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2016 DIGILAW 608 (GUJ)

Mohmedhanif v. State of Gujarat

2016-03-16

G.B.SHAH, K.S.JHAVERI

body2016
JUDGMENT : K.S. Jhaveri, J. 1. All the above Appeals are directed against the judgment and order of conviction and sentence dated 11.10.2004 passed by the learned Additional Sessions Judge, Ahmedabad City, in Sessions Case No. 203/2002 whereby the original accused No. 1 - the appellant herein was convicted for the offence punishable under Sections 489(B) of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for four years and fine of Rs. 5,000/-, and in default of payment of fine, rigorous imprisonment for further six months. The original accused No. 1 was also convicted for the offence punishable under Section 489(C) of the Indian Penal Code and was sentenced to undergo rigorous imprisonment of for years and was also convicted for the offence punishable under Section 120(B) of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for four years. All the sentences were ordered to run concurrently. Accused was given set off for the period undergone in jail. 2. Criminal Appeal No. 1798/2004 is preferred by the original accused No. 1 against his conviction and sentence, Criminal Appeal No. 111/2005 is preferred by the State qua enhancement of sentence of the original accused No. 1 - the appellant herein whereas Criminal Appeal No. 110/2005 is preferred by the State against the acquittal of the original accused No. 2 - Jayantibhai Kanjibhai Patel and original accused No. 3 - Parshottambhai Kanjibhai Patel. 3. The case in brief of the prosecution is as under :-- "3.1. It is the case of the prosecution that the principal mastermind behind the entire conspiracy to possess, circulate and traffic in counterfeit currency notes is one - Noormohmed alias Bhaiya Yakub Saiyed. The intention was to destabilise the economy of the country and also thereby, to derive personal gains from such activities. The said Noormohmed had entered into a conspiracy with a number of persons. The then Deputy Commissioner of Police, Shri. Abhay Chudasama, Anti-Terrorist Squad [ATS] had received specific information, inter-alia to the effect that on 29.07.2000 that the principal accused Noormohmed together with four other persons were to come to Ahmedabad for the purpose of trafficking and circulating the counterfeit currency notes. The ATS officers laid in wait near Naroda-Kotarpur Water Works and the accused were caught red handed at such place in the Maruti 800 car bearing Registration No. GJ-1-HT-353. The ATS officers laid in wait near Naroda-Kotarpur Water Works and the accused were caught red handed at such place in the Maruti 800 car bearing Registration No. GJ-1-HT-353. It further emerges that the accused were found to be in possession of large amounts of currency notes of Rs. 500/- denomination which, upon preliminary comparison with genuine currency notes, was established prima-facie to be counterfeit. The principal accused - Noormohmed, as also his co-conspirators, were arrested and a complaint came to be lodged by the Senior Officer Mr. K.C. Chudasama, (attached to the ATS) with Sardarnagar Police station as I-C.R. No. 177/2000. Upon further investigation, a larger conspiracy was unearthed and a large number of accused were arrested in connection with the above C.R. Vide a connected Sessions Case No. 387/2000, a large number of accused were convicted and in connection with above C.R., further investigation led to the arrest of co-conspirators, including the accused herein. The original accused No. 1 was arrested on 17.01.2002 and he is alleged to have been closely associated with the principal accused - Noormohmed and as a part of the conspiracy, many people were sought to be roped in, in order to destabilize the economy. The original accused No. 2 and 3 are alleged to have been roped by the original accused No. 1 for the purpose of trafficking and circulating such counterfeit currency notes. The original accused No. 2 is also alleged to have caused destruction of evidence of the offence by burning the counterfeit currency notes of Rs. 500/- denomination in his possession. After the arrest of the accused was made, discovery panchnama under Section 27 of the Evidence Act was drawn, which according to the prosecution, led to the recovery of counterfeit currency notes from each of the accused herein. It is the case of the prosecution that nine currency notes of Rs. 500/- denomination amounting to Rs. 4,500/- were recovered from the original accused No. 1 and these notes were found to be counterfeit as per the FSL Report. Six currency notes of Rs. 500/- denomination were recovered from both the original accused No. 2 and 3. A supplementary chargesheet was filed against all the original accused and the accused were presented before the Court of the learned Metropolitan Magistrate, Court No. 7 and since it was a sessions triable case, the case was committed to the Court of Sessions. 500/- denomination were recovered from both the original accused No. 2 and 3. A supplementary chargesheet was filed against all the original accused and the accused were presented before the Court of the learned Metropolitan Magistrate, Court No. 7 and since it was a sessions triable case, the case was committed to the Court of Sessions. A charge was framed against the accused, the same was read over and explained to the accused. The accused pleaded not guilty and claimed to be tried. 