Judgment · High Court · 2012

Crl.A. 33/2008 BEFORE HON’BLE MR. JUSTICE CR SARMA This appeal is directed against the judgment and order, dated 8/ 1. 1/2008, passed by the learned Additional Sessions Judge (FTC), Sivasagar, in Ses sions Case No. 8 (S-S)/2006. By the impugned judgment and order, the learned Ses sions Judge convicted the appellant and another under sections 489(B) and 489 (C ) IPC and sentenced them to suffer rigorous imprisonment for seven years and pay fine of Rs. 2000/- in default undergo imprisonment for a period of six months f or their conviction under section 489(B). The convicted persons were also senten ced to suffer rigorous imprisonment for four years for their conviction under se ction 489(C) IPC. It has been directed that both the sentences shall run concurr ently. Aggrieved by the said conviction and sentence, one of the convicted perso ns, namely Shri Jyotish Baruah has come up with this appeal. 2. llant and Mr. B. Gogoi, learned Additional Public Prosecutor. The prosecution case, in brief, is that, on 31/7/2004, Shri Rant 3. u Das, PW1, informed the Police Outpost at Joysagar, that, on the same date at a bout 4 P.M., two boys, after taking tea in his tea stall, made the payment by gi ving a note of Rs. 100 denomination, which was suspected to be a fake one. Thoug h the said boys tried to flee the place, the local people could apprehend them a nd they were handed over to the Police. Police seized a note of 100 Rs. Denomina tion from the informant i.e. PW1, vide exhibit 2. Upon search, Police recovered 111 numbers of notes of 100 rupee denomination from the possession of the accuse d Mr. Jintu Sharma and 78 numbers of notes of 100 number denominations from Jyot ish Baruah i.e. the appellant. The said currency notes which were suspected to b e forged, were seized vide Exhibit Nos. 3 and 4. On the same day, the informant (PW1) lodged a written ejahar, exhibit 1 with the Police. On receipt of the said FIR, Police launched investigation into the matter and registered a case under sections 489(B) and 489 (C) IPC against the appellant and two others. During the investigation, Police sent the seized currency notes for examination in the For ensic Science Laboratory (for short FSL) and the FSL report reveal that those we re forged Indian currency notes. Accordingly, at the close of investigation, Pol ice submitted charge sheet against the appellant and two others, under section 4 89(B) and 489 (C) IPC. 4. The offence being exclusively triable by the Court of Sessions, learned Judicial Magistrate, First Class committed the case to the Court of Sess ions. The learned Sessions Judge framed charge against the appellant and Shri Ji ntu Sharma under sections 489 (B)/489(C) and against Sri Ramen Dutta 489(A) IPC. The particulars of charges were read over and explained to the accused persons to which they pleaded not guilty. In order to prove their case, the prosecution examined as many a 5. s eight witnesses, including the examiner of questioned documents of FSL (PW7) a nd the Investigating Police Officer (PW8). The prosecution also exhibited certai n documents, including the FIR, Seizure List, FSL, relevant GD Entry and the cha rge sheet. After examination of the prosecution witnesses, the accused persons w ere examined under section 313 Cr.P.C. They denied the allegations, brought agai nst them and declined to adduce evidence. The learned Sessions Judge, considerin g the evidence on record, came to the findings that the prosecution failed to es tablish the case against accused Sri Ramen Dutta. Accordingly, he was acquitted of the charges under section 489 (A) IPC. However, the appellant and the co-accu sed namely Sri Jintu Sharma were found guilty of the alleged offences and accord ingly they were convicted as indicated above. 6. Mr. P. Bora, learned counsel for the appellant, referring to the evidence, on record, has submitted that the prosecution failed to establish the seizure of forged currency notes from the possession of the appellant, by adduc ing cogent and reliable evidence. It is submitted that the learned Sessions Judg e committed error by recording the conviction only on surmises and conjectures. The learned counsel for the appellant has strenuously argued that none of the pr osecution witnesses, including the seizure list witnesses, supported the seizure of forged currency notes and as such the prosecution failed to establish the ca se, beyond all reasonable doubt. In view of the above submission, the learned co unsel appearing for the appellant has prayed for acquittal of the appellant. Refuting the said argument, advanced by the learned counsel for 7. the appellant, Mr. B. Gogoi, learned Additional Public Prosecutor has submitted that there is sufficient material evidence to show the seizure of the fake curre ncy notes from the possession of the appellant and that the examiner of question ed document of FSL found that the seized currency notes were fake. Supporting th e impugned conviction and sentence, the learned Additional Public Prosecutor has submitted that the learned Sessions Judge has committed no error by recording t he conviction and sentence as indicated above. In order to appreciate the counter arguments, advanced by the le 8. arned counsel appearing for both the parties and to examine the correctness of t he impugned judgment and order, I feel it appropriate to, briefly, scan the evid ence on record. There is no dispute that the examiner of the questioned document s opined that the currency