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Gauhati High Court · body

2015 DIGILAW 1422 (GAU)

Md. Hafijur Rahman v. State of Assam

2015-11-17

RUMI KUMARI PHUKAN

body2015
JUDGMENT : Heard Mrs. R.B. Bora, learned counsel appearing for the appellant. Also heard Mr. B.J. Dutta, learned Government Advocate, Assam appearing for the State respondent. 2. The present application is directed against the judgment and order so passed by the learned Assistant Sessions Judge, Jorhat in Sessions Case No. 2(JJ)/2010 under Section 489(B) I.P.C. sentencing the accused persons to R.I. for 10 years and to pay fine of Rs. 2,000/-, in default, further S.I. for 2 months. 3. The case of the prosecution is that on 20.09.2008 one Ujjal Patnayak lodged a F.I.R. before Deberapara Police Outpost to the effect that the accused person gave one 100 rupees note while purchasing fish to the fish seller on the Balijan Bagan Market and on being suspected over the note, the matter was reported to the Deberapara Police Outpost. Accordingly, a case was registered, accused was arrested and on being searched, some notes of Rs. 500 and Rs. 100 were recovered from the possession of the accused and it was seized. The case was registered as Marioni P.S. Case No. 142/2008 under Section 489(B) I.P.C. On completion of the investigation, charge-sheet was submitted against two accused persons, namely, Hafijur Rahman and Abdul Saikia under Section 489(B)/420 I.P.C. 4. Both the accused persons entered their appearance before the Court below and after punishing the copy to accused persons, the learned Trial Court committed the case to the Court of Session being case triable by said Court. On receipt of the case on committal, learned Sessions Court framed charge after hearing both sides under Section 489(B) I.P.C. and on being explained accused pleaded not guilty. 5. The prosecution examined 9 witnesses including the Investigating Officer and defence examined no witness. At the conclusion of the trial the accused Hafijur Rahman has been convicted as mentioned above and other accused, Abul Saikia was acquitted for want of evidence. 6. Being aggrieved and dissatisfied with the aforesaid judgment and order, the present appeal has been preferred raising certain infirmities of the judgment and order that the prosecution could not confirm that the said seized money was totally fake and also there is no evidence to prove that notes which was examined by the Expert were actual notes which were seized by the Investigating Officer. It has been alleged that in the statement made by the accused person under Section 313 Cr.P.C. it is stated that police has recovered an amount of Rs. 4,000/- from the accused person which is genuine but the same is later on shown to be fake one. It has also been argued that no incriminating material or any other further material was recovered from the house of the accused though search was made in his house. Accordingly, it has been submitted by the learned counsel for the appellant that offence is not proved beyond reasonable doubt. 7. On the other hand, the Mr. B.J. Dutta, learned Additional Public Prosecutor, Assam has vehemently argued that recovery of fake note in the instance of the accused is instantly proved by the informant himself and which is also supported by the other independent witnesses. There is no any dispute that the evidence of the witnesses on record to the fact that seized notes were fake which also certified by the report of the F.S.L. He has examined the seized notes which were forwarded to him by the Investigating Officer. Thus, it has been urged that it is a fit case for conviction as the offence has been duly proved by the prosecution. 8. I have considered the submissions of the learned counsel for both the parties. Let us appreciate the evidence on record. 9. The informant, Nanda Karmakar, PW – 3 has stated in his evidence that in the day of occurrence while they selling fish, the accused Hafijul Rahman purchased fish from him and paid a Rs. 100 note but he had doubt on the note so he shown the note to the people of ATSA and Yuva Satra Parisad. He has also stated about the fact that police was informed and came for investigation but he did not know the further investigation. 