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2017 DIGILAW 1044 (KER)

Sakeer Ussain @ Ussain v. State of Kerala

2017-07-20

K.P.JYOTHINDRANATH

body2017
JUDGMENT : 1. The challenge is against the judgment of conviction and sentence dated 10.4.2008 made in SC 158/2005 on the files of the Sessions Court, Kozhikode Division. The conviction is under Section 489 C of IPC. The sentence is to undergo rigorous imprisonment for four years and to pay a fine of Rs.50,000/- with default rigorous imprisonment for one year. 2. The question raised in this appeal is that when witnesses are questioned by more than one investigating officer and non furnishing of statements of witnesses recorded by one of the investigating officer will vitiate the whole trial? 3. The facts necessary for disposal of this appeal is as follows: On 2.3.2002 at about 6.20 p.m, the appellant herein along with another person was found in possession of counterfeit currency notes. The accused were arrested by the Circle Inspector of Police. The counterfeit notes were seized, crime registered and preliminary investigation was conducted by the local police itself. Thereafter the detective inspector of C.B.C.I.D, conducted investigation and after getting an expert opinion regarding the seized notes, filed charge. Prosecution altogether examined 6 witnesses. Exts.P1 to P14 were marked. MOs 1 to 8 were also identified. After appreciating the evidence, the court below convicted the accused and sentenced as stated above. 4. When the appeal came up for hearing, the learned counsel appearing for the appellant submitted before the court that even though originally there were two accused, who faced the trial, the second accused absconded during trial and his case was transferred to L.P. Register. It is the submission made before me that here is a case where the whole prosecution case was suspicious. To buttress this argument, the learned counsel brought to my notice the suppression of statements recorded by PW1, the detecting officer himself at the earliest point of time i.e. during the investigation conducted by himself in this case. It is the submission that it is an admitted case of the prosecution that the statements of witnesses who were cited as charge witnesses were recorded by PW1, but it was not made available to the accused. The said fact was brought to light during the trial and that was also considered by the trial court. It is the submission that it is an admitted case of the prosecution that the statements of witnesses who were cited as charge witnesses were recorded by PW1, but it was not made available to the accused. The said fact was brought to light during the trial and that was also considered by the trial court. It is the submission made before me that it is a settled position that it will go to the root of the prosecution case and when the prior statements were not provided, the appellant will be entitled for an acquittal. It is the further submission that in Purushottam Jethanand v. The State of Kutch [ AIR 1954 SC 700 ] the Hon’ble Supreme Court considered this aspect and held that it would vitiate the entire trial. While rendering this decision, the Hon’ble Apex Court considered the dictum laid down in Pulukuri Kottaya & Ors. v. Emperor [AIR 1947 Privy Council 67]. It is also the submission made by the learned counsel that it was not a mere omission, in respect of one witness, but it was relating to the whole witnesses except PW1. PW1 is none other than the officer who recorded the statement. It is the further submission made before me that the matter cannot be considered as not prejudicial, especially when it is a settled position that if any of the witnesses who were not examined by the prosecution, was examined by the defence, the said statement can be made use of. That right is now denied by the prosecution. It is also the submission that it is true that the court called the case diary by invoking the power vested upon it under Section 172 of Cr.P.C. But the right of the defence, to make use of the material was seen lost. It is also the submission that when apparently the statements of the witnesses were seen suppressed by the prosecution, it cannot be considered by the trial court that the earliest statements are identical with the subsequent statements. The submission was that the court below erred in fathom out the prejudice caused. It is also the submission that in this case, other attending circumstances are also to be considered while prejudice is evaluated. 5. The positive case of the appellant was that he was not arrested from the place as alleged by the prosecution. The submission was that the court below erred in fathom out the prejudice caused. It is also the submission that in this case, other attending circumstances are also to be considered while prejudice is evaluated. 