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2016 DIGILAW 650 (CAL)

Sufal Mondal v. State of West Bengal

2016-08-18

SIDDHARTHA CHATTOPADHYAY

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JUDGMENT : Siddhartha Chattopadhyay, J. Challenging the legal pregnability of the judgment and order of conviction dated 30.06.2014 passed by the Additional District & Sessions Judge, 2nd Court, Krishnagar, Nadia in Sessions Trial No. II (V)/2014 arising out of Sessions Case No. 3 (5) of 2014, the appellant has preferred this appeal. By the impugned judgment the learned Trial Court has convicted this appellant to suffer rigorous imprisonment for five years and to pay fine of Rs.6,000/- in default of payment of fine to undergo rigorous imprisonment for six months more for the offence under Section 489 (C) of the Indian Penal Code. 2. According to the appellant, learned Trial Court failed to appreciate the evidence in it’s proper perspectives. The appellant further agitated that search and seizure was not in conformity with the law and there are enormous omissions and contradictions in the testimony of the prosecution witnesses and if the said matter be considered properly in that case acquittal would be the only answer. 3. As against this, learned Counsel appearing on behalf of the state contended that it is a very well-reasoned judgment and the learned Trial Court has taken care of all the material aspects properly and for that reason the impugned judgment is quite unimpeachable. 4. In the interest of effective adjudication factual aspects needs to be mentioned. The prosecution case in a capsulated form is such that on the basis of source information, O.C. of Chapra P.S. reached to Srinagar More along with some police personnel and also called two witnesses to be with them for the purpose of search and seizure. At or about 4-15 P.M. the said source identified one person who got down from a Krishnagar bound bus. The police personnels encircled him and asked the appellant that they wanted to search him. On being searched the police personnel recovered 50 pieces of Fake Indian Currency Notes denomination of which was Rs.1000 and those were recovered from the pocket of the appellant. The defacto complainant seized the said notes under a seizure list, prepared a label, obtained the signature of the local witnesses in the seizure list and thereafter took the appellant to the police station and lodged the F.I.R. In this way law was set into motion. 5. The defacto complainant seized the said notes under a seizure list, prepared a label, obtained the signature of the local witnesses in the seizure list and thereafter took the appellant to the police station and lodged the F.I.R. In this way law was set into motion. 5. The defence case as it appears to me from the trend of cross-examination and examination of the appellant under Section 313 of the Code of Criminal Procedure is his innocence and that he has been falsely implicated. 6. However, soon after the registration of F.I.R., the prosecuting agency came into operation. In course of investigation, Investigating Officer has recorded the statements of the available witnesses, sent the seized notes to the learned C.J.M. Krishnagar for sending the same to R.B.I. authority for expert report. After getting the report from the said authority, he submitted chare-sheet under Section 489 (B)/489 (C) of Indian Penal Code. 7. Pursuant to the charge-sheet submitted by the Investigating Officer, and after hearing both sides, the Trial Court has framed the charges under Section 489 (B) and 489 (C) of Indian Penal Code. It appears from the record that the charges were read over to the appellant to which he pleaded not guilty and claimed to be tried. 8. To come to a finding we should now listen to the witnesses to see if the prosecution has been able to prove the charges beyond all reasonable doubts and disputes. The P.W. 1 is S.I. Raktim Chatterjee, who was posted as O.C. Chapra P.S. According to him on 10.01.2014 he got an information from a source that there would be transportation of Fake Indian Currency Notes from Srinagar More. To work out the said information he along with other police personnels went to the spot and also he called two witnesses to be present there. After a few while one person got down from Krishnagar bound bus and the source identified the said person. The police personnels encircled them and offered that person that they would make personal search. They recovered 50 pieces of Fake Indian Currency Notes, denomination of which was Rs.1000 each. After seizing the notes, he prepared a seizure list on the spot. In course of evidence he has proved the said seizure list and also the label. The police personnels encircled them and offered that person that they would make personal search. They recovered 50 pieces of Fake Indian Currency Notes, denomination of which was Rs.1000 each. After seizing the notes, he prepared a seizure list on the spot. In course of evidence he has proved the said seizure list and also the label. In course of cross-examination he has categorically stated that before leaving from the P.S. he has lodged G.D. He came back to the P.S. at or about 6:00 P.M. He