places. Admittedly, secret informer did not divulge the investigating officer (PW2) how he obtained the information that accused Abul Hussain would come there to deliver fake currency notes to his co-accused Sakeel Ahmed. It is admitted case of prosecution that no mobile phone was recovered from either of them. There is nothing on record that any landline SC No. 40/11 Page 10 of 17 State vs. Abul Hussain & Another phone was installed at the house of either of accused persons. Thus, there is nothing on record which may show how accused persons could have contacted to each other and decided to meet at the place of occurrence to exchange the envelope containing counterfeit currency notes. Though as per the case set up by prosecution both the accused persons had made their detail disclosure statement and the same are exhibited as Ex. PW5/C and PW5/D but no effort was made by the investigating officer to know how they contacted to each other and how they decided that they would meet at Tanga Stand to exchange the envelope containing counterfeit currency notes. If story set up by prosecution is true, it means that accused persons had contacted to each other before meeting at Tanga Stand. Now question arises how they had contacted to each other. Admittedly, no mobile phone is recovered from either of them. Even no landline phone was found at their respective houses. Prosecution also failed to produce any other evidence on record to show how they had contacted to each other before coming to Tanga Stand. It is highly improbable that they would come at Tanga Stand to exchange the envelope containing counterfeit currency notes without talking to each other. Even no effort was made by the investigating officer to find out how they contacted to each other. There may be two reasons for the said default either investigating officer was not aware about the importance of said connected piece of evidence or the entire episode is a managed show as contended by learned defence counsel.
15. It is admitted case of prosecution that quality of recovered currency notes was quite poor and this is also established from the FSL report wherein it is categorically stated that nature of micro printing is poor on the SC No. 40/11 Page 11 of 17 State vs. Abul Hussain & Another currency notes. OVI effects are poorly seen on the currency notes. Similarly, multi scattered fibres were poorly scattered on the surface of currency notes; quality and texture of paper of currency notes is different; water mark window operation is different; security threads are different in nature on the currency notes. Even spelling of 'Mahatma Gandhi' (महातमा गाँधी) in Hindi was incorrect as same is printed as 'Maharama Gandhi' (महारमा गाँधी). This shows that the recovered currency notes were of highly poor quality and it will not be easy for anyone to circulate the same in a city like Delhi.
16. In order to establish that accused persons had earlier circulated such type of currency notes in the market, prosecution has relied upon the testimony of PW6 Subhash Chander and PW9 Mohd. Imran Khan but both the witnesses did not support the prosecution case in any manner. PW6 in his examination-in-chief deposed that he knew accused Sakeel Ahmed as he had purchased timber from his shop on July 26, 2011 for the amount between ` 16,000/- to ` 17,000/- and he had made the payment in cash. He categorically deposed that he had no knowledge whether the payment was made by counterfeit currency notes. He further deposed that he had used the said amounts in his business transactions. Had the said currency notes be forged of such a poor quality, it would be highly improbable that the same would not have been noticed by the businessman i.e. PW6. In his cross- examination, he categorically deposed that he knew Sakeel Ahmed for the last 10 years as he used to purchase timber from his shop. He also admitted that no counterfeit currency note was recovered from his shop. Mere fact that accused Sakeel Ahmed had purchased timber from the shop of PW6 does not prove that he had made the payment in counterfeit currency notes.
SC No. 40/11 Page 12 of 17State vs. Abul Hussain & Another Admittedly, PW6 nowhere deposed that he had received any complaint from any of his customers that the counterfeit currency notes were given to them. If payment made by accused Sakeel Ahmed was in counterfeit currency notes, PW6 would have received complaint either from his bank or from his customer but it is not so. Rather the testimony of PW6 establishes that accused Sakeel Ahmed is a carpenter and he had business dealings with PW6 as he used to purchase timber from him.
17. Similarly, PW9 Mohd. Imran Khan also did not support the prosecution case by deposing that he runs franchise scheme of State Bank of India named EKO in the name and style of Cyber Hunt and his job was to receive deposits from the different persons and he used to transfer the same to State Bank of India by mobile phone. He further deposed that on July 29, 2011, accused Abul Hussain had deposited ` 500/- in cash and he had filled up the form Ex.P-1. On the next date, when he went to State Bank of India to deposit the collected amount, cashier found one currency note of ` 500/- fake. He deposed that the said note might have been deposited by accused Abul Hussain but he was not sure. Admittedly, different persons used to deposit the amount with PW9 under the scheme of SBI and consequently, he used to deposit the same in the Bank. Thus, the possibility that the said fake currency note was not given by any other person cannot be ruled out. The testimony of PW9 is not helpful to the prosecution to establish that accused Abul Hussain indulged in the activities of counterfeit currency notes.