5. The positive case of the appellant was that he was not arrested from the place as alleged by the prosecution. As per the prosecution version, the appellant was wearing a jeans at that point of time and it was the further case of the prosecution that 99 notes of 100 denomination was taken from the pocket of the jeans. The “jeans” was conspicuously absent in the seizure mahazar and the said jeans was not seen seized or produced before the court on the pretext that no other dress was available with the police to give to the accused. It is also relevant to note that prosecution got a case that a mobile phone was also recovered from the pocket of the shirt. It is the submission that when the defence got a case that he was arrested from his house at Malappuram, the best evidence would have been the call data records, which can pin point where mobile was available at the time of seizure. It is the submission that the positive case of the defence was that the appellant herein was actually implicated in the crime and it was also relevant to note that even though the prosecution got a case that there was a bank flap available with the notes, that flap was not seen marked for the reasons only known to the prosecution. It is the further submission that the non-supply of the earliest statements, actually handicapped the defence while cross examining PWs 2 and 3 who were the alleged seizure witnesses. Surely, they turned hostile. When the defence got a definite case that they were not arrested as alleged by the prosecution and there where no recovery as alleged, in the light of the attending circumstances, as highlighted above, including the fact that even though PW1 got a case that he proceeded to the spot of arrest in a private jeep from the police station on getting an information but at the same time no GD entry was seen produced and the driver of the said jeep in which he proceeded was also not cited as a witness, the whole case becomes suspicious, the appellant is entitled for an acquittal. It was the submission. 6. I heard the learned Public Prosecutor, who submitted before me that here is a case where 99 notes each that of 100 denomination as well as 101 notes of 50 denomination were seized from the appellant. PW1 was the detecting officer. The court below considered the effect of non-providing of the previous statements of witnesses. Surely, non providing of statements cannot be treated as proper. But the question before the court was that whether the trial itself will be vitiated. The court below relied upon the decision of the Hon’ble Apex Court in Noor Khan v. State of Rajasthan [ AIR 1964 SC 286 ]. It is further submitted that in Purushottam Jethanand’s case (supra) it was only an obiter dictum on the basis of Pulukuri Kottaya’s case (supra). The decision in Noor Khan’s case was delivered by the Apex Court on a later point of time and both decisions were rendered by co-equal strength benches. It is the submission that, on the latter case, the Court actually analyzed the effect of non supply of statement. The court held that the failure to supply copies of such statements to the accused and what is the prejudice caused to the accused have to be evaluated. In this case, the trial court evaluated the prejudice and came to a conclusion that practically no prejudice caused to the accused. Hence, there is no merit in the appeal. 7. After hearing both the counsel, I perused the records, oral and documentary evidence in this case. Prosecution altogether examined six witnesses in this case. The evidence in this case is as follows: PW1 was the detecting officer. According to his evidence he was the C.I. of Perambra. During the year March, 2002 at about 6.30 pm, he got an information in his office that a person wearing a biscuit colour shirt and a blue jeans aged about 30 years along with another person wearing ash colour shirt and white dhothi were exchanging counterfeit notes from a place near to Reghunath petrol pump. He along with the Sub Inspector and police party reached at the place at 6.20 pm. He saw the persons tallying with the above given descriptions. PW1 and police party approached the said person and body search was conducted. He along with the Sub Inspector and police party reached at the place at 6.20 pm. He saw the persons tallying with the above given descriptions. PW1 and police party approached the said person and body search was conducted. He identified the person in the dock, as the person who was wearing the jeans and shirt at the time of arrest. He further deposed that in the pant’s pocket there were 99 notes each having a denomination of Rs.100/- and there was also a flap of Chartered Bank, pinned on it. There was also another 101 notes each of