Gujarat High Court
Ramjan Haji Hathikhan vs State Of ... on 5 February, 2014
Author: Jayant Patel
Bench: Jayant Patel, R.D.Kothari
R/CR.A/2254/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 2254 of 2010
With
CRIMINAL APPEAL NO. 78 of 2011
With
CRIMINAL APPEAL NO. 541 of 2011
With
CRIMINAL APPEAL NO. 944 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE R.D.KOTHARI
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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RAMJAN HAJI HATHIKHAN....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MS SADHANA SAGAR, ADVOCATE for the Appellant(s) No. 1 (in Cr.A
Page 1 of 14
R/CR.A/2254/2010 JUDGMENT
2254/2010, Cr.A 78/2011 & (in Cr.A 944/2011 for Respondent No.3)
MR MADANSINGH BAROD for the Appellant(s) No.1 (in Cr.A 541/2011)
MR HL JANI, APP for the Opponent(s)/Respondent(s) No. 1 (in Cr.A
2254/2010, Cr.A 78/2011, & Cr.A 541/2011 and for Appellant in Cr.A 944/2011)
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CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE R.D.KOTHARI
Date : 05-06/02/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. As all the appeals arise from the common judgement and order passed by the learned Sessions Judge, they are being considered simultaneously. As there are Cross Appeals, parties shall be referred to as per their status before the trial Court as "Accused No.1 (A-1), Accused No.2 (A-2), Accused No.3 (A-3)", as the case may be.
2. The short facts of the case are that the complaint was filed on 9.6.2009 by Police Sub- Inspector, Shri C. L. Solanki, wherein it was stated that the information was received that one Jogaram @ Jogo Hiraji Suthar of Rajasthan was to come with fake currencies to be sold in the market near Adalaj four roads and hence, the Page 2 of 14 R/CR.A/2254/2010 JUDGMENT information was verified and thereafter the watch was arranged. After undergoing the other formalities for raiding, when there was watch arranged near Belapeth Dargh at about 11.30, one person, who had put on sky-blue coloured pant, off-white coloured shirt of full sleeve, with a small black coloured hand-purse in his hand was coming from Kalol, Mehsana. When the said person reached near banyan tree near the gate of Shekhavat Transport, his conduct was found to be doubtful and, therefore, raid was effected, in presence of panchas, for Jogaram @ Jogo Hiraji Suthar (A-1) and on further search by panchas, of denomination of 'Rs.1000', 350 currency notes and of denomination 'Rs.500', 100 currency notes were found from the hand-purse. The said notes were seized and the complaint was filed for the offence under Section 489A, Section 489B, and Section 489C read with Section 120B of IPC. The said complaint was investigated by the police and it was found in the investigation that A-1 and A- 2 were also involved. In the investigation A-2 was found to be in possession of 100 fake currency notes of denomination of 'Rs.1,000'. Page 3 of 14
R/CR.A/2254/2010 JUDGMENT Initially the charge-sheet was filed against A-1 and A-2 and then the case was committed to the Sessions Court being Sessions Case No.94/2009. Thereafter, subsequently, as the involvement of A-3, Hajari Velabhai Suthar (Ori. Accused in Sessions Case No.102/2009) was also found, charge-sheet was filed separately against him and the case was committed to the Sessions Court being Sessions Case No.102/2009. The learned Sessions Judge, thereafter, framed the charge and a common trial was conducted. Therefore, accused of Sessions Case No.94/2009 shall be referred to as 'A-1' and 'A-2', whereas for Sessions Case No.102/2009, the accused shall be referred to as 'A-3' for the sake of convenience.
