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2008 DIGILAW 163 (GAU)

Dipak Pal v. State of Tripura

2008-02-27

P.K.MUSAHARY

body2008
JUDGMENT P.K. Musahary, J. 1. Heard Sri S. Kar Bhowmik, learned Counsel for the petitioner and Mr. R. C. Debnath, learned P. P. In-charge appearing for the respondent. 2. The petitioner having been convicted under Section 468 IPC and sentenced to suffer S.I. for 3 years with fine of Rs. 5000/-, in default to suffer S.I. for further six months and also having been convicted under Section 473 IPC and sentenced to suffer S.I. for three years with a fine of Rs. 5,000/-, in default to suffer S.I. for further six months by the learned Sub-Divisional Judicial Magistrate, West Tripura, Khowai in G.R. 210 of 1996 preferred an appeal before the learned Addl. Sessions Judge, West Tripura, Khowai, which was registered as Criminal Appeal No. 13(3)/2002 and dismissed on contest by a judgment delivered on 12.9.2002. Being dissatisfied with and aggrieved by the Judgment of the Trial Court as well as Appellate Court below, the petitioner has filed the present criminal revision petition for setting aside the aforesaid judgment of conviction and sentence. 3. Mr. S. Kar Bhowmik, learned Counsel for the petitioner submits that the prosecution failed to prove its case beyond any shadow of reasonable doubt and, as such, the conviction and sentence recorded by the learned Trial Court and affirmed by the learned Appellate Court are liable to be interfered with and set aside by this Court. Further submission of Mr. Kar Bhowmik is that the learned Trial Court being a Magistrate of 1st Class, has no power under the law to pass sentence of S.I. for six years and also fine of Rs. 10,000/-, in default to suffer S.I. for further one year and as such, the said sentence is unauthorized and liable to be quashed. 4. Before consideration of the aforesaid submissions, it is appropriate to advert to the facts of the case. The prosecution has projected a story that on receipt of a secret information about making and using of some fake documents and seals of Motor Vehicle Offices in the house of Dipak Paul, the accused petitioner herein, the complainant along with Sub-Inspector, Chanu Debbarman, Sub-Inspector Prasun Kanti Tripura and other staff, conducted a search in the house of said Dipak Paul on 23.10.1996 and recovered nine counterfeit rubber stamp and some forged documents, namely, driving licence, registration certificates etc. which were seized by the complainant by preparing a seizure list in presence of witnesses. 5. On completion of investigation, a charge sheet was laid against the accused petitioner and the Trial Court framed charges against him under Section 468/473/474 IPC. The charges were read over and explained to the accused petitioner in Bengali to which he pleaded not guilty and claimed to stand trial. 6. The prosecution examined in all, nine witnesses, and no witness was examined by the defence. 7. For adjudication of this criminal case, the trial Court took up the point as to whether some forged documents, namely, driving licence, registration certificate etc. and nine numbers of counterfeit rubber stamp in the name of the Licensing Authority of South Tripura, Udaipur and Kohima, Nagaland were recovered from the house of the accused. Crux of the matter is whether all the aforesaid materials were recovered from the house of the accused petitioner in presence of the witnesses who signed the seizure list. It may be noted that in the seizure list, Exhibit P-4, as many as three persons, namely, (1) Gautam Bhowmik, (2) Sri Subhash Paul, (3) and Sujit Das put their signature as witnesses. The prosecution produced the aforesaid seizure list witnesses before the Trial Court and examined them. 8. P.W. 1 Sri Subhash Paul deposed on 30.10.2000 that at about ll00 O'clock on a day about two years back Darogababu asked him to sign on a piece of paper in front of Teliamura P.S. and accordingly, he signed. He identified his signature marked as Exht-P-1. In his cross-examination, he stated that he could not say as to why his signature was taken by Darogababu. He further stated that he could not say what was written in the paper on which he signed. This witness, therefore, has denied that he was present at the time of seizure and his signature was obtained on the seizure list on the very date and time the seizure list was made/prepared. 9. He further stated that he could not say what was written in the paper on which he signed. This witness, therefore, has denied that he was present at the time of seizure and his signature was obtained on the seizure list on the very date and time the seizure list was made/prepared. 9. P.W. 2 Sri Gautam Bhowmik, another seizure witness, deposed before the Trial Court on 30.10.2000 that at about 12 O'clock, on a day about four years back, when he came out of his house, he found Darogababu of Teliamura P. S. taking accused petitioner Dipak Paul with him and the Darogababu asked him to sign on a piece paper in token of the fact that he was taking the accused petitioner. The said P.W. 2 put his signature and he identified his signature marked as Exhbt. 2. In the cross-examination, he clarified that nothing was written in the paper on which he signed. This witness also denied the fact that he was present in the house of the accused petitioner at the time of seizure and he ever put his signature on the seizure list. The police officer (Darogababu) in fact obtained his signature on the way to police station. 10. P.W. 3 Sri Sujit Das, who was also cited as seizure list witness, deposed on 30.10.2000 before the Trial Court that in the noon on a day, about four years back, when he was in front of Radha Cenema Hall at Teliamura, he found Darogababu of Teliamura P.S. taking the accused petitioner. Seeing him, Darogababu called the P.W. 3 and asked him to sign on a paper. Accordingly, he signed the same. He identified his signature marked as Exhbt. P-3. In his cross-examination, he, however, clarified that the paper on which he signed was blank one. This P.W. 3, although cited as seizure list witness, has denied the fact that he was present in the house of the accused petitioner on the date and time of seizure and ever put his signature on the seizure list. 11. It is pertinent to note that the prosecution did not declare the aforesaid P.W. 1, 2 and 3 as hostile although they refused to support the prosecution case. 11. It is pertinent to note that the prosecution did not declare the aforesaid P.W. 1, 2 and 3 as hostile although they refused to support the prosecution case. The prosecution, as it did not declare them hostile, lost the chance of cross-examining them and thereby failed to prove the vital fact that the incriminating documents/articles were seized from the house of the accused petitioner and the seizure list was prepared in presence of P.W. 1, 2 and 3. 