3.2. At the time of the trial, the prosecution examined the following witnesses :-- Particulars Exh. Panch Witness Indrajit Roshanal Agrawal 22 Panch Witness Rajubhai Mansing Bhalviya 23 Panch Witness Ashokkumar Jayantilal Shah 24 Panch Witness Ajitkumar Jayantilal Sheth 25 Witness Laljibhai Arjanbhai Patel 30 Witness Mayankbhai Mehendrabhai Patel 37 Witness Bhagwandas Devijibhai Patel 41 Witness Mohmedtaqir alias Baba alias Andawala Normiya Shaikh 42 Panch Witness Kalidas Shantilal Patel 44 Magistrate Dipakkumar Thakorlal Garasiya 46 PI and Investigating Officer Rameshbhai Ishwarbhai Patel 57 The prosecution also relied upon various documentary evidence, some of them are :-- Particulars Exh. Statement of Witness Mayank Mahendrabhai Patel 38 Statement of Witness Bhagwandas Devjibhai Patel 48 Statement of Witness Laljibhai Arjanbhai Patel 49 Statement of Witness Karsanbhai Ramjibhai Patel 50 Statement of Witness Kantibhai Dhanjibhai Patel 51 Forwarding letter written by the witness Karsanbhai Ramjibhai Patel to the Metropolitan Magistrate, Court No. 12 52 Forwarding Letter written by the witness Laljibhai Arjanbhai Patel to the Metropolitan Magistrate, Court No. 12 53 Forwarding Letter written by the witness Bhagwandas Devjibhai Patel to the Metropolitan Magistrate, Court No. 12 54 Forwarding letter written by witness Kantilal Dhanji Patel 55 Forwarding letter written by the Police Inspector, ATS to the Metropolitan Magistrate, Court No. 12. 56 Arrest panchnama with regard to the accused No. 1 58 Panchnama drawn under Section 27 of the Evidence Act with regard to the recovery of the currency notes at the instance of the accused No. 1 59 Panchnama drawn under Section 27 of the Evidenceact with regard to the recovery of the currency notes at the instance of the accused no. 2 60 Panchnama drawn under Section 27 of the Evidence Act with regard to the recovery of the currency notes at the Instance of the accused No. 3 61 Opinion Reports from FSL 62 to 64 3.3. 2 60 Panchnama drawn under Section 27 of the Evidence Act with regard to the recovery of the currency notes at the Instance of the accused No. 3 61 Opinion Reports from FSL 62 to 64 3.3. At the end of the trial, further statements of the accused under Section 313 of the Code of Criminal Procedure were recorded in which the accused pleaded not guilty and stated that they have been falsely implicated in the offence. Thus, after recording the further statement of the accused and hearing the arguments of both the sides, the learned Additional Sessions Judge passed the above judgment and order. Being aggrieved by the same, the present appeals have been filed, as aforesaid." 4. Learned Advocate appearing for the accused herein Mr. E.E. Saiyed has taken this Court through the judgment and order of the learned Sessions Judge and has submitted that except the police witnesses, nothing surfaces on record to establish the case against the present accused. It is further submitted that though it transpires that nine currency notes of Rs. 500/- denomination are alleged to have been recovered from the accused No. 1, the same is not supported by the independent panch witness and hence, reliance on such evidence is not just and proper. It is further submitted that evidence is absolutely general in nature and hence, the learned Judge could not have arrived at the conviction as stated above. It is also submitted that the accused No. 1 has already undergone a term of three years in jail and therefore, looking to the period of sentence he has already undergone, this is fit case where this Court should interfere with the judgment and order of the learned Sessions Judge and the sentence already undergone by the accused No. 1 may be treated to be sufficient sentence and Criminal appeal No. 1798/2014 be allowed in part by modifying the impugned judgment and order. 5. Learned Additional Public Prosecutor Ms. C.M. Shah has submitted that because of the counterfeit currency notes that were put into circulation by all the accused, the motive of the accused to damage the economy of the country is clearly established. It is further submitted that looking to the charges proved against the accused by leading evidence, the accused is liable to be imposed with maximum punishment prescribed for the said offences. It is further submitted that looking to the charges proved against the accused by leading evidence, the accused is liable to be imposed with maximum punishment prescribed for the said offences. It is further submitted that the learned Judge ought to have convicted the original accused Nos. 2 and 3 for their entire role played by them in the commission of the offence. Considering the above, it is submitted that this is a fit case which requires interference of this Court and the judgment and order of the learned Judge be upturned and both the Appeals preferred by the State, i.e. enhancement of sentence qua original accused No. 1 and against acquittal of the original accused No. 2 and 3 be allowed. 6. We have heard learned Advocates appearing for the respective parties and perused the records of the case. Before proceeding any further, it is necessary to state that the incident is of the year 2000 and almost 16 years have elapsed from the date of incident. Qua the conviction and sentence of the accused No. 1 herein, the learned Sessions Judge has given in detail the evidence especially at Paragraph 19 of his judgment and order which states that nine counterfeit currency notes of Rs. 500/- denomination were recovered from the residence of accused No. 1 and there are no reasons as such, under which this Court can take a different view than that of the learned Sessions Judge. Taking into account, the evidence of the complainant and other witnesses and also that of the Investigating Officer, we are of the view that the prosecution has been able to prove its case successfully qua the original accused No. 1 - the appellant herein. 