having the denomination of Rs.50/- and over the same, there was a flap of Bank of Baroda. It was the case that, in the pocket of the other person, two notes of denomination of Rs.100/- each was also found. He was convinced that it was counterfeit notes. In the pocket of the accused there was a mobile phone of Nokia make. Articles were seized and both of them were arrested. The arrest memo prepared in respect of the appellant herein was marked as Ext.P1. Inspection memo was marked as Ext.P2. Seizure mahazar was marked as Ext.P3. Witness also identified before the court the counterfeit notes seized as per Ext.P3 mahazar. Thereafter witness deposed that after reaching at the police station, on the basis of a report, suo motu FIR registered. The report was marked as Ext.P4 and the FIR registered by him was marked as Ext.P4 (a). The accused were produced before the court with a remand report and the remand report was marked as Ext.P5 and on 3.3.2002 at 10 am, witness prepared the scene mahazar. The same was marked as Ext.P6. He further deposed that he had taken the statement of the witnesses and the property list was marked as Ext.P8. A forwarding note was presented before the court to send the seized notes for expert opinion. It was marked as Ext.P9. The copy of the covering letter to forward the notes to the expert was marked as Ext.P10. The report from the mint was marked as Ext.P11 and he further deposed that it was stated in the report that all the notes are counterfeit notes and it was handed over to the C.F. squad. PWs 2 and 3 mahazar witnesses were turned hostile. PW4 identified his signature in Ext.P6 scene mahazar. The report from the mint was marked as Ext.P11 and he further deposed that it was stated in the report that all the notes are counterfeit notes and it was handed over to the C.F. squad. PWs 2 and 3 mahazar witnesses were turned hostile. PW4 identified his signature in Ext.P6 scene mahazar. PW5 was a police officer who accompanied PW1 during the detection. PW6 investigated the crime. 8. In this case, it can be seen that the earlier investigation was conducted by PW1 himself whereas the final investigation was conducted by PW6. PW5 is the police officer who accompanied PW1. PW6 is the Detective Inspector attached to C.F. Squad, who conducted the further investigation and filed the charge. It is an admitted case that there was non supply of prior statements of witnesses recorded by PW1 to the accused. This aspect was seen considered by the trial court mainly in paragraph 40 of the judgment. There, the trial court after considering the fact that the entire statements of the prosecution witness recorded by PW6 were furnished to the accused, the effect of the non-supply of earlier statements recorded by PW1 was considered by calling the case diary to the court and recorded that the statement recorded by PW1 seems to be similar to the statements of those witnesses recorded by PW6. 9. The Apex Court in Purushottam Jethanand’s case (supra) observed that wholesale refusal to grant copies of statements would vitiate the entire trial. There cannot be no doubt regarding this proposition of law. In this case the defence got no case that a wholesale denial of statements was therein. The statements recorded by PW6 was furnished to the accused. In Noor Khan’s case (supra) the Hon’ble Apex Court considered this aspect in detail and held as follows: “21. We may repeat that the provisions of S. 162, Code of Criminal Procedure provide a valuable safeguard to the accused and denial thereof may be justified only in exceptional circumstances. The statements recorded by PW6 was furnished to the accused. In Noor Khan’s case (supra) the Hon’ble Apex Court considered this aspect in detail and held as follows: “21. We may repeat that the provisions of S. 162, Code of Criminal Procedure provide a valuable safeguard to the accused and denial thereof may be justified only in exceptional circumstances. The provisions relating to the record of the statements of the witnesses and the supply of copies to the accused so that they may be utilized at the trial for effectively defending himself cannot normally be permitted to be whittled down, and where the circumstances are such that the Court may reasonably infer that prejudice has resulted to the accused from the failure to supply the statements recorded under S.161, the Court would be justified in directing that the conviction be set aside and in a proper case to direct that the defect be rectified in such manner as the circumstances may warrant. It is only where the court is satisfied, having regard to the manner in which the case has been conducted and the attitude adopted by the accused in relation to the defect, that no prejudice has resulted to the accused that the Court