RESERVED JUDGMENTS IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (1) CRIMINAL APPEAL No.526 of 2007 1. Sarvar Khan 2. Akram Khan …….….…. Appellants Versus State of Uttarakhand …………… Respondent (2) CRIMINAL APPEAL No.1 of 2008 Ranjeet Singh @ Raja …….….…. Appellant Versus State of Uttarakhand …………… Respondent (3) CRIMINAL JAIL APPEAL No.22 of 2008 Raju @ Kallu …….….…. Appellant Versus State of Uttarakhand …………… Respondent Dated: August 27, 2010 CRLA No.526/07- Mr. MS Pal, Sr. Adv. assisted by Mr. Deepak Bisht, i/b Mr. TPS Takuli, Advocate for the appellants Mr. Prabhakar Joshi, Brief Holder for the State CRLA No.1/08- Mr. SK Aggarwal, Sr. Adv. assisted by Mr SS Bhandari, Adv. for the appellant . Mr. Prabhakar Joshi, brief holder for the State/respondent CRJA No.22/08- Mr. SC Bhatt, amicus curiae for the appel nt la Mr. Prabhakar Joshi, brief holder for the State/respondent HON. DHARAM VEER, J. These three criminal appeals are directed against the common judgment and order and the incident in all these appeals as well as the evidence is the same, as such all are being disposed of by this common judgment and order. 2. These three appeals, preferred by the appellants u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), 2 are directed against the common judgment and order dated 15.12.2007 passed by the Sessions Judge, US Nagar in S.T. No.214 of 2006, State Vs. Ranjeet Singh @ Raja & others, thereby convicting and sentencing all the appellants/accused us/ 489-A of the Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentencing each of them to ten years’ RI with fine of Rs.25,000/- each and in default, the defaulter was directed to undergo further one year’s simple imprisonment. Each of the appellants/ accused was further convicted and sentenced u/s 489-C IPC for five years’ RI. Both the sentences were directed to run concurrently. However, all the appellants/accused were acquitted for the offence punishable u/s 489-B IPC. 3. Heard learned counsel for the parties and perused the entire material available on record. 4. In brief, the prosecution case is that on 10.6.2006, SI Abdul Kalam (PW1) along with SI D.R. Tamta (PW3), H.C. Chandrapal Singh (PW2), Constable Ikhtiyar Hussain, Cosntable Tejveer Singh, Constable Jitendra Pal Singh, Constable Neeraj Pal and also the employees of SOG Staff, namely, SI Vikas Kumar, H.C. Mukesh Tyagi had moved from the police station at 5:05 PM. As soon as they reached at Darau crossroad, they were informed by an informant that one person had gone with counterfeit notes in a house at Avas Vikas and they were further informed that in the said house, counterfeit notes were being printed. On this information, the police party searched House No.132-B in a house at Avas Vikas Colony and the informant went away. It was seen from the slit of the door that one person was working on a Computer and another person was putting the notes on the bed while the third one was collecting the notes with the help of cutter and the fourth person was making the bundles of the notes. On being confident that all the four persons were manufacturing counterfeit currency notes, the police party knocked the door on which two persons ran away from the roof. Rest of the two accused also tried to ran away but they were caught at about 8 PM. Those two accused caught on the spot disclosed their names Ranjeet @ Raja from whose possession 91 notes each Rs.1000/- in total Rs.91,000/- were recovered while the other accused disclosed his name Raju @ Kallu and from his possession 60 notes each Rs.500/-, 13 notes each Rs.100/- and 6 notes each Rs.50/-, in total Rs.31,600/- counterfeit currency was 3 recovered. The serial number of the notes recovered from the possession of appellant/accused Ranjet @ Raja is as under: - 5AQ 302033 29 Notes 5BH376922 32 Notes JCB02443 27 Notes JAO 637632 03 Notes Total 91 Notes amounting to Rs.91,000/- Similarly, the serial number of the notes recovered from the possession of the appellant/accused Raju @ Kallu is as under: - Notes of Rs.500/- 9DA 532927 9 Notes 5BV887023 11 Notes 9AT561338 11 Notes JDN653372 9 Notes 4CF963716 10 Notes JBC902448 10 Notes Total 60 Notes amounting to Rs.30,000/- Notes of Rs.100/- 6WG289854 5 Notes 2DL146668 3 Notes JWK284553 5 Notes Total 13 Notes amounting to Rs.1300/- Notes of Rs.50/- 3DF574106 2 Notes JGD409940 2 Notes 3FQ708984 2 Notes Total 6 Notes amounting to Rs.300/- 5. On being enquired about the accused persons