Full Text
CRL.A. 91/2005
JUDGMENT
Through : Mr.D.K. Sharma, Mr.O.S. Punia and Mr.Ankur K. Sharma, Advs.
Through : Mr.Firoz Khan Ghazi, Adv.
1. This is an appeal against the judgment dated 4.1.2005 and order on sentence dated 7.1.2005 by which the appellants have been convicted and sentenced to undergo Rigorous Imprisonment for three years and to pay fine of Rs.1,000/-, each, and in default of payment of fine, undergo Simple Imprisonment for three months.
2. The relevant facts of the case, as set out by the trial court, are as under: “The graveman of the charges against them are that on 14.3.2003 at about 6.40 pm near Main Gate Maharaja Agrasen Park G.T. Karnal Road, Opposite Fruit Mandi Azad Pur, Delhi they were apprehended by a team of police officials of Special Staff. From the possession of accused Narender Kumar 62 fake currency notes of Rs.500/- each were recovered. Out of these 62 notes, 51 currency notes were of the same number and remaining 11 were of the same 2013:DHC:5793 number. From accused Vijay Tyagi 90 fake currency notes of Rs.100 each were recovered and all these notes were carrying the same serial number.
2. In the course of the investigation these currency notes were sent to India Security Press, Nasik Road for examination and as per report these notes recovered from accused were counterfeit notes.
3. On these facts charge was framed against the two accused as stated above which was denied by them.
4. To prove its case prosecution examined 9 witnesses in all. PW-2, 6 to 9 are the members of the special staff. Except PW-7 SI Sanjeev Bawa the remaining witnesses were present at the time of apprehending the accused and recovery of fake currency notes from them. FIR was registered by PW-2 H.C. Roshan Singh and PW-9 H.C. Ravinder Kumar was given seal after use by he IO after preparation of the pullanda. The other witnesses are PW-1 ASI Diler Singh Duty Officer who has recorded the FIR and proved the copy of FIR as Ex.PW1/A. PW-3 is ASI Paramjeet Singh MHC (M) with whom the case property was deposited in Malkhana. PW-4 is ASI Pyare Lal Chittha Munshi who recorded the entry of the secret information, entry of departure of the police party to arrest the accused and entry by which investigation was transferred to PW-7 SI Sanjeev. PW-5 is Ct.Ashok Kumar who took the pullandas to the Government Press Nasik for examination on 29.4.2003.
5. In their statement recorded u/s 313 Cr.P.C. accused have pleaded innocence and have submitted that they have been implicated in the present case for the reason that accused Vijay Tyagi was running a Travel Agency and refused to accommodate the police officials who were demanding to borrow vehicle from him and for that reason on 13.3.2003, 2/3 police persons came to City Gannaur where both accused vijay Tyagi and accused Narender were having tea near bus terminal and both the accused were forcibly made to sit in the vehicle and were brought to New Delhi where theyhave been implicated in the present case. According to both the accusd nothing was recovered from them and the recovery as shown by the police was planted upon them. Accused also examined DW-1 Ram Kumar in their support.”
3. Mr.Sharma, learned counsel for the appellants, submits that the judgment and order on conviction passed by the trial court is based on conjectures and surmises, and there is no evidence by which the trial court could have reached to a conclusion of guilt against the appellants. Mr.Sharma further submits that the appellant no.1 is a resident of Village Sonali, District Panipat, Haryana, and appellant no.2 is a resident of Village Barhana, District Panipal, Haryana. Both the appellants are carrying on the business of transport at Gannor. The appellants had refused to honour the request of the Police party, who wanted a vehicle from them and, thus, they were falsely implicated in this case as stated by the appellants in their statement recorded under Section 313 Cr.P.C. It is further submitted that the appellants have been falsely implicated in this case and the currency notes were intentionally planted on the appellants. Counsel next submits that the entire evidence of the prosecution is unreliable and is not borne out from the documents, which have been placed on record.
4. It is contended by learned counsel for the appellants that no public witnesses or independent witnesses were associated either at the time of recovery, or at the time of their arrest, or at the time of their personal search and, thus, it would be highly unsafe to convict the appellants only on the evidence of the Police witnesses which is uncorroborated by the testimony of any other independent witness. It is further contended that the trial court failed to appreciate that although a conviction can be based on the evidence of Police witnesses but such evidence is to be examined carefully and cautiously. It is also contended that there are material contradictions in the evidence of the witnesses. It is next contended that there is nothing to suggest why the private vehicles were used. Neither the names of the persons, to whom these vehicles belong, have been disclosed. While PW-2 has deposed that there were two private cars, PW- 7 has deposed that there was only one car. None of the witnesses had given details of the registration of the numbers of the cars. PW-6 could not even state as to who was driving the car and who were the other occupants sitting in the car.