18. Prosecution has set up a case that accused Abul Hussain had handed over an envelope containing 80 counterfeit currency notes to accused SC No. 40/11 Page 13 of 17 State vs. Abul Hussain & Another Sakeel Ahmed and the said currency notes were recovered from the possession of accused Sakeel Ahmed. When accused Sakeel Ahmed was arrested, only ` 40 were found during his personal search. It means that accused Sakeel Ahmed belonged to poor strata of Society. If it was so, it is highly improbable that he would not insist for some advance money for the job to be performed by him. As per prosecution version, accused Abul Hussain had given ` 40,000/- to accused Sakeel Ahmed for the purpose to circulate the same in the market. Assuming for the sake of arguments that accused Sakeel Ahmed would have succeeded to circulate the said currency notes in the market. He would circulate either to exchange the counterfeit currency notes with the genuine currency notes or to purchase some items in lieu of said fake currency notes. If accused Sakeel Ahmed purchased items in lieu of said fake currency notes, it is not clear how the accused persons would distribute the said items among them and if the said items would be kept by accused Sakeel Ahmed or would be consumed by him why accused Abul Hussain would pay further amount for the job performed by him.
19. It is admitted case of the prosecution that rukka was prepared by PW2 SI Ali Sher. In his entire deposition he nowhere deposed that he took the help of any person while preparing the rukka or rukka was not in his handwriting. Rather he deposed that he prepared the rukka. The rukka is running in all most 4 pages. The ink used in the said rukka appears to be same on all the pages whereas signature of PW2 SI Ali Sher is in different ink. This shows that the rukka was not prepared by the investigating officer SI Ali Sher. On the contrary, the ink used by duty officer in making endorsement on the said rukka at the bottom of said rukka appears to be made in the same SC No. 40/11 Page 14 of 17 State vs. Abul Hussain & Another ink. Further PW12 Insp. Arun Chauhan in his examination-in-chief deposed that he was in police station between 9 to 9.15 PM whereas PW3 in his deposition deposed that PW12 reached the spot between 8.30 to 8.45 PM. If PW12 was in the police station by 9.15 PM, it is highly improbable that he could reach the spot by 8.45 PM.
20. It is admitted case of prosecution that no public person had joined the investigation. PW2 in his examination-in-chief deposed that he asked several persons to join the proceedings after reaching Tanga stand, yet none came forward and went away without disclosing their names and addresses and due to paucity of time no action was taken against them. However, there is nothing on record which may suggest that any effort was made to join any independent witness after apprehending the accused. One can say that police party had not sufficient time to persuade public persons before apprehending the accused but what about after apprehending them? Admittedly, accused persons were apprehended from the busy road and numerous persons were present there. Besides the passers by, shopkeepers were present there but no sincere effort was made to join any independent witness after apprehending the accused. There was no paucity of time for the police officials and they could have easily persuaded shopkeepers to join the proceedings but no such effort was made. Similarly, no sincere effort was made to join any independent witness at the time of alleged recovery from the house of accused Abul Hussain. There is nothing on record to show whether any family member of accused Abul Hussain met in the house or not. It is also not clear whether the house was found locked or not. No effort was made to join neighbours at the time of alleged recovery. As per personal SC No. 40/11 Page 15 of 17 State vs. Abul Hussain & Another search memo of accused Abul Hussain, no key of the house was recovered when he was apprehended. Does prosecution want to say that accused came to Tanga stand to deliver the fake currency notes to his co-accused Sakeel Ahmed after keeping his house opened. If any family member of the accused was present in the house, why they were not asked to join the proceedings. There is nothing on record which may suggest that family members of accused refused to sign the memo. Assuming for the sake of arguments that members refused to sign the memo, even then it was the duty of the investigating officer to mention the same on the memo but he did not do so. From the arrest memo, it is evident that the intimation of the arrest of accused was given to Smt. Gajeman r/o West Bengal. It means that no family member was found at the house of accused Abul Hussain located at Zakir Nagar, Delhi. If it was so, it means that the key of the house must be with the accused as it is highly improbable that accused would leave from his house without locking the door. If it was so, the key of the house must be with the accused when he was allegedly arrested but it was not so. This also creates a doubt over the alleged recovery and it further strengthen the defence apprehension that recovery was planted and due to that reason recovery was not witnessed by any independent witness.
21. Even no intimation was given to the local police that the investigating officer had taken a search of house of accused. Needless to say that under Section 166 Cr.P.C, it was the duty of investigating officer to inform the local police about the search in terms of sub-Section 4 to Section 166 Cr.P.C but no such effort was made. This shows that in fact investigating SC No. 40/11 Page 16 of 17 State vs. Abul Hussain & Another officer was not interested to join any other person in the investigation and due to that reason, no sincere effort was made to join any independent witness either at the time of apprehending the accused or thereafter and later on at the time of alleged recovery from the house of accused. Thus, the explanation furnished by the police that no public person came forward to join the proceedings does not inspire any confidence.
22. Pondering over ongoing discussion, I am of the considered opinion that it would not be safe to rely upon the uncorroborated testimony of police official witnesses, thus, both accused persons are entitled for benefit of doubt, hence, in my opinion, prosecution has failed to bring home the guilt of accused persons beyond the shadow of all reasonable doubts, thus, I hereby acquit both accused namely Abul Hussain and Sakeel Ahmed from all charges.
23. Case property be confiscated to the State and be destroyed after the period of appeal or revision and if any appeal or revision is filed then after the decision of such appeal or revision.
Announced in the open court
on this 27th day of August, 2013 (PAWAN KUMAR JAIN)
ADDITIONAL SESSIONS JUDGE-01
CENTRAL/THC, DELHI.
SC No. 40/11 Page 17 of 17