categorically stated that he kept fake currency notes in a sealed packet and signature of the witnesses were taken in the sealed packet. Srinagar More, is a very crowded place and many shops and hotels were there. The P.W. 2 is one Biman Datta, who has proved his signature of the seizure list but in course of his examination in chief he turned hostile to the prosecution and he failed to identify the appellant and could not recollect whether any search and seizure were made. However he admitted that he had put his signature in a paper at the Chapra Police Station. Attacking his such statement, learned Defence Counsel wanted to say that the prosecution case is false because the independent witness turned hostile to the prosecution. It seems to me that the alleged incident took place on 10.01.2014 and this witness came to the Court nearly after six months and naturally it may not be possible on his part to identify the appellant on dock. Rather it goes to show that he does not have any acquaintance with the accused appellant. It is axiomatic truth that evidence of hostile witness shall not be thrown out only on the ground that he was declared hostile. When a person turned hostile, court should look for corroboration. In the instant case, there is no corroboration from any of the witnesses supporting the P.W. 2. Therefore, his evidence cannot be taken into consideration. From the deposition sheet it appears that he has put his signature in English. This indicates that he is literate and sensible. So his last line of evidence that he had put his signature on some papers at Chapra Police Station is absolutely wrong. Because at the time of examination in chief he stated he could not recollect whether any incident took place on 10.01.2014 or not. This indicates that he is literate and sensible. So his last line of evidence that he had put his signature on some papers at Chapra Police Station is absolutely wrong. Because at the time of examination in chief he stated he could not recollect whether any incident took place on 10.01.2014 or not. If there was no such incident, why he had put his signature on some papers be it in Chapra Police Station or on the spot. That part remains unexplained. Therefore, his evidence is not at all creditworthy. 9. P.W. 3, is also one of the police personnels. He has narrated in detail as to how the search and seizure took place in presence of them along with two persons with whom O.C. had come to the spot. In course of cross-examination the defence could not shake his evidence in any way. Evidence of P.W. 4, is also in the same tone and tune. He is also a member of the raiding party and witness to the seizure. He has put his signature in the seizure list and proved his own signature therein. In course of cross-examination only suggestions were given to him and he denied the said suggestions. P.W.5, is an independent witness and according to him the police officer recovered currency notes from the possession of a person and as per advice of police he has put his signature on a seizure list and label. He has identified the said person on dock. In course of cross-examination he has stated that he was not examined by the police and other part of his evidence indicates that recovery was there from the pocket of the appellant. Challenging his such evidence learned Counsel appearing on behalf of the appellant contended that this person was not examined by police and so his evidence cannot be taken into consideration. I am in respectful disagreement with him on the ground that the Investigating Officer in his evidence has stated he examined the available witnesses under Section 161 of Code of Criminal Procedure. But no suggestion was given to the Investigating Officer that he did not examine this P.W. 5. Therefore, only a solitary statement “I was not examined by the police” shall not help the defence in any way. On the contrary this witness appears to be most ordinary person, who does not have enough knowledge regarding the police investigation. But no suggestion was given to the Investigating Officer that he did not examine this P.W. 5. Therefore, only a solitary statement “I was not examined by the police” shall not help the defence in any way. On the contrary this witness appears to be most ordinary person, who does not have enough knowledge regarding the police investigation. P.W.6 is, a village police. According to him he was present on the spot and in his presence recovery was made. In course of cross-examination he admitted that the area where the search and seizure took place is a congested one. It was asked to him whether he stated to the Investigating Officer that they reached the spot at 3:00 or 3:30 P.M. This is not relevant at all because no such question was put to the Investigating Officer in this regard. But the fact is such that this witness was present there. Evidence of P.W. 7 is almost the replicated version of P.W.6. P.W. 8 is the Investigating Officer who has narrated as to how he had conducted the investigation. It was asked to him, in course of cross-examination, whether he had resized the said notes and whether those notes were sent to Malkhana under sealed condition. In reply, he had admitted that