Delhi High Court
Mohd.Israr vs State Nct Delhi on 2 December, 2013
Author: G. S. Sistani
$~R-30 & 31.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 163/2005
% Judgment dated 02.12.2013
MOHD.ISRAR ..... Appellant
Through : Mr.Pankaj Verma, Amicus Curiae
versus
STATE NCT DELHI ..... Respondent
Through : Mr.Feroz Khan Ghazi, Adv.
+ CRL.A. 170/2005
PANNU KHAN @ HYDER KAHN ..... Appellant
Through : Ms.Priyanka Kapoor, Amicus Curiae
versus
STATE ..... Respondent
Through : Mr.Feroz Khan Ghazi, Adv.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J (ORAL)
1. None is present on behalf of the appellants despite the matters having
been called. Notice issued to the appellants has been received back
unserved with the report that the appellants are not found at the given
address. Accordingly, Mr.Pankaj Verma, Advocate, who is present in
Court, is appointed as an Amicus Curiae on behalf of the appellant, Mohd.
Israr, in CRL.A. 163/2005 and Ms.Priyanka Kapoor, Advocate, who is
present in Court, is appointed as an Amicus Curiae on behalf of appellant,
Pannu Khan @ Hyder Khan in CRL.A. 170/2005.
2. Since both the appeals arise out of the common judgment, they are being
heard together and are being disposed of by a common judgment.
3. Present appeals have been filed by the appellants under Section 374
Cr.P.C. against the judgment dated 11.12.2005 and order on sentence
dated 13.1.2005 whereby the appellants have been sentenced to undergo
Rigorous Imprisonment for a period of three years for the offence
punishable under Section 489C IPC. It was also directed that benefit of
Section 428 Cr.P.C. would be given to the appellants.
4. The relevant facts, as noticed by the learned trial court, are as under:
"The case of the prosecution is that on 10.8.99 ASI Suresh Sharma
along with HC Raju Yadav and other staff was present near Vikrant
Hotel within the jurisdiction of PS Mukherjee Nagar for detection
of Crime. At about 6.45 pm shouts were heard coming from the side
of Ashok Kumar "Lassi Walla". The police officials went towards
the shop of Ashok Kumar and saw that both the accused persons
Mohd. Israr and Banna Khan were trying to escape by starting a
two wheeler scooter. Both the accused persons were overpowered
by ASI Suresh Sharma with the help of other staff.
2. It is further the case of the prosecution that Ashok Kumar
"Lassi Walla" produced a counterfeit currency note of Rs.50
before ASI and made a statement that at about 6.45 pm both the
accused persons had come to his shop. Accused Mohd. Israr asked
for two tokens. Thereafter accused Mohd. Israr gave one 50/-
rupees currency note to him and when he inspected that currency
note carefully he suspected it to be counterfeit. He raised alarm
and both the accused tried to escape on a two wheeler but were
apprehended. The counterfeit currency note was sealed in pullanda
with the seal of „SS‟ and seized.
3. It is further the case of the prosecution that from the right
pocket of pant of accused Mohd. Israr one currency note of
Rs.500/-, two currency notes of Rs.100/- and one currency note of
Rs.50/- all counterfeit were recovered which were also sealed with
the seal of „SS‟ in an envelope and seized. Similarly from accused
Banna Khan one purse was recovered containing one currency note
of Rs.500/- and one currency note of Rs.50/- both counterfeit were
recovered which were also sealed in an envelope with the seal of
„SS‟ and seized.
4. ASI Suresh Sharma after recording the statement of Ashok
Kumar made an endorsement on the same and got registered a case
under Sec. 420/489B/489C/34 IPC. Accordingly, both the accused
persons were arrested and during investigation Site Plan was
prepared. While in custody both the accused persons made
disclosure statements about the supplier of counterfeit currency
notes but the supplier could not be arrested.
5. During investigation the counterfeit currency notes were sent
to the Treasurer, RBI for examination and Treasurer reported that
all the currency notes were forged/ counterfeit. Thereafter,
currency notes recovered from accused persons were sent to Bank
Note Press, Devas (MP) for examination but the fake currency
notes were not accepted by the Press. Thereafter, the fake currency
notes were sent to Currency Note Press, Nasik and Currency Note
Press, Nasik confirmed that the currency notes were counterfeit.
6. After completion of investigation the Final Report was
prepared and filed in the Court of MM who after completing
formalities committed the same to the Court of Sessions for trial.
7. During pendency of the trial accused Bannu Khan absconded
and was declared PO.
10. The prosecution examined nine witnesses in support of the
case. The main witness/ complainant Ashok Kumar was examined
as PW2."