12. The prosecution produced another independent witness, namely, Prabir Das as P.W. 4, who is not a witness to the seizure list. He deposed that he was running a shop of motor parts at Teliamura. In his deposition, he stated that he knew the accused, but he did not know anything about the case and he also did not know why he was cited as a witness in this case. 13. P.W. 9 Sri Anup Majumder, deposed that he was posted as ASI at Teliamura P.S. on 23.10.1996. He testified that on receipt of the secret information, he did visit the house of the accused petitioner along with S.I. Chanu Debbarma (since deceased), S.I. Prasun Kanti Tripura and other staff and recovered the seized articles. S.I. Chanu Debbarma prepared the seizure list and the case was endorsed to him for investigation, who visited the place of occurrence, prepared a hand sketch map and recorded the statement of witnesses and thereafter, charge sheet was submitted against the accused Dipak Paul. 14. The prosecution examined P.W. 7, Prasun Kanti Tripura, S. I. who accompanied Chanu Debbarma, S.I. of Teliamura P. S. and came to the house of the accused Dipak Pal for conducting the search where some rubber stamps and driving licences were found and seized by preparing a seizure list in his presence. In his cross-examination, he stated very significantly that the seized articles were not found in the Court. 15. The prosecution examined one Mridul Das, Joint Secretary, Transport as P.W. 5, Sri Dibakar Das, M.V.I. Agartala as P.W. 6 and Sri Sajal Kanti Debnath, Assistant Transport Commissioner as P.W. 8. These transport officials stated that the seized rubber stamps were not of their office and the driving licences were also not issued from their office and, as such, all the seized articles appeared to be fake. These transport officials stated that the seized rubber stamps were not of their office and the driving licences were also not issued from their office and, as such, all the seized articles appeared to be fake. The evidence of these official witnesses (Transport officials) may have some evidentiary value, but they are all of no help to the prosecution to prove the charge against the accused. It is very clear that the seizure list witnesses who have been examined as prosecution witnesses refused to support the prosecution case and the prosecution failed to produce the seized articles in the Court during trial. 16. It is the settled law that the onus of proving the facts-essential to establish a charge against an accused lies upon the prosecution and the evidence must be such as to exclude every reasonable doubt about the guilt of the accused and the accused cannot be convicted of an offence on the basis of conjecture or surmise. 17. It is also a settled law that if a reasonable doubt arises in the mind of the court after taking into consideration the entire materials before it regarding the complicity of the accused, the benefit of doubt should be given to the accused. This was so held by the Apex Court in the case of Assistant Collector of Central Excise v. Sayed Mohammad reported in 1983 CriLJ 225. In the present case, a genuine doubt arises since the cited witnesses, who have been claimed as witnesses of the seizure of the crime materials, in clear term deposed that they were asked by the Darogababu to sign on a blank paper, not at the place where articles were seized, but at some other places and could not say why their signatures were taken by Darogababu. The doubt intensified when the prosecution failed to produce the seized articles before the Court during trial. In such a case, doctrine of benefit of doubt would come to operate and the accused would be entitled to acquittal. 18. The doubt intensified when the prosecution failed to produce the seized articles before the Court during trial. In such a case, doctrine of benefit of doubt would come to operate and the accused would be entitled to acquittal. 18. Having gone through the evidence on record, I am of the considered view that the learned Trial Court as well as the learned Appellate Court below failed to appreciate the evidence of the prosecution witnesses, particularly, P.W. 1, 2 and 3 and had come to an erroneous conclusion that the rubber stamps counterfeit and the documents are forged and also recovered from the possession of the accused petitioner and the accused made all these forged documents for causing injury and damage to various persons with an intent to fraud them for which he is liable to be punished under Section 468 IPC. There is no sufficient materials and evidence on record to prove that the accused petitioner made all the forged documents for causing injury and damage to various persons with an intent to fraud and, as such, such a conclusion is based on surmises and conjecture. 19. It is redundant to discuss the other point, namely, the power of the Magistrate, 1st Class in awarding punishment exceeding six years including fine of Rs. 10,000/- etc. in view of the fact that the prosecution has been unsuccessful in proving its case beyond reasonable doubt. Consequently, I hold that the conviction as recorded by the learned Trial Court and affirmed by the learned Appellate Court below are not sustainable under the law inasmuch as the prosecution has miserably failed to prove the case beyond reasonable doubt and lost sight of the doubt arose due to non-corroborative evidence of the seizure witnesses namely P.W. 1, 2 and 3. Accordingly, the impugned conviction and the sentence passed by the Sub-Divisional Judicial Magistrate, Khowai, West Tripura affirmed by the Additional Sessions Judge, West Tripura, Khowai are set aside and the accused petitioner is acquitted on benefit of doubt. 20. This petition is allowed. The accused petitioner be set at liberty forthwith if his detention is not required in any other case. 21. Send down the L.C. records. Petition allowed.