he did not resize the said notes but those were kept in a sealed condition. Regarding the queries, made by the defence, as to where the articles were kept before sending it to the expert, he categorically stated that those were kept in Thana Malkhana. The learned Counsel appearing on behalf of the appellant contended that general diary entry is essential for keeping anything in Thana Malkhana but that has not been done. But in my considered view this argument does not hold any water on the ground that Thana Malkhana maintains a separate register and he categorically stated that there is endorsement in Thana Malkhana register that he had kept the fake currency notes there. There is no challenge by the defence, even in the form of suggestion, that those were not kept in Thana Malkhana. Therefore, sufficient explanation has been given by the Investigating Officer on this point. In course of cross-examination he has also stated that he did not examine any local person attached to the place of occurrence. There is no challenge by the defence, even in the form of suggestion, that those were not kept in Thana Malkhana. Therefore, sufficient explanation has been given by the Investigating Officer on this point. In course of cross-examination he has also stated that he did not examine any local person attached to the place of occurrence. It is not essential in this case, because at the time of search and seizure two local witnesses were present there, and in their presence search and seizure were made. It is immaterial to ask for any other local person to be a witness. Not only that this not an ordinary offence like a village quarrel, murder in a locality or dacoity etc., wherein the local residents are interested to see what is happening there. It is neither practicable nor essential to examine the other local persons, when two of them already witnessed the search and seizure. 10. Learned Counsel appearing on behalf of the appellant has relied on a decision reported in AIR 1997 Supreme Court 2417 (Sahib Singh -Vs.- State of Punjab), and contended if there is no evidence to indicate with whom the article was kept after seizure till it was sent to the expert, in that case appellant deserves acquittal. With my great respect to the learned Counsel appearing on behalf of the appellant, I may conclude that the spirit of the said judgment is not such either on facts of this case or on law. In that case relying in 1995 Supp (3) SCC 217 (Amarjit Singh -Vs.- State of Punjab) Hon’ble Apex Court held that there was infirmity because there was no evidence where the alleged revolver was kept. But in the instant case, the Investigating Officer has categorically mentioned that the fake currency notes were kept in Thana Malkhana and that too in sealed condition under a sealed packet. No cross-examination was done by the defence to the Investigating Officer on this point. Therefore, the evidence of Investigating Officer is totally fortified. Learned Counsel also contended that search and seizure was also defective because no independent witness of that locality was there. In my humble view, the Hon’ble Apex Court did not intend to say that. No cross-examination was done by the defence to the Investigating Officer on this point. Therefore, the evidence of Investigating Officer is totally fortified. Learned Counsel also contended that search and seizure was also defective because no independent witness of that locality was there. In my humble view, the Hon’ble Apex Court did not intend to say that. What the Hon’ble Apex Court says “in a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found – as in the present case – that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility.” In the instant case, two persons were already called before the search and seizure and they deposed and they proved their signatures in the seizure list, although one of them was turned hostile to the prosecution and the said evidence of hostile witness will not change the complexion of the case. Therefore, finding of the Hon’ble Apex Court in this regard certainly goes against the defence. 11. Learned Counsel appearing on behalf of the appellant also relied on the decision reported in 2003 Supreme Court Cases (Cri) 481 (State of U.P. -Vs.- Arun Kumar Gupta). He relied on the observation of the Hon’ble Apex Court in regard to Section 100 (4) of Criminal Procedure Code. In that case it was a recovery from the house of the accused and there was no explanation from the prosecution for not summoning any independent witness residing in that locality. Here the picture is different, search and seizure took place on a public road. So question of summoning of any independent witness is not required because they have already called two witnesses to be present at the time of recovery. Here the picture is different, search and seizure took place on a public road. So question of summoning of any independent witness is not required because they have already called two witnesses to be present at the time of recovery. Learned Counsel appearing on behalf of the appellant also relied on the decision reported in 2003 Supreme Court Cases (Cri) 1774 (Aslam Parwez -Vs.