5. Learned Amicus Curiae appearing on behalf of the appellants submit the
judgment and order on sentence passed by the learned trial court is based
on surmises and conjectures. Amicus curiae further contend that that the
appellants have been falsely implicated in this case. It is next submitted
that the learned trial court has failed to appreciate that no fake currency
notes were recovered from the appellants and the same were planted by
the police, which is apparent from the fact that no independent witness
was associated at the time of recovery. In fact the only independent
witness in this case PW-2, Ashok Kumar, has turned hostile and, thus,
there is no evidence to convict the appellants. Learned Amicus Curiae
further submit that PW-2, Ashok Kumar, has clearly stated in his
testimony that the appellants were not the persons, who had given him
fake currency notes and as such some other persons may have been
involved and therefore in the absence of verification the appellants could
not have been convicted. It is also contended that PW-2 has also testified
that money was not exchanged in his presence and he was not present at
the shop and as such he could not identify them. It is further contended
that the statement of PW-2 leaves no room for doubt that the appellants
are innocent as nothing was recovered from the possession of the
appellants and they have been falsely implicated in this case.
6. Learned counsel for the State submits that the prosecution has been able
to prove its case beyond any shadow of doubt. It is submitted that the
evidence of a hostile witness can also be considered provided that portion
of the statement is trustworthy and reliable. Counsel next submits that the
appellants were apprehended at the spot at the shop of PW-2, Ashok
Kumar. Although PW-2 has turned hostile yet he has admitted his
signatures on the statement, PW-2/A and seizure memos, Ex.PW-2/B and
Ex.PW-2/C. Counsel next contends that there is no bar in relying on the
testimony of police witnesses provided it is trustworthy and reliable.
7. I have heard learned counsel for the parties and considered their rival
submissions. No doubt PW-2 turned hostile and did not support the case
of the prosecution, however, he admitted his signatures on the statement,
Exhibit PW-2/A, and seizure memos, Exhibit PW-2/B and Exhibit PW-
2/C. PW-2 has also testified that he was present at his shop when two
customers came and his servant told him that Rs.50/- currency note
received by him appeared to be fake. Doubting its genuineness, his
servant called the police. During cross-examination PW-2 has denied that
the appellants had come to his shop or any fake currency notes were
handed over by them.
8. ASI Suresh Sharma, PW-9, has testified that on 10.8.1999, he was posted
as ASI in Special Team Crime Branch, Adarsh Nagar. He along with ASI
Bakhtawar Singh, HC Raju Yadav and HC Narender were present near
Vikrant Hotel, Kingsway Camp. At about 6.45 pm, they heard the shout
of „PAKRO-PAKRO‟ coming from the side of Ashok Lassiwala. They
saw that both the accused persons were trying to run away on a two
wheeler scooter. PW-9 apprehended both of them with the help of the
staff. At the same time Ashok Lassiwala came there and produced a
currency note of Rs.50/-.
9. PW-9 recorded the statement of Ashok Kumar, Ex.PW2/A. PW-9 has also
testified with regard to search of the appellants and the recoveries which
were effected have been duly proved by him. The fake currency notes
were also sent to the Director, Chief Currency Officer, RBI, vide
application, Exhibit PW-9/C and the fake currency notes were duly
identified by him. This witness has also identified the number of the
scooter but he has admitted that he did not ask any shop owner to join the
investigation.
10. Evidence of PW-9 finds support from the evidence of PW-5, HC Raju
Yadav. Although PW-2, Ashok Kumar, has turned hostile, but his
testimony has been rightly relied upon by the trial court having regard to
his identifying his signatures on the seizure memos.
11. It is settled principle of law that the testimony of hostile witness can be
relied upon (See Dev Raj v. State, Cr.A.116/2006). It is also no longer res
integra that the testimony of police witnesses should be examined
cautiously and carefully and in case they are found to be reliable and
trustworthy, it can be relied upon (See: Govindaraju alias Govinda v.
State By Sriramapuram Police Station, reported at (2012) 4 SCC 722).
Taking into consideration the evidence placed on record, there is no room
for doubt that the prosecution has been able to prove its case beyond any
shadow of doubt against the appellants for the offence punishable under
Section 489C IPC, however, having regard to the amount involved and
also the fact that there was no previous conviction against the appellants,
the order on sentence is modified to the period already undergone by the
appellants.
12. Appeals stand disposed of in above terms. Bail bonds be cancelled and
surety be discharged.
13. The fee of the learned Amicus Curiae shall be paid as per the Rules.
G.S.SISTANI, J
DECEMBER 02, 2013
msr