who ran away, their names were disclosed as Sarvar Khan and Akram Khan. On the spot, near the Printer, one side printed 4 notes each Rs.500/- bearing serial numbers 4GF963716, JDN653372, JBF 902448, 9BE614327 and two notes of Rs.100/- bearing common serial numbers 2DL146668, 2 Notes bearing serial number 6WG289854 and 2 notes bearing serial number JWK284553 as well as the counterfeit currency notes found being cut by the Cutter, i.e. 3 notes of Rs.500/- each bearing serial numbers JBF902448, JDN 653372, 4CF963716 and three notes of Rs.100/- each bearing serial numbers 2DL146668, 6WG289854, JWK284553 and three notes of Rs.50/- each bearing serial numbers 3DF574106, JGD409940, 3FQ708984 were recovered. In this way, from the possession of the accused, fully printed notes of Rs.122600/- and semi-printed notes of Rs.7550/- i.e. total 4 Rs.1,301,50/- counterfeit currency was recovered. The Computer, scanner, printer, cutter, scale as well as three original notes of Rs.50/- each inside the scanner were also recovered. The recovered counterfeit currency as well as the Computer and its peripherals was sealed on the spot and after completing the necessary formalities, Fard of recovery Ex.Ka-1 was prepared. On the basis of this Fard Ex.Ka-1, FIR was lodged by PW1 SI Abdul Kalam on 10.6.2006 at 11:40 PM at PS Kichha, Distt. US Nagar and CHIK FIR Ex.Ka-2 was prepared by PW4 C/C Chani Ram, i.e. Ex.Ka-2 and necessary entry in the GD was also made by him, carbon copy whereof is Ex.Ka-3. Initially investigation was entrusted to SI HD Khan and later the investigation was entrusted to PW5 SSI BL Verma. During investigation, the IO prepared the site plan of the place of occurrence i.e. Ex.Ka-4. The recovered counterfeit notes were also sent for the expert opinion and the report given by Assistant Works Manager, Currency Note Press, Nashik Road is Ex.Ka-5. During the course of investigation, the I.O. recorded the statements of witnesses and after completing the investigation, he filed the charge sheet against the appellants/accused, i.e. Ex.Ka.3-A. 6. Learned Judicial Magistrate, Rudrapur committed the case to the court of Sessions on 01.09.2006 after giving necessary copies to the appellants/accused as required under Section 207 Cr.P.C. 7. On 15.11.2006, learned Sessions Judge, US Nagar framed the charges against the appellants/accused under Sections 489-A/489-B/489-C IPC. The charges were read over and explained to the appellants/accused, who pleaded not guilty and claimed to be tried. 8. To prove its case, the prosecution has examined P.W.1 SI Abdul Kalam, witness of recovery, PW2 H.C. Chandra Pal Singh, witness of recovery, PW3 SI D.R. Tamta, also a recovery witness, PW4 Constable Chani Ram, who prepared CHIK FIR and made entry in the GD, PW5 SSI BL Verma, IO of the case.. 9. Thereafter, the statement of the appellants/accused were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against them. However, 5 they did not produce any documentary evidence in his defence. But in oral evidence, they had produced Ishwari Prasad as D.W.1 in defence. 10. After appreciating the evidence on record and after hearing learned counsel for the parties, learned Sessions Judge, US Nagar vide judgment and order dated 15.12.2007 has convicted and sentenced the appellants/accused as mentioned above. Feeling aggrieved by the aforesaid judgment and order, the present appeals have been preferred. 11. To prove its case, the prosecution has examined PW1 SI Abul Kalam who has completely reiterated the version of the recovery memo Ex.Ka-1. 12. PW2 H.C. Chandra Pal Singh and PW3 SI D.R. Tamta have also fully corroborated the evidence of PW1 SI Abul Kalam. Nothing could be elicited in their cross-examinations which could have cast any doubt on their evidence. Their evidence is reliable, believable and trustworthy. 13. PW4 Constable Chani Ram who proved the CHIK FIR Ex.Ka-2 prepared by him on the basis of recovery memo Ex.Ka-1 and he also proved the entry made in the GD by him, i.e. Ex.Ka-3. 14. PW5 SSI BL Verma who stated that he received the investigation after being transferred from SI HD Khan. During the course of investigation, he recorded the statements of the witnesses and after completing the necessary investigation, he filed the charge sheet against the appellants/accused, i.e. Ex.Ka-3A. He also proved the site plan prepared by his predecessor i.e. Ex.Ka-4 as well as the expert report received from Nasik regarding the counterfeit notes, i.e. Ex.Ka-5. 