7. Qua the original accused Nos. 2 and 3 who have been acquitted, we are of the view that the benefit of doubt granted by the learned Sessions Judge for their acquittal should not be disturbed in view of the following judgments :-- "In the case of M.S. Narayana Menon @ Mani v. State of Kerala & Anr, reported in (2006) 6 S.C.C. 39 , the Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under :-- "54. In para 54 of the decision, the Apex Court has observed as under :-- "54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below." Further, in the case of Chandrappa v. State of Karnataka, reported in (2007) 4 S.C.C. 415 , the Apex Court laid down the following principles : 42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge : [1] An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. [2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law. [3] Various expressions, such as, substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes, etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. [4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. [5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court." Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the Trial Court. Even in the case of State of Goa V. Sanjay Thakran & Anr., reported in (2007) 3 S.C.C. 75, the Apex Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision, the Court has observed as under : "16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with." Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh & Ors., reported in 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs v. State of MP, reported in 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled. In the case of Luna Ram v. Bhupat Singh and Ors, reported in (2009) SCC 749, the Apex Court in para 10 and 11 has held as under :-- "10. The High Court has noted that the prosecution version was not clearly believable. Some of the so-called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the post-mortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence." Even in a recent decision of the Apex Court in the case of Mookkiah and Anr. v. State, rep. by the Inspector of Police, Tamil Nadu, reported in AIR 2013 SCC 321 , the Apex Court in para 4 has held as under :-- "4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. by the Inspector of Police, Tamil Nadu, reported in AIR 2013 SCC 321 , the Apex Court in para 4 has held as under :-- "4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellant very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be re-appreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan v. Sohan Lal and Others, (2004) 5 SCC 573 ]." It is also a settled legal position that in acquittal appeal, the appellate Court is not required to re-write the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. [Vide State of Rajasthan v. Sohan Lal and Others, (2004) 5 SCC 573 ]." It is also a settled legal position that in acquittal appeal, the appellate Court is not required to re-write the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka v. Hemareddy, reported in AIR 1981, SC 1417, wherein it is held as under :-- "This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary ( (1967) 1 SCR 93 : AIR 1967 SC 1124 ) that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice." Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and Ors v. State of Karnataka, reported in JT 2013(7) SC 66." 8. It has been held by the trial Court although several witnesses have been examined by the prosecution, none of the witnesses remotely connect the association of accused Nos. 2 and 3 with any other members of the alleged conspiracy including principal accused Noormohmed or even original accused No. 1 Further, the statements of independent witnesses namely, PW5 - Laljibhai Patel at Exhibit 30 and PW7 - Bhagwandas Patel at Exhibit 41 recorded under Section 164 of Code of Criminal Procedure during the course of investigation do not support the version given by the prosecution as regards involvement of original accused Nos. 2 and 3. Moreover, no evidence could be brought by the prosecution to establish that the accused Nos. 2 and 3 have in any manner tried to circulate the fake currency notes in the open market and involved in trafficking and or destroying the evidence or taking part in the conspiracy. In view of the above, although six currency notes of the denomination of Rs. 500/- were alleged recovered at the instance of accused Nos. 2 and 3 have in any manner tried to circulate the fake currency notes in the open market and involved in trafficking and or destroying the evidence or taking part in the conspiracy. In view of the above, although six currency notes of the denomination of Rs. 500/- were alleged recovered at the instance of accused Nos. 2 and 3 vide panchnamas at Exhibits 60 and 61 and although they were opined by the FSL vide its Report at Exhibit 64 to be of counterfeit currency notes, said solitary evidence of discovery panchnamas cannot be relied upon for basing conviction in view of the fact that no independent evidence is there on record to support the same and also in view of the weak and reliable evidence appearing on record and, therefore, benefit of doubt was rightly given in favour of accused Nos. 2 and 3 and they were rightly acquitted by the trial Court. This Court is, therefore, of the opinion that the trial Court was completely justified in acquitting the accused of the charges levelled against them. The said findings recorded by the trial are absolutely just and proper and no illegality or infirmity has been committed by it in the said findings and therefore, we do not find it necessary to interfere with the same. 9. In the result, all the Appeals being devoid of merits, are dismissed accordingly. The judgment and order of conviction and sentence dated 11.10.2004 of the learned Additional Sessions Judge, Ahmedabad City in Sessions Case No. 203/2002 is hereby confirmed. It is reported that the original accused No. 1 - the appellant herein is on bail and hence, he is directed to surrender to custody within twelve (12) weeks from today to serve the remaining period of sentence, failing which, the concerned investigating agency shall take necessary actions, in accordance with law. The original accused No. 1 be given the benefit of remission and set off as the case may be, for the period of sentence he has already undergone. Bail and bail bond, of the original accused No. 1 stands cancelled. Record and proceedings be sent to the concerned Trial Court forthwith.