5. Mr.Sharma next submits that according to the prosecution the appellants were nabbed in a park near Fruit Mandi at 6.00 p.m. in the evening. It is further submitted that the area is a highly crowded place and it is unbelievable that not a single public witness could be joined by the Police. Counsel next submits that the personal search of the appellants was conducted prior to sending of Rukka, which fact finds mentioned in the Rukka as well as in the testimony of PW-6, SI Rakesh Malik. Counsel also submits that the FIR was not registered before the personal search and there is no explanation as to why the FIR Number was mentioned in the personal search memo. It is further contended that the trial court has failed to appreciate the fact that the expert, who gave the CFSL report about the currency notes that they are counterfeit notes, was not examined in Court and non-examination of the expert is fatal to the case of the prosecution.
6. Reliance is placed by learned counsel for the appellants on Mohinder Singh v. State, reported at AIR 1953 Supreme Court 415 to show that appellant has been convicted despite the fact that the evidence is wanting on the most material parts of the prosecution case. It is further submitted that the case property was not connected to the accused persons in view of the fact that the description of the case property, which was allegedly recovered, sealed and examined by the CFSL was not mentioned in any of the statement of the witnesses when the property was produced in Court. It is also submitted that as per the Rukka secret information was received from an informer at 2.25 pm at Police Station whereas as per the statement of PW-2 and also as per question no.4 put to appellant, Narender, raiding party departed from Police Station at 2.05 p.m. Counsel for the appellants submits that this discrepancy creates a doubt in the story of the prosecution.
7. Learned counsel for the appellants submits that from the facts on record it is crystal clear that FIR was registered first and thereafter only to fill up the lacunas the rukka and other memos were prepared by sitting in the police station itself and thus in the rukka it is mentioned by SI Rakesh Malik (member of the raiding party) that investigation be handed over to SI Sanjeev, despite the fact that SI Rakesh Malik was neither empowered nor competent to do so since it is the duty of the SHO. It is further submitted that the learned trial court has failed to appreciate the fact that none of the members of the raiding party including the IO or any of the prosecution witness could give the registration number or the name of the owner of the alleged Maruti cars in which the raiding party travelled. It is next submitted that the learned trial court has further failed to appreciate the fact that the entry in register no.19 against which the case property was deposited was bearing Sl.no.160 dated 14.3.2003 and entry prior to that at Sl.No.159 was dated 15.3.2003. It is also contended that the learned trial court has completely ignored the testimony of defence witness DW-1, Sh. Ram Kumar, which was trustworthy and the said witness proved that the appellants were lifted form Gannaur. This itself is sufficient to demolish the entire case of prosecution.
8. Learned counsel for the State submits that the prosecution has been able to establish his case beyond any shadow of doubt. There is no bar in placing reliance on the police witnesses. Counsel further submits that the testimony of the witnesses are consistent and trustworthy and the discrepancies which are pointed out are minor and do not touch the core issue and are not vital to the case of the prosecution. Counsel further submits that the appellants cannot derive any benefit of shoddy investigation.
9. I have heard counsel for the parties and considered their rival submissions and also examined the evidence placed on record. Counsel for the appellants submits that the evidence of the prosecution is neither reliable nor trustworthy and thus cannot form the basis of conviction against the appellants. It is submitted that the appellants have been falsely implicated in this case and the fake currency notes have been planted on the appellants, which is evident from the fact that when the personal search of the appellants was conducted by PW-6, in the presence of PW-2, the fake currency notes were not recovered. Reliance is placed on personal search memo of the appellant, Narender, which shows that one mobile phone, one black leather purse containing Rs.220/-, a pocket diary with papers, four pass-port size photographs and two bus tickets were found; and from the person search of Sh.Vijay Tyagi only Rs.18/- in cash were found.
10. Counsel for the appellants submits that the personal search memo does not include the amount of fake currency which has been recovered from the appellants. Counsel further submitted that the personal search memo contains the FIR number and both these factors alone should be a ground for setting aside the judgment and order of conviction. With respect to this submission, the only explanation rendered by counsel for the State is that at the time of personal search, the fake currency notes had already been recovered from the appellants and thus they do not find part of the personal search memo.
11. Mr.Sharma, counsel for the appellants has also contended that during the entire investigation not a single public or independent witness was associated, although it is the case of the prosecution that the appellants were arrested from near the fruit mandi, which is a highly crowded place. It is also submitted that there is no independent or public witness to the recovery memo, arrest memo, or personal search memo, and thus the evidence of police witnesses alone cannot form the basis of conviction of the appellants. Different versions have been given by the prosecution to show non-availability of public witnesses. It has been pointed out that as per PW-2, the I.O. had asked the passers-by to join investigation, but none accepted. PW-2 had also testified that 3 or 4 persons were requested, whereas PW-7 had testified that no public persons were available at the spot.
12. Counsel for the appellant has also laboured hard to point out various discrepancies in the testimonies of the material witnesses and it has been argued that on these grounds the appeal should be allowed. It is settled law that only material contradictions which affect the core issue can dent the case of the prosecution. It is also settled law that while looking into the contradictions the evidence should be read as a whole. In the case of Shyamal Ghosh v. State of West Bengal reported at (2012) 7 SCC 646 it has been held that:
68. From the above discussion, it precipitates that the discrepancies or the omissions have to be material ones and then alone, they may amount to contradiction of some serious consequence. Every omission cannot take the place of a contradiction in law and therefore, be the foundation for doubting the case of the prosecution. Minor contradictions, inconsistencies or embellishments of trivial nature which do not affect the core of the prosecution case should not be taken to be a ground to reject the prosecution evidence in its entirety. It is only when such omissions amount to a contradiction creating a serious doubt about the truthfulness or creditworthiness of the witness and other witnesses also make material improvements or contradictions before the court in order to render the evidence unacceptable, that the courts may not be in a position to safely rely upon such evidence. Serious contradictions and omissions which materially affect the case of the prosecution have to be understood in clear contra-distinction to mere marginal variations in the statement of the witnesses. The prior may have effect in law upon the evidentiary value of the prosecution case; however, the latter would not adversely affect the case of the prosecution.”