15. Thereafter, the statement of the appellants/accused were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against them. However, they did not produce any documentary evidence in his defence. But in oral evidence, they had produced Ishwari Prasad as D.W.1 in defence. 16. DW1 Ishwari Prasad, who is also the resident of Avas Vikas Colony, has stated that on 11.6.2006 he came to know that at his adjacent house, appellants Ranjir Singh @ Raja and Raju were arrested while manufacturing 6 counterfeit notes on 10.6.2006 at 8 PM. He stated that in the whole night of 10.6.2006 he was in his house but the police had not come there nor the appellants/accused were arrested nor the machine for manufacturing the notes was recovered from those appellants and the case is a forged one. 17. Sri MS Pal, learned Senior Advocate for the appellants/ accused Sarvar Khan and Akram Khan submitted that the prosecution has not proved its case against them beyond reasonable doubt. I find force in this argument due to the following reasons: - A. That neither the appellants/accused Sarvar Khan nor Akram Khan was arrested from the spot. B. That no recovery whatsoever has been shown to be made from them. C. That no identification whatsoever of those appellants was done. D. That the names of these appellants Sarvar Khan and Akram Khan have come into light on the basis of evidence of accused Ranjeet Singh and Raju @ Kallu, which were recorded in the police custody. But, it is now well settled that as per Section 25 of the Indian Evidence Act, 1872, the statement recorded in the police custody is not admissible to be read into evidence as per law and as such their conviction recorded by the trial court is not justified. E. That even no oral or documentary evidence could be produced by the prosecution which could have shown their involvement in the said crime. 18. As such, on the basis of the aforesaid discussion, the prosecution has miserably failed to prove its case against the appellants/ accused Sarvar Khand Akram Khan and they are liable to be acquitted by extending the benefit of doubt. 19. For the rest of the accused/appellant, Sri SK Aggarwal, Sr. Adv. for the appellant-Ranjeet Singh @ Raja and Sri SC Bhatt, learned amicus curiae for the appellant-Raju @ Kallu submitted that the prosecution has also not proved its case against those appellants beyond reasonable doubt. Here, I do 7 not find any force in this argument for the reason that on 10.6.2006, SI Abdul Kalam (PW1) along with SI D.R. Tamta (PW3), H.C. Chandrapal Singh (PW2), and other police personnel had moved from the police station at 5:05 PM and as soon as they reached at Darau crossroad, they were informed by the informant that one person had gone with counterfeit notes in a house at Avas Vikas and they were further informed that in the said house, counterfeit notes are being printed. On this information, the police party searched House No.132-B in a house at Avas Vikas Colony and it was seen from the slit of the door that one person was working on a Computer and another person was putting the notes on the bed while the third one was collecting the notes with the help of cutter and the fourth person was making the bundles of the notes. On being confident that all the four persons were manufacturing counterfeit currency notes, the police party knocked the door. The two accused were caught at about 8 PM by using necessary force, who disclosed their names Ranjeet @ Raja and Raju @ Kallu. From the possession of the appellant/accused Ranjeet @ Raja, 91 notes each Rs.1000/- in total Rs.91,000/- were recovered while from the possession of appellant/accused Raju @ Kallu 60 notes each Rs.500/-, 13 notes each Rs.100/- and 6 notes each Rs.50/-, all amounting to Rs.31,600/- counterfeit currency was recovered. The serial number of the notes recovered from the possession of appellant/accused Ranjet @ Raja as well as from the possession of the appellant/accused Raju @ Kallu has already been quoted in paragraph 4 of the judgment and the same is not being repeated to avoid repetition. On the spot, near the Printer, one side printed 4 notes each Rs.500/- bearing serial numbers 4GF963716, JDN653372, JBF 902448, 9BE614327 and two notes of Rs.100/- bearing serial number 2DL146668, 2 Notes bearing serial number 6WG289854 AND 2 notes bearing serial number JWK284553 as well as the notes being cut by the Cutter, i.e. 3 