would, notwithstanding the breach of the statutory provisions, be justified in maintaining the conviction. This, in our judgment, is one of these cases in which such a course is warranted.” Thus, the legal position regarding the furnishing of prior statements of witness is clear. It is a very valuable right. The denial of this right will cause prejudice to the accused. The prejudice is to be evaluated by the court to see whether the accused is entitled for acquittal or not. 10. On perusal of the police charge, it can be seen that altogether there were 11 witnesses cited as charge witnesses. Out of the same, only 6 witnesses were examined by the prosecution to prove their case. It is the prerogative of the prosecution to determine who were all to be examined on the side of the prosecution to prove their case. On a perusal of the memorandum of evidence, it can be seen that all the witnesses who were given up/not examined by the prosecution were official witnesses. It is the prerogative of the prosecution to determine who were all to be examined on the side of the prosecution to prove their case. On a perusal of the memorandum of evidence, it can be seen that all the witnesses who were given up/not examined by the prosecution were official witnesses. In this case, only two independent seizure mahazar witnesses were examined by the prosecution to prove the detection i.e. the possession of counterfeit notes by the appellant herein. The seizure mahazar witnesses turned hostile. PW1 is the detecting officer whereas PW5 is a police officer who accompanied him and who gave evidence in support of the prosecution case. In a case of spot detection and arrest, major portion of the investigation process will be over by the detection and arrest itself. Surely originally there was a charge under Section 489 B as well as under Section 489 C of IPC. In this case, he was acquitted for the offence under Section 489 B of IPC. Now, there is only a conviction under Section 489 C of IPC. In the light of the conviction for possession alone, what will be the prejudice that was caused to the appellant herein has to be evaluated by this court. 11. In this case, the prosecution mainly relied on PWs 1 and 5 to prove the possession of the counterfeit notes by the appellant herein. PW 2 and PW3 are the seizure mahazar witnesses, who turned hostile. Both the witnesses admitted the signatures. The case of the defence is that the statement recorded by PW1, while they were questioned, was not furnished to the accused as contemplated under Section 207 of Cr.P.C. Surely, it is a grave irregularity. A detecting officer conducting investigation in a crime registered suo motu by himself is not a good practice. 12. I perused the evidence of PW2 and PW3 and it can be seen that they were denying their presence at the place of incident. But, at the very same time, they admitted the signature. The admission of signature alone will be relevant in appreciation. At the very same time, it is relevant to note that the very same witnesses were seen shown as witnesses in intimation of arrest and arrest memo. Arrest memo was marked as Ext.P1. 13. Surely, those documents are not shown to the witnesses during their examination. The admission of signature alone will be relevant in appreciation. At the very same time, it is relevant to note that the very same witnesses were seen shown as witnesses in intimation of arrest and arrest memo. Arrest memo was marked as Ext.P1. 13. Surely, those documents are not shown to the witnesses during their examination. Now, apart from PW2 and PW3, the witness examined on the side of prosecution to corroborate the evidence of detection by PW1 was PW5. He was cited as an occurrence witness. His earlier statement was not provided to the appellant. As already stated, PW2 and PW3 were seizure mahazar witnesses who turned hostile. The seizure mahazar was prepared by PW1. The author of the document was examined before the court. His version regarding the detection was available in the mahazar which was marked as Ext.P3. The report on which, suo motu FIR was registered was marked as Ext.P4. The F.I.R. was marked as Ext.P4(a). Thus, the stand of PW1 is different from any other witnesses. He is the officer who recorded the earlier statements. His version regarding the incident was available in all these documents. His version is available in Ext.P4 as well as in Ext.P3 and he is the person, who detected the crime. The statement of this witness recorded by PW6 is also available. Thus, it can be seen that the conviction will be mainly depending upon the reliability of the evidence tendered by PW1 before the Court. Surely, the evidence of PW5 will be only corroborative in nature. 