13. The submissions of counsel for the appellants are to be considered on the touchstone of the law laid down by the Apex Court which has been noticed hereinabove. In this case, as per the prosecution, on the basis of secret information the police party had reached the spot where the appellants were to reach. Private vehicles were used from the Police Station to reach the spot in question. As per PW-2 he did not remember the registration number of vehicles, nor was he able to explain from where the vehicles were procured by S.I. Rakesh Malik except that there were two Maruti 800 cars and both were white in colour. As per the testimony of PW-6, he did not remember the number of cars, as the same had been arranged by the Inspector; he was not even aware as to who was driving the second car, nor was he aware as to who was sitting in the car in which he was travelling. PW-7 has another story to tell. According to PW-7 only one Maruti 800 car was used and he was not aware whether it was an official vehicle or not. While according to PW-8 there were two cars, but he was not aware of their registration numbers. As per PW-9, he did not remember the registration number of vehicle in which he had travelled to the spot, nor was he aware as to who was the owner of the car, he also did not remember the colour of the vehicle and he could not recall as to who were the other members of the raiding party present with him in the car. No doubt independently these contradictions may not go to the root of the matter, but these are only one set of contradictions which have been pointed out with respect to the cars, which were used to reach the spot in question. The prosecution was unable to show the vehicle from which the accused had alighted. While according to PW-2 it was a local DTC bus whereas according to PW-6 he did not remember if it was a DTC or a private bus, however, no ticket of local bus was found from the accused. PW-2 and PW-6 have also given a different statement with respect to recording of on spot proceedings. While according to PW-2 the statement was recorded at the spot under a street-light, whereas in the site-plan which has been exhibited, no street-light has been shown. As per the evidence of PW-6, the statement was recorded under the street-light by sitting on the pavement, whereas the site-plan does not show any pavement. As per the evidence of PW-8 besides a light they also used a torch in doing the writing work. The witnesses were also unsure about the location where the accused was arrested, while according to PW-2 the park from where the appellant was arrested was opposite to the Mandi side, whereas PW-7 has deposed that the park is at the back side of the fruit market.
14. It is no longer res integra that an order of conviction can be passed solely on the basis of evidence of Police witnesses with the only rider that the evidence of a police witness is to be examined carefully, cautiously and in case it is found to be consistent and trustworthy, it can form the basis of conviction. It would be useful to reproduce the observation of the supreme court in the case of Girja Prasad v. State of Madhya Pradesh reported at AIR 2007 Supreme Court 3106 it has been held that “there is no rule of law, which lays down that no conviction can be regarded on the testimony of Police Officials even if such evidence is otherwise reliable and trustworthy”.
15. Further in the case of Govindaraju alias Govinda v. State By Sriramapuram Police Station, reported at (2012) 4 SCC 722, it was held as under:
16. Counsel for the appellants has also drawn the attention of the court to the entry in the Malkhana register. According to PW-3 he recorded the entry regarding the deposits at serial no.160 of register no.19 on 14.3.2003, however, in cross-examination he deposed that it was correct that entry no.159 was of 15.3.2003. It is thus contended by counsel for the appellants that this entry has been created, as a subsequent entry cannot be of a prior date. The explanation which has been rendered that the date was written when the goods were deposited, is neither cogent nor acceptable as there was no reason for serial no.159 to be dated 15.3.2003 and serial no.160 to be dated 14.3.2003. The very purpose of making the entry and putting the date would be defeated if this explanation is treated to be correct.
17. Counsel for the appellant has also pointed out that the personal search memo bears the FIR number which also proves manipulation as a personal search is supposed to be carried out before sending the RUKKA and an FIR can only be lodged upon receipt of RUKKA. Counsel also submits that although no time has been mentioned on the personal search memo, but it is extremely unusual that after the appellants were arrested they were not searched, especially in view of the allegations which were made against the appellants i.e. for carrying fake currency, and thus in these circumstances the personal search was a must in all matters, and thus there could not have been an FIR number on the personal search memo.
18. While the court has recognized the fact that it is not easy to associate public witnesses as they are reluctant to join investigation, but as per PW- 2, none had agreed to join the investigation while as per PW-7 no public persons were available. These contradictions between the two witnesses again casts a doubt for the reason that the appellants were arrested near the fruit mandi, a place which is highly crowded and it is unacceptable that no public witness would join if a request had been made. In the case of Pradeep Narayan Madgaonkar v. State of Maharasthra reported at (1995) 4 SCC 255 it has been held by the Apex Court as under: