State vs Lakhbir Singh & Ors.
2009 Latest Caselaw 3019 Del

*                     IN THE HIGH COURT OF DELHI

%                               Date of Decision: 06th August, 2009

+                          CRL.L.P.65/2005

        STATE                                  ...Petitioner
                      Through : Ms. Richa Kapoor, Advocate

                                  versus

        LAKHBIR SINGH & ORS.                ...Respondents

Through : Mr. Naseeb Singh, Adv. for R-1 Mr. Gurbaksh Singh and Ms. Meenakshi Sharma, Advs. for R-2 Mr. H.S.Chaudhary, Adv. for R-3

CORAM:

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE INDERMEET KAUR

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

PRADEEP NANDRAJOG, J.(Oral)

1. Vide impugned judgment and order dated

19.08.2004, the appellants have been acquitted of the charges

framed against them for offences punishable under Section 4 of

the Explosive Substance Act as also the charge of conspiracy

under Section 120B IPC. They have also been acquitted of the

charge punishable under Section 489B IPC.

2. The State seeks leave to appeal against the

impugned decision.

3. We have heard learned counsel for the State and

the respondents. Learned counsel for the State attempted to

urge that a contra view point is possible from the evidence led,

which view point supports the case of the prosecution.

4. We have pointed out to learned counsel for the

State that it is settled law: If two views are possible from the

evidence led; one favourable to the prosecution and the other

favourable to the accused, at a criminal trial, the second view

has to be preferred. We have also pointed out to learned

counsel for the State that the task of the appellate court is not

to re-appreciate the evidence to see whether an alternative

view is plausible. The task of the appellate court is to see

whether the learned Trial Judge has taken note of the relevant

circumstances and, in a case of acquittal, has not ignored

admissible evidence or has returned findings of facts which are

patently erroneous.

5. Thus, we have considered the arguments advanced,

keeping in view the aforesaid legal principles.

6. Case of the prosecution is that the police had

information that two men and a woman who were sympathizers

of a banned terrorist organization 'Khalistan Zindabad Force'

would be in Delhi to create a law and order problem in Pahar

Ganj area in or around 15th August, 2000. On a secret

information received, Lakhbir Singh, respondent No.1 was

apprehended by the crime branch of Delhi Police headed by

ACP Sh.Ravi Shankar from outside Gurudwara Rakab Ganj. The

date was 14.8.2000. The time was 4:00 AM. At the time of his

arrest he was having with him a raxine bag, which on being

checked resulted in a detonator, a battery and some explosives

put inside a ceramic container being found inside the bag. A

paper slip bearing two mobile telephone numbers 9810209087

and 9814157862 was recovered from him. The explosive was

PENT with traces of RDX. Lakhbir Singh disclosed that he was

to hand over the explosives to Mann Kaur respondent No.2 and

that the telephone numbers on the slip were of the person who

had supplied counterfeit currency to him, which counterfeit

currency, he had handed over to Mann Kaur. Respondent No.1

also named Surjeet Singh respondent No.3 as their accomplice.

Luckily the police officers had not to labour to apprehend Mann

Kaur, who came to the Gurudwara. She was apprehended and

32 counterfeit notes in denomination of Rs.100/- recovered

from her, besides a pencil timer. Both, respondent No.1 and

respondent No.2 stated in their respective disclosure

statements that they had hidden explosives at the banks of

river Ravi near Jammu and could get the same recovered. At

the pointing out of respondent No.1, respondent No.3 was

apprehended from China Market Karol Bagh near Aman Hotel

and he confessed of being a co-conspirator with the

respondents 1 and 2. He led the police team to a room in hotel

Aman and from a suitcase inside the room handed over

counterfeit currency notes which were seized vide memo

Ex.PW-4/D. A mobile phone pertaining to the two mobile

numbers which were noted in the slip recovered from R-1 was

in his possession. Thereafter, R-1 and R-2 took the police team

to Jammu and from the banks of river Ravi at Simbhal got

recovered two timers, five electric detonators and 4.2 kg

explosives which were seized as per the memo Ex.PW-8/A.

Respondent No.3 took the police team to his native village

Bhugreni District Hoshiarpur, Punjab, and from the top of an

almirah of his residential house got recovered 795 counterfeit

notes of Rs.100/- denomination.