3. The prosecution, in order to prove the guilt of the accused, examined 10 witnesses, the details whereof are mentioned at paragraph 9 of the judgement of the learned Sessions Judge. The prosecution also produced 16 documents, the details of which are mentioned by the learned Sessions Judge at paragraph 10 of the impugned judgement. The learned Sessions Judge thereafter recorded the statement of each of the accused Page 4 of 14 R/CR.A/2254/2010 JUDGMENT under Section 313 of Cr.P.C., wherein the accused denied the evidence against them and in the further statement, Jogaram @ Jogo Hiraji Suthar (A-1) stated that he was innocent and he had come for purchasing fodder/grass for his cattle and he has been wrongly arrested in a false case against him and he is not directly or indirectly involved in the offence. The learned Sessions Judge thereafter heard the prosecution and the defence and found that the prosecution has been able to prove the case against all the accused for the offence under Section 489B and Section 489C read with Section 120B of IPC against A-1 and A-2. However, so far as A-3 is concerned, the learned Sessions Judge found that the prosecution has been able to prove the case for the offence under Section 489A read with Section 120B of IPC. Therefore, the learned Sessions Judge convicted A-1, and A-2 for the offence under Section 489A and Section 489B read with Section 120B of IPC and further convicted A-3 for the offence under Section 489A read with Section 120B of IPC. The learned Sessions Judge, thereafter, heard the prosecution and the accused for the offence and Page 5 of 14 R/CR.A/2254/2010 JUDGMENT following sentences were imposed on:-
(1) A-1 and A-2, for the offence punishable under Section 489B read with Section 120B of IPC, with seven years' R.I., with a fine of Rs.5,000/-
and a further six months' S.I., for default in payment of fine;
(2) A-1 and A-2, for the offence punishable under Section 489C read with Section 120B of IPC, with five years' R.I., with a fine of Rs.2,000/- and a further three months' S.I., for default in payment of fine;
(3) A-3, for the offence punishable under Section 489A read with Section 120B of IPC, with seven years' R.I., with a fine of Rs.5,000/- and a further six months' S.I., for default in payment of fine.
4. It is under these circumstances, Criminal Appeal No.2254 of 2010 has been preferred by A-2, Criminal Appeal No.78 of 2011 has been preferred by A-3 and Criminal Appeal No.541 of 2011 has been preferred by A-1 against conviction and sentence, whereas State has preferred Criminal Appeal being Criminal Appeal No.944 of 2011 for enhancement of sentence.
Page 6 of 14
R/CR.A/2254/2010 JUDGMENT 5. Ms.Sadhana Sagar, learned Counsel for the concerned appellants/respondent, Mr.Madan Singh Barod, learned Counsel for the concerned
appellant and Mr. Jani, learned APP for the State have taken us through the entire evidence on record. We have considered the judgement and reasons recorded by the learned Sessions Judge. We have heard the learned Counsel appearing for the respective parties.
6. The learned Counsel appearing for the accused, at the outset, submitted that in the present appeals, they are not challenging the conviction made by the learned Sessions Judge, if found, for the offence under Sections 489B and 489C read with Section 120B of IPC qua A-1 and A-2 and even for A-3, it was submitted that the facts and circumstances of the present case and the evidence led by the prosecution clearly goes to show that A-3 can, at the most, be convicted for the offence under Sections 489B and 489C read with Section 120B of IPC and he could not have been convicted by the learned Sessions Judge for the offence under Section 489A read with Section 120B of IPC. The learned Counsel submitted that Page 7 of 14 R/CR.A/2254/2010 JUDGMENT even if the conviction is maintained for the offence under Section 489B read with Section 120B of IPC for A-1 and A-2, taking into consideration the evidence as has come on record shows that the fake currencies were not actually used by A-1 and A-2, but they were only found to be in possession of the fake currencies, because as per the prosecution case, before the fake currencies were used, the Police has raided and the fake currencies are recovered from the possession of A-1 and A-2. Hence, the gravity of the offence shall stand reduced and under the circumstances, this Court may reduce the sentence for the offence under Section 489B read with Section 120B of IPC for A-1 and A-2.
7. Whereas, the learned APP while supporting the judgement of the learned Sessions Judge contended that the sentences imposed are on lower side. As per the learned APP, considering the facts and circumstances, the sentences imposed for the proved offences deserve to be enhanced and, therefore, the State has preferred appeal for enhancement of sentences.
8. In view of the aforesaid submission made by the Page 8 of 14 R/CR.A/2254/2010 JUDGMENT learned Counsel appearing for the accused and the learned APP, it appears that the involvement of the respective accused, as found by the learned Sessions Judge, in the incident of possession of fake currencies by A-1 and A-2 is duly proved. It has also come on record in the evidence that A-1 was found to be in possession of fake currencies of total Rs.4,00,000/- and A-2 was found to be in possession of fake currencies of total Rs.1,00,000/-. Further the evidence has also come on record to the effect that A-1 had received fake currencies from A-3, who alleged to have printed fake currencies in the computer with the help of his son Mukesh, who is an absconding accused. The recovery of computer, printer and other instruments has also come on record. Therefore, the prosecution has been able to prove guilt for the charge of Section 120B of all the accused coupled with the aspect that A-1 was found to be in possession of fake currencies of Rs.4,00,000/-, whereas A-2 was found to be in possession of fake currencies of Rs.1,00,000/-.
9. The examination of the evidence on record and more particularly scientific report of FSL at Page 9 of 14 R/CR.A/2254/2010 JUDGMENT Exh. 53 shows that the currencies were found to be fake. However, the instruments of computer, scanner and printer were examined by the FSL, but no evidence has come on record in the hard-disc or the data of the computer, which may lead the Court to believe that the fake currencies were printed in the very instrument of computer and other instruments, which were recovered in the investigation, nor any evidence has been led by the prosecution for showing that the fake currencies were printed by A-3 with the help of computer, which was recovered. Therefore, it appears to us that the finding recorded by the learned Sessions Judge for convicting A-3 for the offence punishable under Section 489A of IPC could be said as erroneous, since the prosecution has not proved the case beyond reasonable doubt for the offence punishable under Section 489A of IPC against A-3. It is true that the learned Sessions Judge has convicted A-3 for the offence under Section 489A of IPC, but in view of the aforesaid discussion, the conviction cannot be maintained for the offence under Section 489A against A-3. When the evidence has come on Page 10 of 14 R/CR.A/2254/2010 JUDGMENT record for proving that the fake currency notes were received by A-1 from A-3 and A-2 received the fake currencies from A-1. A-1 and A-2 have been convicted for the offence punishable under Section 489B as well as under Section 489C. So far as A-3 is concerned, he has been convicted for the offence punishable under Section 489A, but in view of the observations made by us, he can be convicted for the offence under Section 489B read with Section 489C read with Section 120B of IPC.
10. In view of the above, all the Accused; A-1, A-2 and A-3 deserve to be convicted for the offence punishable under Section 489B, Section 489C read with Section 120B of IPC.
11. We have now to further consider the contention raised by the learned Counsel appearing for the accused on the aspect of sentence. This Court, in the case of Haresh Kalubhai Vaghsiya Vs. State of Gujarat in Criminal Appeal No.618 of 2009 and allied matters, had an occasion to consider the aspect of sentence for the offence under Section 489B read with Section 489C read with Section 120B of Page 11 of 14 R/CR.A/2254/2010 JUDGMENT IPC, in a case where fake currencies of total Rs.99,800/- were found from the respective accused therein. This Court, in the said decision, had found that the gravity of the offence under Section 489B could be said as reduced, because the prosecution has not led any evidence to show that the fake currencies were actually used as if genuine by any of the accused. On account of the same, this Court in the said matter had imposed sentence of five years' R.I., upon the respective accused for the offence under Section 489B and Section 489C of IPC. We find that similar view deserves to be taken, since in the present case also, the prosecution has not led any evidence to show that the fake currencies, which were recovered from the possession of A-1 and/or A-2, handed over by A-3 to A-1, were put into circulation. Under these circumstances, we find that the conviction of A-1, A-2 and A-3 deserves to be maintained for the offence under Section 489B and Section 489C read with Section 120B of IPC and sentence of five years' R.I., upon each of the accused with the fine of Rs.5,000/- upon each of the accused Page 12 of 14 R/CR.A/2254/2010 JUDGMENT and further six months' S.I., for default in payment of fine deserve to be imposed.
12. In view of the observations and discussions, the judgement and order passed by the learned Sessions Judge in Sessions Case No.94/2009 and Sessions Case No.102/2009 is modified to the extent that Jogaram @ Jogo Hiraji Suthar (Accused No.1) and Ramjan Haji Hathikhan (Accused No.2) of Sessions Case No.94/2009 and Hajaribhai Velabhai Suthar, Accused of Sessions Case No.102/2009, all are convicted for the offence punishable under Section 489B and Section 489C read with Section 120B of IPC with the sentence of five years' R.I., upon each of the accused and the fine of Rs.5,000/- upon each of the accused with the further six months' S.I., for default in payment of fine.
13. The bail bond shall stand cancelled and the concerned accused; Ramjan Haji Hathikhan (Accused No.2) of Sessions Case No.94/2009 and Hajaribhai Velabhai Suthar, Accused of Sessions Case No.102/2009 shall be taken into custody.
14. At this stage, learned Counsel appearing for the appellants of Criminal Appeal No.2254 of 2010 Page 13 of 14 R/CR.A/2254/2010 JUDGMENT and of Criminal Appeal No.78 of 2011 namely; Ramjan Haji Hathikhan (Accused No.2) of Sessions Case No.94/2009 and Hajaribhai Velabhai Suthar, Accused of Sessions Case No.102/2009 prays that her clients are on bail and, therefore, some reasonable time may be given to surrender.
15. Considering the facts and circumstances, concerned accused shall surrender with the concerned jail authority within a period of three weeks from today, failing which, they shall be arrested and lodged with the jail authority.
16. All the appeals, including the appeal preferred by the State for enhancement of sentence shall stand disposed of accordingly.
(JAYANT PATEL, J.) (R.D.KOTHARI, J.) vinod Page 14 of 14