14. The question is whether the evidence of PW1 is intrinsically reliable without any corroborative evidence of other witnesses. The court below not relied upon PW2 and PW3, to rely upon the evidence of PW1. In this case, even excluding the evidence of PW5, whether the evidence of PW1 is reliable and can be acted upon is the question to be considered by this court. As per Ext.P4 (a), the FIR, it can be seen that it reached before the court on 3.3.2002 at 4.40 p.m. It is to be remembered that, as per the defence case, he was arrested from Malappuram, which is a place at about 100 Kilo Meters away from the police station. I also perused Exts.P1 and P2, which were allegedly prepared on 2.3.2002. I also perused Exts.P1 and P2, which were allegedly prepared on 2.3.2002. Surely one fact can be discernible from therein, that it also bears the signature of PW2 and PW3. At this juncture, this Court is fully aware of the fact that the said document was not shown to PW2 and PW3. Further, no opportunity was seen given to accused to explain under Section 313 of Cr.P.C. But the fact remains that the signature is therein and it will give assurance to act upon the evidence of PW1, but surely cannot be considered as corroborative piece of evidence as it was not put to the accused while questioning under Section 313 of Cr.P.C. Exts.P1 and P2 contain the signature of the witnesses, who turned hostile. At the very same time, the said witnesses (PW 2 and PW3) admitted the signature in Ext.P3 mahazars. Ext.P4(a) reached before the Magistrate on 3.3.2002 itself. Here is a case where not one or two notes were allegedly found in the possession of the appellant herein, but about 200 notes. It cannot be said that the detecting officer procured that much notes to implicate him in this case, especially when the defence case is that he was residing about 100 k.m away from the spot of arrest and was taken on custody from his house. No evidence was adduced by defence to belie the evidence of PW1. Even though defence got a case that call data record of the phone of the accused would have been a pointer to show from where the appellant was arrested, neither the prosecution nor the defence took any step to bring this record before the court. No reason for implication was seen highlighted. I feel that the evidence of PW1 can be relied upon, even without any corroboration by the oral evidence of other witnesses. PW6 is an Investigating Officer, who filed charge. He was an officer from CBCID. Thus, if the conviction can be made upon the solitary evidence of PW1, who is the detecting Officer, then it can be safely held that conviction is not vitiated by non supply of former statements in this case. Thus, it can be seen that prejudice caused by non supply of prior statements recorded by PW1 will not go to the root of the prosecution case. Thus, it can be seen that prejudice caused by non supply of prior statements recorded by PW1 will not go to the root of the prosecution case. Thus, the dictum laid down by the Apex Court in Noor Khan’s case (supra), when applied on the background of the facts of the case, it can be seen that, here is a case where the conviction need not be set aside. The evidence regarding detection, arrest and seizure, can be intrinsically reliable even on the solitary evidence of PW1. If that be so, the trial will not be vitiated. Thus, on verifying the facts of this case with the touch stone of the dictum laid down by the Hon’ble Apex Court in Noorkhan’s case (supra), it is held that, the prosecution succeeded in proving the offence alleged against the accused. Thus conviction is upheld. 15. The only question is that of sentence. Here, in this case, the lower court awarded a sentence of imprisonment for four years. As already highlighted, here is a case where prosecution failed to provide the copies of the statements recorded by an Investigating Officer to the accused. It is an indication that the prosecution was not assiduous while filing the charge or has not considered the matter with the required caution and diligence while conducting the case to cure the defect. At this juncture, the learned Counsel submitted that the accused got four small children and he is now leading a normal life. Section 489C of IPC reads as follows: 489C. Possession of forged or counterfeit currency-notes or bank-notes .- Whoever has in his possession any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Keeping in mind the reformative theory and re-educating the criminal but at the very same time not forgetting the gravity of the crime, the sentence is reduced to one year rigorous imprisonment and to pay a fine of Rs.1,00,000/- (Rupees one lakh only), in default, simple imprisonment for one year. With the above modification on the side of the substantial sentence and an increase in the fine amount, this appeal is partly allowed.