7. This, in its entirety, is the case of the prosecution.

8. Four police officers namely SI Harbir, PW-7, SI

Ashok Kumar PW-8, SI Ramesh Chand PW-9 and Insp.Rakesh

Dixit PW-22 have claimed to be associated with the

investigation, at different stages. We would be noting their

testimonies relatable to the different stages of the

investigation.

9. Indeed, the learned Trial Judge has referred,

extensively, to their testimonies. As and when needed,

testimonies of a few other witnesses of the prosecution has

been referred to.

10. Learned counsels for the parties submit that the

credibility of the case of the prosecution has to be determined

with reference to the testimonies of PW-7, PW-8, PW-9 and PW-

22. Thus, arguments centered on the testimonies of the said

witnesses.

11. The decision of the learned Trial Judge can be put

into four compartments; each being distinct and independent of

the other. The first segment pertains to the arrest of

respondent No.1 and respondent No.2 in the early hours of the

morning of 14.8.2000 at Gurudwara Rakab Ganj and the

recoveries effected at the spot when they were arrested.

Segment No.2 is the apprehension of respondent No.3 and

recoveries effected from a room in Hotel Aman at his instance.

Segment No.3 pertains to the recoveries effected at Jammu at

the instance of respondent No.1 and respondent No.2.

Segment 4 pertains to the recoveries effected at village

Bhugreni District Hoshiarpur, Punjab.

12. Doubting the recoveries claimed to have been

effected by the police from respondent No.1 and respondent

No.2 when they were apprehended as per the police at

Gurudwara Rakab Ganj, the learned Trial Judge has found that

PW-7, PW-9 and PW-22 claimed in unison, when they deposed

in Court, that ACP Ravi Shankar received secret information

through an informer that respondent No.1 would be meeting

respondent No.2 at Gurudwara Rakab Ganj and would be

handing over explosives to her and upon receipt of said

information at around 4:00 AM on 14.8.2000, a raiding party of

police officers consisting of 13/14 police officers headed by ACP

Ravi Shankar, which included PW-7, PW-9 and PW-22 was

constituted and that the secret informer pointed out

respondent No.1 outside the gate of Gurudwara Rakab Ganj.

The said respondent was carrying a blue coloured bag. The

learned Judge has found it extremely strange that such a senior

level police officer namely ACP Ravi Shankar who headed the

raiding party was not examined as a witness and that though

the contents of the blue coloured bag have been allegedly

seized as entered in the seizure memo Ex.PW-7/A, the bag has

not been shown as seized. The learned Trial Judge has further

noted that no contemporaneous record was prepared regarding

receipt of secret information and the constitution of the raiding

party has been produced and no evidence led to prove the

same. The learned Trial Judge has next noted serious

discrepancies in the testimony of the three witnesses

pertaining to the manner in which the secret informer gave the

information as claimed by the police. Whereas PW-7 and PW-9

deposed that, the secret informer rang up from the gate of

Gurudwara Rakab Ganj and told the police to reach there and

he would meet them at the gate of the gurudwara and upon

the police team reaching the gate of Gurudwara Rakab Ganj,

the secret informer contacted them; PW-22 deposed that the

secret informer personally came and gave information to ACP

Ravi Shankar. Thus, the very commencement of the case of

the prosecution was found to be faltering. The learned Trial

Judge has further found discrepancies with respect to the exact

spot where respondent No.1 was pointed out and was arrested.

The learned Trial Judge has held that pertaining to non-joining

of public witnesses, contradictory answers were given.

Whereas, PW-7 claimed that no public person was present and

hence none could be joined, PW-9 and PW-22 claimed that 2 or

3 persons from the public were contacted to join the

investigation, but they refused.

13. We do agree with the submission made by learned

counsel for the State that the slight variation in the location of

the exact spot where respondent No.1 was standing at the time

he was allegedly pointed out by the secret informer, is not a

contradiction which is so serious so as to discredit the

witnesses.

14. But, as noted in para 12 above, this is only one of

the many features noted by the learned Trial Judge to

disbelieve PW-7, PW-9 and PW-22.