10. Supporting the evidence of PW - 3, PW – 1, Ujjal Patnayak, PW – 2, Raju Karmakar has also stated that on the day of occurrence while the accused purchased fish from the PW – 3 then they were called by the PW – 3 and informed that the note was suspected to be fake one. After perusing the note, they informed the police, and accordingly, police came and arrested the accused and recovered further 23 Nos. of note of Rs. 500 and 5 Nos. After perusing the note, they informed the police, and accordingly, police came and arrested the accused and recovered further 23 Nos. of note of Rs. 500 and 5 Nos. of note of Rs. 100. They were present at the time of such recovery of seizure vide Exhibit – 1 and Exhibit – 2 as the seized notes. PW – 1 filed the ejahar vide Exhibit – 2 and in front of him, the accused Hafijur Rahman admitted that he received the money from Abul Saikia. In cross-examination, both the witnesses stated that they cannot confirm whether it was fake not or not at the time of seizure from their eyes but they have affirmed that they were present at the time of search and seizure from the accused. 11. PW – 4, Sunit Mirdha, PW – 6, Ritun Hazarika (Secretary of Yuva Chatra Parisad) and PW – 7, Suresh Mirdha (Member ATSU) all of them have given deposition that they were informed by the PW – 3 but PW – 5, however, do not have any knowledge about the occurrence. These PWs – 4, 6 and 7 has also supported the search and seizure from the possession of Hafijur Rahman so their evidence are fully corroborated to the effect that on the fateful day, the accused Hafijur Rahman went to the PW – 3 for purchase fish and also purchase fish by using 100 rupees note and immediately thereafter another amount of rupees more than Rs. 4,000/- was recovered from his possession, which was found to be fake. 12. The Investigating Officer, Dibyojoti Dutta, PW – 8 has supported all the version of the informant as well as the witnesses that he was informed by these persons about the incident and then in course of investigation, he went to the place of occurrence and interrogated, the accused Hafijur Rahman and being searched his body, he recovered 149 Nos. of Rs. 500 notes and 23 Nos. of Rs. 100 notes from the possession of the accused person and same was forwarded for F.S.L. examination and in turn, was obtained that the seized notes were fake and no genuine. 13. The Director, F.S.L., Shri Munindra Narayan Bora, PW – 9 has also given evidence that on 24.03.2009 he found the seized notes of the notes of Rs. 500 and Rs. 13. The Director, F.S.L., Shri Munindra Narayan Bora, PW – 9 has also given evidence that on 24.03.2009 he found the seized notes of the notes of Rs. 500 and Rs. 100 in connection with Marioni P.S. Case No. 142/2008 under Section 489(B)/420 I.P.C. and on examination he has given a report that all are fake notes. Thus we found that the FSL report has also supported the case of the prosecution that the notes recovered and seized from the accused person were found to be fake and not genuine. The accused in his statement under Section 313 also admitted that the amount was Rs. 4,000/- was received from him and according to him all are genuine notes. But the report of the FSL has nullified his claim. 14. So from the totality of the evidence, it is found that the accused used fake notes by purchase fish from PW – 3 and subsequently some fake notes were recovered from him. He place no specific plea for possession of such notes. There is no any other ground to disturb the evidence of prosecution. 15. Learned Court below has appreciated the evidence in proper perspective of law and has also arrived just conclusion about finding of guilty under Section 489(B) I.P.C. There is nothing to interfere the findings of the learned Court below regarding the conclusion so arrived. However, as regard the part of sentence, it is to be noted that the learned Court below has given maximum period of sentence as 10 years provided under the provision of Section 489(B) I.P.C., which is on the higher side because there is no any other further evidence that the accused used to deal with such matter in regular manner or by counter-fitting such fake notes in his house also. No other incriminating material was recovered from his house. 16. It is also considered that the accused is behind the bar since more than 5½ years, i.e., from 19.07.2011 and the case is of old pending of 2008. Considering all aspects of the matter and taking into account the length of detention already undergone by the accused, the order of sentence is modified. The accused is sentenced to R.I. for 5 years, which he has already undergone and the amount of being same. 17. Inform the Jail authority for release of the accused, Hafijur Rahman forthwith. Seized money be destroyed in due course. The accused is sentenced to R.I. for 5 years, which he has already undergone and the amount of being same. 17. Inform the Jail authority for release of the accused, Hafijur Rahman forthwith. Seized money be destroyed in due course. 18. State Level Service Authority will provide requisite fees to the Legal Aid Counsel as per norms. Return the LCR.