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2011 DIGILAW 1060 (CAL)

Mohidul Sk. @ Mahidul Sk. v. State of West Bengal

2011-08-05

Asim Kumar Ray

body2011
The judgment of the Court was as follows:- This appeal is directed against the judgment and order dated 5.4.2008 passed in Sessions Trial No.9 of July 2007 by learned Additional Sessions Judge, 2nd Court, Murshidabad thereby convicting the appellant for the offence punishable under Section 489(B) of the Indian Penal Code and sentencing him to suffer Rigorous Imprisonment for 7 years and to pay a fine of Rs. 2,000/- in default to suffer R. I. for three months and also sentencing him to suffer R.I. for 4 years and to pay a fine of Rs. 2,000/- in default to suffer R.I. for three months more for the offence punishable under Section 489(C) of the Indian Penal Code. 2. The factual background in a nutshell is that on 3.4.2005 around 9.35 hours Sub-Inspector Shri Sandip Kumar Sen Officer-in-Charge of Daulatabad Police Station received a source information about the loitering of appellant Mohidul Sk. at Daulatabad Bazar area with some fake notes intending to be distributed in the local market. He rushed to Daulatabad Bazar and on being identified by the source intercepted the appellant. He was searched in presence of witnesses and on such search ten (10) numbers of fake notes of the denomination of Rs.500/- each amongst which four numbers of fake notes were of the same number were recovered from his possession. Those fake notes were seized under seizure list in presence of witnesses and kept in a sealed envelope. Appellant/accused was arrested and taken to the police station. Sub-Inspector Shri Sen lodged a suo motu complaint and started Daulatabad Police Station Case No. 26 of 2005 dated 3.4.2005. After investigation charge-sheet was submitted against the appellant/accused under Section 489(B)/489(C) of the IPC. The case was committed to the Court of learned Sessions Judge, Murshidabad by learned Sub-Divisional Judicial Magistrate, Berhampore. It was ultimately transferred to the Court of Additional Sessions Judge, 4th Court, Mursnidabad. Charge was framed under Section 489(B)/489(C) of the IPC. The Court of learned Additional Sessions Judge, 4th Court, Murshidabad was lying vacant so the matter was withdrawn from that Court and transferred to the Court of learned Additional Sessions Judge, 2nd Court, Murshidabad for trial. 3. During trial seven witnesses were examined and on conclusion of the trial the appellant/accused was convicted and sentenced. In that background this is the appeal. 4. Mr. 3. During trial seven witnesses were examined and on conclusion of the trial the appellant/accused was convicted and sentenced. In that background this is the appeal. 4. Mr. Arindom Jana, learned Advocate appearing for the appellant has contended that there was delay in recording the case and the same has not been explained. He has contended further that the currency note alleged to have been recovered and seized from the possession of the accused/appellant but in course of cross-examination prosecution witness No.7 has stated that the same were recovered and seized from his possession. He has invited my attention to the evidence of prosecution witness No. 2 who has stated that currency notes were recovered from the pocket of the accused/appellant. His further contention is that currency note was seized from Mohidul Islam. Prosecution witness No. 3 has failed to identify the accused/appellant. Like P.W. 3, P.Ws. 4 and 5 have also stated in course of their oral evidence that currency note were seized from Mohidul Islam. Therefore, the identity of the appellant/accused has not been properly established. It is his contention further that out of seven prosecution witnesses three witnesses have failed to identify the accused/appellant during trial. He has cited a decision reported in AIR 2001 SC page 3074 (Umashanker v. State of Chhattisgarh) and has contended that mens rea is the vital thing which plays a very important role in connection with the case which is in our hand. Even if it is accepted for argument sake that the currency note have been recovered from the possession of accused/appellant he must be acquitted for lacking mens rea. He has contended alternatively that the appellant is in jail since 3.4.2005 and by this time he has passed more than six years in jail. He will get a remission of two months per year according to Jail Code. The period of detention of the accused in jail may be taken into considerations, sentence of imprisonment may be modified and the appeal may be disposed of accordingly. 5. Mr. Swapan Kumar Mallick, learned Advocate appearing for the State has contended that prosecution has relied on the evidence of prosecution witness Nos. 2, 3 and 7. The evidence of prosecution witness No.7 has telling effect on the prosecution case to some extent and even then he was not declared hostile. 5. Mr. Swapan Kumar Mallick, learned Advocate appearing for the State has contended that prosecution has relied on the evidence of prosecution witness Nos. 2, 3 and 7. The evidence of prosecution witness No.7 has telling effect on the prosecution case to some extent and even then he was not declared hostile. However, he has pointed out the answer given by the accused/appellant in course of the examination under Section 313 of Cr.P.C. and has contended that the prosecution has been able to prove its case by substantive evidence which is why the order of sentence and conviction was passed by the learned Additional Sessions Judge. He has also submitted that the accused is in jail for more than six years and that period of detention of the accused may be considered by the Court and the appeal may be disposed of accordingly. 6. The identity of accused Mohidul Sk. is the subject of contention of Mr. Jana. He has contended that all the witnesses have stated about one Mohidul Islam but not Mohidul Sk. and out of seven prosecution witnesses three have failed to identify the appellant/accused so his contention that this factum has clouded the case of the prosecution and the accused/appellant is entitled to have benefit out of it. 7. I have minutely perused the charge-sheet, formal charge and the evidence on record. The record speaks that the appellant is Mohidul Sk. and there is evidence to that effect also from prosecution witness No.1, prosecution witness No. 2 and prosecution witness No.6. On close scrutiny of the evidence on record it does not appear that there was even suggestion in course of cross-examination of prosecution witnesses that accused/appellant is not Mohidul Sk. but Mohidul Islam. The examination under Section 313 of Cr. P.C. does not reflect the said thing too. Therefore, I find reason to express that there is no cloud regarding the identity of the accused/appellant Mohidul Sk. The contention raised by Mr. Jana does not inspire confidence. 