15. Indeed, we find it strange that ACP Ravi Shankar

who received the secret information and at whose instance the

raiding party was constituted has not been examined as a

witness. Learned counsel for the State concedes that no

evidence has been led to prove that ACP Ravi Shankar recorded

having received any secret information. No evidence has been

led of the raiding party being constituted and leaving for

Gurudwara Rakab Ganj. Conceding that the recovery memo

Ex.PW-7/A does not list any bag from the articles recovered

from respondent No.1, learned counsel for the State sought to

justify the same as a mere error.

16. The deficiencies noted by the learned Trial Judge,

briefly noted by us in para 12 above, excluding the variation in

the testimony of the three witnesses pertaining to the exact

spot where respondent No.1 was standing are indeed serious

and hit at the root of the matter. Besides, testimony of PW-18

also demolishes the version of the prosecution that respondent

No.1 became a suspect when the secret informer gave

information on 14.8.2000. PW-18 is an employee at Gurudwara

Sheesh Ganj and deposed that respondent No.1 and his wife

were allotted room No.186 in the gurudwara. Charges were

Rs.50/- per day. Rs.200/- as security was deposited. On

9.8.2000 two police officers came and enquired about

respondent No.1 from him. He confirmed to them that

respondent No.1 was staying in Gurudwara Sheesh Ganj. Room

No.186 was locked. At the asking of the police officers he put a

second lock on room No.186. On 12.8.2000 the police got the

room opened. He removed the lock put by him. The other lock

was broken. The room was searched. Nothing was seized. It is

apparent that there is something more than what meets the

eye because the police has been proved to be trailing

respondent No.1 since much prior to 14.8.2000, the date on

which the secret informer gave the alleged information.

17. Had the three other stages of the case of the

prosecution withstood the test of credibility, one could have

granted leave to appeal qua the evidence pertaining to stage 1

for the reason it sounds logical that the State should be given

at least one more chance to justify its case qua stage 1. But

where so shoddy is the evidence pertaining to the investigation

relatable to stage 2, 3 and 4, it would be of no use to postpone

considering the evidence pertaining to stage 1. It is trite that

where substantial evidence of the prosecution is tainted, oasis

of truth here and there need not be identified because the

dessert of lies and fabrication would render the entire territory

incapable of yielding any productive vegetation.

18. Stage 2 is the apprehension of respondent No.3 and

the recoveries made pursuant to his disclosure statement.

19. Apart from PW-7, PW-9 and PW-22 even PW-8

claims to be associated with the apprehension of respondent

No.3 and the recording of his disclosure statement Ex.PW-8/B

as also the recoveries effected pursuant thereto.

20. Another witness is associated with the said

recoveries being Ashok Kumar PW-4 the receptionist at Aman

Hotel.

21. The taint found in the evidence of the prosecution

by the learned Trial Judge pertains to the exact spot wherefrom

respondent No.3 was arrested and the recoveries attributable

to respondent No.3. For the time being, we ignore the

discrepancies in the testimonies of PW-7, PW-8, PW-9 and PW-

22 qua the exact place where respondent No.3 was

apprehended as claimed by the prosecution. We concentrate

on the evidence pertaining to the recoveries effected at his

instance and as recorded in the recovery memo Ex.PW-4/B.

22. Whereas PW-4 has stated that respondent No.3 was

not even present when the police came to the hotel where he

i.e. PW-4 was employed as a receptionist and that room No.205

where respondent No.3 was staying was searched and one

attaché (suitcase) was seized, the other police officers claim

that respondent No.3 was present. PW-4 deposed that the

police took away some contents of the suitcase and that he

does not know what was removed and taken away. The police

officers claimed to have recovered the incriminating material

from the suitcase. It is important to note that PW-9 admitted

during cross examination that the key of the suitcase was not

with respondent No.3 and that the suitcase was forced open

and counterfeit currency was recovered. He admitted that

some personal effects of Smt.Jagdish Kaur Dami were

recovered from the suitcase but were handed over to her as

she claimed that they belonged to her. We note that as per

PW-4 another boy used to stay in the room No.205 along with

respondent No.3.

23. We concur with the findings arrived at by the

learned Trial Judge that under the circumstances it is doubtful

whether the recoveries attributable to respondent No.3 can be

attributable as a case of conscious possession. Our reason is

three-fold. Firstly, the room in question was occupied by

respondent No.3 and another boy. Secondly, respondent No.3

did not produce the key of the suitcase. Thirdly, articles

belonging to Smt.Jagdish Kaur Dami were recovered from the

suitcase in question and were handed over to her. She was

also occupying a room in the same hotel. No attempt has been

made to bring on record the face of the said boy who was living

in the room with respondent No.3. In fact, the testimony of PW-

4 totally demolishes any recovery at the instance of respondent

No.3.