notes of Rs.500/- each bearing serial numbers JBF902448, JDN 653372, 4CF963716 and three notes of Rs.100/- each bearing serial numbers 2DL146668, 6WG289854, JWK284553 and three notes of Rs.50/- each bearing serial numbers 3DF574106, JGD409940, 3FQ708984 were recovered. In this way, from the possession of the accused/appellants Ranjeet Singh @ Raja and Raju @ Kallu, fully printed notes of Rs.122600/- and semi-printed notes of Rs.7550/- in total amounting to Rs.1,301,50/- counterfeit currency was recovered. The Computer, scanner, printer, 8 cutter, scale as well as three original notes of Rs.50/- each inside the scanner were recovered. The recovered counterfeit currency as well as the Computer and its peripherals was sealed on the spot and after completing the necessary formalities, Fard of recovery Ex.Ka-1 was prepared. Besides, the counterfeit notes recovered were also sent for the expert opinion and the expert opinion is on record which is Ex.Ka-5 in which it is stated that most of the notes are having identical serial numbers; paper thickness was found Slightly thicker than genuine note paper; in printer colours –Ink shades were not matching; Colour Registration-Not Correct; Numbering-Not as per genuine note and Quality of Printing was also found Very Poor. As such, in view of the above-said discussion, it has become amply proved that the appellants/accused Ranjeet Singh @ Raja and Raju @ Kallu were found manufacturing the counterfeit currency notes and at the time of seizure, they were also in possession of the said counterfeit currency notes and Rs.1,30,150/- counterfeit currency was found in their possession. Suffice to say that even the apparatus i.e. the Computer CPU, Printer, Scanner, Mouse, Cutter, Scale and other equipments were also recovered on the spot. Even it has also come in the evidence that the house in which the said notes were recovered, was actually belonged to the appellant/accused Ranjeet Singh @ Raja. Thus, in this way, it is amply proved that the notes recovered were the counterfeit currency notes and they were recovered from the possession of the appellants/accused Ranjeet Singh @ Raja and Raju @ Kallu and as such the offences punishable u/s 489-A and 489-C are completely proved against the appellants Ranjeet Singh @ Raja and Raju @ Kallu and the trial court was perfectly correct and justified in recording their conviction as above discussed. 20. So far as the sentence part is concerned, it was argued on their behalf that the appellants/accused Ranjeet Singh @ Raja and Raju @ Kallu are the sole bread earners in their family and no one is there to look after them. It was further submitted that they are in jail for a long time i.e. since 2006 and it was prayed that a lenient view may be taken. Having regard to the facts and circumstances of the case, I am of the view that seven years’ R.I. with fine of Rs.15,000/- (instead of ten years’ RI and fine of Rs.25000/- as imposed by the trial court) and in default six months’ R.I. u/s 489-A IPC and 9 further five years’ RI (as awarded by the trial court) u/s 489-C IPC would meet the ends of justice. 21. For the reasons as aforesaid, the criminal appeal No.526/2007 preferred by the appellants/accused Sarvar Khan and Akram Khan is allowed. The judgment and order passed by the trial court in convicting and sentencing these appellants/accused is hereby quashed. They are in jail. Let they be released forthwith if not wanted in any other case. Their bail bonds are cancelled and sureties are discharged. 22. The appeals preferred by the appellants/accused Ranjeet Singh (CRLA No.1/2008) and Raju @ Kallu (CRJA No.22/2008) are partly allowed. Their conviction u/s 489-A is maintained but the sentence awarded to them is modified to the extent that they shall undergo seven years’ RI with fine of Rs.15,000/- u/s 489-A IPC and in default of fine, the defaulter shall undergo six months’ further R.I. However, the conviction and sentence recorded by the trial court u/s 489-C IPC for five years’ RI to each of them is hereby affirmed. Both the sentences except that of fine shall run concurrently. These appellants are already in jail. They will serve out the sentence as imposed against each of them. However, the period already served out by them during investigation, trial or appeal shall be adjusted after verifying the records. 23. Lower court record be sent back for compliance forthwith. (Dharam Veer, J.) August 27, 2010 Rajeev Dang