notes, sent to him by the Investigating Officer for e xamination, were found to be fake Indian currency notes. Now the question is whether those notes were found in possession of the present appellant and if so whether they had used those forged/counterfeit currency note s as genuine. According to the prosecution, vide Exhibit No. 2 i.e. the seizur 9. e list, the Investigating Officer seized one number of forged currency note of R s. 100 denomination, on being produced by the accused Rantu Das (since acquitted ), on 31/7/2004 i.e. on the date of occurrence. The said Rantu Das was the infor mant, who lodged the FIR (Exhibit 1). In the FIR, it has been stated by the info rmant that two unknown persons, after taking tea in his tea stall, had given a c urrency note of Rs. 100/- denomination, which was suspected to be a forged curre ncy note. It is also the case of the prosecution that several 100 rupee denomina tion forged currency notes were seized from the appellant and Jintu Sarma vide E xhibit 3 and 4 and that those seized currency notes were found to be forged or c ounterfeit by the examination of the Forensic Science Laboratory. 10. Sri Rantu Das, who lodged the FIR (Exhibit 1), deposed as PW1. H e stated that two boys, after taking tea in their tea stall, had given a 100 rup ee note to his mother, who took the same to a nearby liquor shop for change and that she was told that the said note was a forged one. According to this witness , the local people had detained the said two boys. This witness was not present in their shop at the relevant time and he came to know about the incident after returning home at about 5 P.M. He further stated that he was taken to Police Sta tion, wherein he was asked to put his signature on a paper. This witness stated that his mother had handed over the currency note to Police and that Police had taken his signature on the seizure list i.e. Exhibit 2. This witness was declare d hostile by the prosecution and cross-examined on behalf of the prosecution. He denied the suggestion that the said 100 rupee note was given to him and that he had taken the same to the nearby liquor shop for obtaining change. In his cross -examination, made on behalf of the defence, PW1 stated that he did not know the appellant and that he had never seen him earlier. He further stated that Police had obtained his signature on the FIR, which was written prior to his arrival i n the Police Station. He further stated that Rupees 19,000/- was not seized from the accused persons in his presence. From the evidence of the said witness, it appears that at the relevant time i.e. at the time of giving the Rs. 100 rupee note by the appellant, this witness was not present and that the said money was received by his mother. It is also clea rly found from his evidence that Police had obtained his signature on a previous ly written FIR. Therefore, it can be held that the statement made in the FIR was not the version of PW1 i.e. the informant. Though Exhibit 2 indicates that one 100 rupee note was seized from Shri Rantu Das i.e. the informant (PW1), PW1 clea rly stated that the said 100 rupee note was given to Police by his mother and no t by him. Therefore, it cannot be held that the said 100 rupee note was seized f rom PW1. In fact PW1 was not present at the time of giving the same by the appel lant. The mother of PW1 to whom the said currency note was given has not been ex amined by the prosecution to prove the claim that the said note was given to her by the appellant. In view of the above, PW1 failed to substantiate the prosecut ion version that one 100 rupee note was given by the appellant to the informant i.e. PW1 and that the same was seized from PW1. Therefore, the seizure of the 10 0 rupee note vide Exhibit No. 2 could not be proved. 11. Shri Dwipen Kalita (PW2) who had a pharmacy near the shop of the informant’s mother, stated that he had written the FIR (Exhibit 1). He has also exhibited his signatures on Exhibit Nos. 2, 3 and 4, by which the currency note s were seized by the Police. In his cross-examination, this witness stated that the mother of the informant (PW1) had gone to the liquor shop for purchasing liq uor. He further stated that he had written the FIR on being dictated by the Poli ce and that the signature of PW1 was taken on the FIR. He also stated that he di d not know from where the Police seized the money. He further stated that Police obtained his signature on a paper and that he did not know what was written the rein. Carefully perusing the evidence of this witness, it is found that he had w ritten the FIR, on being dictated by the Police and that he did not know from wh ere the Police had seized the money. Therefore, this witness failed to support t he prosecution version that the seized money amounting to Rs. 19,000/-, was seiz ed from the possession of the appellant and others. Therefore, it appears that t he seizure was not made in his presence. Shri Hem Kanta Das, who also had a tea stall near the place of o 12. ccurrence, deposing as PW3, proved his signature on Exhibit 2 as Exhibit 2(3). I n his cross-examination, this witness stated that he put his signature, on being asked by the Police and that he did not know as to what was written therein. He further stated that no money was seized, in his presence, from the accused Jyot ish Boruah. This witness has been examined in support of seizure of Rs. 100 from PW1, but he clearly stated that he did not know what was written in the seizure list and that he had put his signature, on being asked by the Police. Thus it a ppears that he failed to support the prosecution version regarding seizure of an y money in his presence. 