24. Pertaining to stage 3 i.e. the recoveries effected at

Jammu at the instance of respondents No.1 and 2, three

witnesses namely PW-8, PW-9 and PW-22 have spoken about

the same. All the three witnesses claimed that respondents 1

and 2 led the police officers to the banks of the river Ravi near

Sambhal (Jammu) and dug the soil at a spot and recovered the

incriminating articles as recorded in the memo Ex.PW-8/A. At

the outset, the learned Trial Judge has found a very strange

thing. Indeed, no site plan has been prepared with reference to

the place where the recoveries were made. Surprisingly, the

local police has not even been informed of the presence of the

team of officers from Delhi. The three police officers conceded

during cross examination that they did not report to their

counterparts at Jammu that a team of officers of Delhi Police

were present in their territory to investigate an offence.

Learned counsel for the State further concedes that the

allegedly recovered articles have not even been deposited in

the Malkhana.

25. The learned Trial Judge has noted serious

discrepancies in the testimonies of PW-8, PW-9 and PW-22.

Whereas PW-8 deposed that the police team reached Sambhal

at 6:30 AM, PW-9 claims that the police reached Sambhal at

4:15 PM. Whereas PW-8 claims that a sabhal (iron instrument)

was used by respondents 1 and 2 to dig the soil and get

recovered the incriminating articles, PW-9 claims that the two

shifted the soil with their bare hands. PW-22 claims that said

respondents used wooden stick to shift the soil. Whereas

according to PW-8 it took about 2 to 3 hours to effect

recoveries at Sambhal, according to PW-9 everything was over

in 40-45 minutes. As per PW-8, no public person was

associated with the recoveries, since none was present. As per

PW-9 attempts were made to associate public witnesses but

they refused.

26. We agree with the finding returned by the learned

Trial Judge that the evidence on record casts a serious doubt on

the recoveries claimed to have been made by the police. Thus,

just as the evidence pertaining to stage 2 is highly

contaminated, evidence pertaining to stage 3 is equally highly

contaminated.

27. Pertaining to the recovery of counterfeit currency at

the instance of respondent No.3 from his house at village

Bhugreni District Hoshiarpur, Punjab i.e. the evidence qua

stage 4 of the evidence led, the learned Trial Judge has found

that the evidence of PW-7, PW-8, PW-9, PW-22 and ASI Rambir

Singh PW-6 was most uninspiring. The learned Trial Judge has

discussed the same in sub-paras vii to xiii of para VI. To

summarize, the learned Trial Judge has held that from their

evidence it was apparent that the house was the ancestral

house of respondent No.3 and was inhabited by other members

of the family being the parents of respondent No.3 and his

children. It was not a case where the house was in the

exclusive possession of respondent No.3. We find that there is

no evidence that the room from where the recovery has been

shown to have been made has been proved to be in the

exclusive possession of respondent No.3. Counterfeit currency

has been shown recovered. The exact place of recovery is

alleged to be above an almirah lying in a room in the house.

Assuming it was there, any family member could have kept it

there. Surprisingly enough, no site plan of the house or the

room has been prepared. That apart, the witnesses of the

prosecution could not even describe the house in question. So

much so that some speak of the house being a single storeyed

house and some speak of the house to be a double storeyed

house. Further, some speak of no public witness being present

and hence none being associated with the recovery, some

speak of public witnesses refusing to join in the investigation

stating that they would not do so because father of respondent

No.3 was an ex-pradhan of the village.

28. We find that on every material aspect the evidence

is wanting and lacks to inspire any confidence. We note that

the learned Trial Judge has discussed the evidence spanning 50

pages. On the totality of the circumstances and the evidence

led, we concur with the view taken by the learned Trial Judge as

being a reasonable and a probable view. We hold that within

the narrow confines of which the appellate court can re-

appreciate evidence, no case has been made out justifying the

grant of leave to appeal.

29. The petition seeking leave to appeal is dismissed.

(PRADEEP NANDRAJOG) JUDGE

(INDERMEET KAUR) JUDGE AUGUST 06, 2009 mm