- Govt. of Nct of Delhi), according to him, reliability of evidence of police personnel is unsafe in order to convict the accused. In the instant case, we find that the factual aspect of that case is substantially different from the present one. Firstly, the incriminating articles i.e. revolver and cartridges was recovered at the instance of an accused from an open place accessible to all and that the recovery was pursuant to the statement of the accused. But here the position is quite different. Learned Counsel also relied on the decision reported in 2003 Supreme Court Cases 1749 (Babu Das –Vs.- State of M.P.), on perusal of the said judgment it appears to me that the Hon’ble Court found “from the evidence of P.W.17, we notice that undoubtedly, he is a stock witness who has been appearing as a witness for recovery on behalf of the prosecution even as far back as the year 1965, therefore, we will have to be very cautious in accepting his evidence.” In the instant case, there is no such suggestion even that the local independent witness was a stock witness learned Defence Counsel relied on a decision reported in 2005 Cr.L.J. 1746 (State of Rajasthan –Vs.- Gurmail Singh) and contended that Thana Malkhana register was not produced to prove that seized articles were kept in the Thana Malkhana for a considerable period and that the sealed articles if at all were sent to the excise laboratory with the seal for comparison of the sealed pocket. That judgment passed by the Hon’ble Apex Court was on another ground. That was a case of NDPS, where certain procedures are to be maintained for preservation of the articles. These are Fake Indian Currency Notes case that principle for comparison of the seal does not require here. He has relied on the decision reported in AIR 1976 Supreme Court Cases 985 (Bhagwan Singh –Vs.- State of Rajasthan). According to the learned Counsel testimony of police personnel has to be discarded. These are Fake Indian Currency Notes case that principle for comparison of the seal does not require here. He has relied on the decision reported in AIR 1976 Supreme Court Cases 985 (Bhagwan Singh –Vs.- State of Rajasthan). According to the learned Counsel testimony of police personnel has to be discarded. On perusal of the said judgment I find that the finding of the Hon’ble Apex Court was on the ground that except one police constable, no other person came forward to support the prosecution case in an offence of bribe. He has also relied on the decision reported in 2004 Supreme Court Cases (Cri) 1173 (Pramod Mahto –Vs.- State of Bihar). On a careful scrutiny of the said judgment of the Hon’ble Apex Court, it seems to me that the said judgment does not fit in this case. In spite of that I would like to discuss the decision reported in 2004 Supreme Court Cases (Cri) 2032 (Vijaybhai Bhanabhai Patel –Vs.- Navnitbhai Nathubhai Patel). In that case there was inconsistent version of the prosecution witnesses and there was also delay of two days in summoning on the witnesses. There is nothing on record, in this instant case nor any question was put to the Investigating Officer. Therefore, the said decision shall not help him in any way. On the contrary, after going through the evidence, it seems to me that the necessary ingredients of Section 489 (C) of Indian Penal Code has been established. Search and seizure is undoubtedly perfect. There is no contradiction in the testimonies of the prosecution witnesses. There is absolute corroboration from their testimony in support of the prosecution case. Above all expert report has also supported the prosecution. 12. At last a compassionate submission was made by the learned Counsel appearing on behalf of the appellant that the accused appellant is all along in custody since the date of offence and he deserves remission of sentence. This type of offence is not an ordinary offence. This type of offence hits economy of our country as well. Therefore, no leniency should be shown to such an offence which is against the nation as a whole. Therefore, I have no option left with except to put a seal of approval in the impugned judgment passed by the learned Trial Court. During the pendency of the appeal, the appellant was granted bail. Therefore, no leniency should be shown to such an offence which is against the nation as a whole. Therefore, I have no option left with except to put a seal of approval in the impugned judgment passed by the learned Trial Court. During the pendency of the appeal, the appellant was granted bail. Period of detention already undergone shall be set off accordingly. This instant criminal appeal is dismissed. 13. Accordingly, learned C.J.M. Nadia, is hereby directed to take all efforts so that the convict/appellant be produced before the learned Trial Court for serving out the rest part of the sentence. The S.P. Nadia is hereby also directed to apprehend the appellant and to produce him before the learned C.J.M. Nadia so that the convict/appellant serves out the rest part of the sentence. 14. Let a copy of this judgment and LCR be sent to the learned Trial Court, learned C.J.M. Nadia & S.P. Nadia for information and taking necessary action. 15. Urgent certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.