13. Shri Indrajit who also has a tea stall near the shop of PW1 depo sed as PW4. He exhibited his signatures on Exhibit No. 3 and 4 as Exhibit 3(2) a nd Exhibit 4(2). He also stated that Police had seized about Rs. 19,000/- from t he possession of the two boys who were detained in the shop of one Promod Kalita . He identified Shri Jyotish Baruah as one of the persons detained by the public . In his cross-examination, this witness stated that he did not know from where the money was seized. He further stated that he did not know from where and from whom the said money was seized. Hence, it appears that his witness has contradi cted his evidence given in chief examination. From the said evidence of this wit ness, it is found that the money was not seized in his presence from the possess ion of the appellant. Shri Promod Kalita, who had the shop near the place of occurrenc 14. e deposed as PW5. He stated that he had heard that two boys had paid a 100 rupee currency note to the mother of PW1, after taking tea in her shop. In his cross examination, this witness stated that he did not see seizure of the money from t he accused persons. He also stated that he did not know as to what was written i n the paper i.e. the Exhibit No. 4, wherein his signature was obtained. 15. Shri Krishna Kalita, deposing as PW6, stated that, coming to kno w about the incident, he rushed to the place of occurrence and that Police had t aken his signature on some papers. He has exhibited his signatures on Exhibit 2, 3 and 4. He clearly stated that he did not see the persons, who were detained b y the public. This witness was also declared hostile and cross-examined on behal f of the prosecution. However, no incriminating evidence could be elicited from his cross-examination made by the prosecution. He denied the suggestion, put to him by the prosecution, that he had stated before the Police that an amount of R s. 19,000/- and another 100 rupee note was seized in his presence. He further st ated at the time of putting his signature, nothing was written in the said paper s. He clearly stated that Rs. 19,000/- was not seized in his presence. This witn ess also denied the prosecution version regarding seizure of money from the poss ession of the appellant.

#16. Shri Haresh Das, Deputy Director of Questioned Document Division , FSL, deposing as PW7, stated that he examined the questioned currency notes in connection with P.S. Case No. 266 under sections 489(B) and 489(C) IPC i.e. the case which has given rise to Sessions Case aforesaid after receipt of the said currency notes from the Deputy Superintendent of Police of Police Headquarters. He opined that the currency notes were found to be forged/counterfeit currency n otes. Shri Moni Mohan, who was the Investigating Officer, deposing as 17. PW8 stated that on 31/7/2008, on receipt of information about the occurrence, he made G.D. Entry No. 578 (Exhibit 6) and visited the place of occurrence, wherei n he found the appellant and others, being detained by the people thereat. He al so stated that he had seized one 100 rupee currency note vide Exhibit No. 2 from Sri Rantu Kalita (PW1). He further stated that he had seized 111 numbers of 100 rupee denomination currency notes, suspected to be forged notes from accused Ji ntu vide Exhibit 3 and 78 numbers of currency notes from Jyotish vide Exhibit 4. According to the Investigating Officer, the said seizure was made in presence o f witnesses and that opinion of FSL in respect of the said notes was obtained. T hough there is no dispute that the currency notes examined in the FSL were found to be counterfeit or forged Indian currency notes, it was the duty of the prose cution to establish by adducing cogent and reliable evidence, that the said curr ency notes were found from the possession of the appellant and that they used th e same as genuine. 18. As discussed above, none of the prosecution witnesses supported the prosecution version regarding seizure of the currency notes from PW1 and the appellant. As the prosecution has failed to establish the seizure itself, it ca nnot be safely held that the appellant possessed the counterfeit or forged curre ncy notes and that they used the same as genuine. Law is well settled that the prosecution is required to prove its case, beyond a ll reasonable doubt and the benefit of doubt always go in favour of the accused person. In the case at hand as none of the prosecution witnesses supported the prosecuti on version regarding seizure of the currency notes from the possession of the ap pellant, I find no sufficient reason to believe that the appellant possessed the forged currency notes and that he used the same as genuine. As the prosecution failed to prove the seizure itself, the prosecution case had no legs to stand. I n my considered opinion, the prosecution failed to establish the charges brought against the appellant, beyond all reasonable doubt. Therefore, I have no hesita tion in holding that the learned Trial Judge committed error by recording the co nviction and sentence as indicated above. In view of the above, I find sufficien t merit in this appeal requiring interference. Accordingly, the impugned convict ion and sentence are set aside. The appellant is acquitted. He be set at liberty forthwith, if not required in any other case. Return the lower court records.