8. P.W. No.1, Sub-Inspector Sandip Kumar Sen is the complainant who has stated that on 3.4.2005 he lodged a suo motu complaint against Mohidul Sk. son of Hossain Sk. of village Romipur, P.S. Islam pur and started Daulatabad P.S. Case No. 26 of 2005 dated 3.4.2005 under Section 489(B)/489(C) of IPC. Jana does not inspire confidence. 8. P.W. No.1, Sub-Inspector Sandip Kumar Sen is the complainant who has stated that on 3.4.2005 he lodged a suo motu complaint against Mohidul Sk. son of Hossain Sk. of village Romipur, P.S. Islam pur and started Daulatabad P.S. Case No. 26 of 2005 dated 3.4.2005 under Section 489(B)/489(C) of IPC. He drew up the formal FIR and wrote the complaint on the overleaf of the prescribed form of formal FIR. He has stated further that on 3.4.2005 around 9.35 hours he received a source information to the effect that Mohidul Sk. was loitering at Daulatabad Bazar area and there was some fake notes in his possession. He had the intention to distribute the said fake notes in the local market. On receipt of such information, he rushed to the place of occurrence and being identified by source he intercepted suspect/accused Mohidul Sk. He, in presence of witnesses, namely, Sariful Sk., Laila Hossain, Rajab Ali and others, recovered 10 numbers fake notes of denomination of Rs.500/- each of which four fake notes were of same number. It was recovered from the possession of the accused/appellant. It was seized under seizure list in presence of witnesses. The seizure list and the fake currency notes have been marked as exhibits. In course of his cross-examination he has stated that he lodged a complaint at 5.55 hours and there is no explanation regarding the delay in lodging the FIR. This factum of lodging the FIR around 5.55 p.m. by itself cannot brush aside the substantive part of evidence of the FIR maker which is noted hereinabove. It cannot be taken for considerations saying that it has a telling effect to the merit of the case. 9. P.W. No.2 Laila Hossain, P.W. No.3 Rajab Ali, P.W. No.4 Swapan Kumar Ghosh and P.W. No. 5 Abani Hira have stated in the same tune regarding the apprehension of accused/appellant Mohidul Sk. at Daulatabad Bazar and seizure of 10 fake currency notes from his possession. Their evidence has perfectly lends support to the evidence of Shri Sen. They were subjected to cross-examination at length but their evidence remained as it is and unimpeachable. 10. The evidence of prosecution witness No.7 goes to indicate that to currency notes of the denomination of Rs. at Daulatabad Bazar and seizure of 10 fake currency notes from his possession. Their evidence has perfectly lends support to the evidence of Shri Sen. They were subjected to cross-examination at length but their evidence remained as it is and unimpeachable. 10. The evidence of prosecution witness No.7 goes to indicate that to currency notes of the denomination of Rs. 500/- each were given to him towards the cost of buffalo by accused at the time of purchase of the said buffalo. Police recovered those 10 fake currency notes of denomination of Rs. 500/- each from accused and prepared the seizure list at Daulatabad Bazar in his presence. He has categorically stated that after the currency notes handed over to him by accused, he caught hold of him and afterwards the police seized the said currency notes from him. He has denied the suggestion saying that fake currency notes was all along in his possession and he intended to distribute the same in the market. If we follow the trends of the cross-examination of prosecution witness No.7 then it is clear like crystal that apprehension of the accused/ appellant at Daulatabad Bazar and recovery of currency notes from his presence by police is an admitted fact. It has come in evidence too that prosecution witness No.7 deals in buffaloes and it is his profession. The evidence of prosecution witness No.7 if placed by the side of the other evidence on record and read conjointly then a clear case of recovery of fake currency notes 10 in numbers of the denomination of Rs. 500/- from appellant has been taken a perfect shape. 11. The accused was examined under Section 313 of Cr.P.C. at the conclusion of the trial. He had the option to produce his witnesses. He did not opt for it. The point of mens rea taken by Mr. Jana in course of his argument is not convincing, specially when specific questions were put to the accused persons in course of his examination under Section 313 of Cr.P.C. regarding the recovery of fake currency notes from his possession. The decision which has been referred to by Mr. The point of mens rea taken by Mr. Jana in course of his argument is not convincing, specially when specific questions were put to the accused persons in course of his examination under Section 313 of Cr.P.C. regarding the recovery of fake currency notes from his possession. The decision which has been referred to by Mr. Jana is based on a case where no specific question with regard to the currency notes being fake or counterfeit was put to the accused person at the time of examination under Section 313 Cr.P.C. Therefore, the citation is distinguishable and not helpful in connection with this case. The finding of the learned Court below is based on substantive evidence. There is nothing to interfere in it. 12. On scrutiny of the record it reveals that the case was started on 3.4.2005. The appellant was arrested on 3.4.2005 and all along in custody/jail since then till today. Therefore, I find that he is in jail for more than 6 years continuously. It is also a fact that he is entitled to remission of some periods for his detention in jail. Taking this factum in judicious mind I think that the purpose of justice will be sub-served if the sentence is reduced to the period already undergone by the accused/appellant in connection with this case. The judgment, order of conviction and sentence do hereby affirmed being modified to the above extent. The appellant/accused Mohidul Sk. be released. Fake currency note be destroyed in due course. The appeal stands disposed of. Send the lower Court record at once. Urgent photostat certified copy of this order, if applied for, be supplied to the parties.