Calcutta High Court (Appellete Side)
Haider Ali Khan @ Bapan vs State Of West Bengal on 29 November, 2019
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Item No. 407
tkm/ss & PA
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Suvra Ghosh
C.R.A. 726 of 2016
Haider Ali Khan @ Bapan
Vs.
State of West Bengal
For the appellant : Mr. Mazhar Hossain Chowdhury
Heard on : 29.11.2019
Judgment on : 29.11.2019
Joymalya Bagchi, J.:
The appeal is directed against the judgment and order dated 29.11.2016 and 30.11.2016 passed by the learned Additional Sessions Judge, 2nd Court Bankura in Sessions Trial no 03(4)/11 arising out of Sessions Case no. 07(2)/11 convicting the appellant for commission of offence punishable under Sections 489A/489B of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for ten years and to pay fine of Rs.5,000/- in default, to suffer simple imprisonment for one year more for the offence punishable under Section 489A of the Indian Penal Code, to suffer rigorous imprisonment for ten years and to pay a fine of Rs.5,000/-, in default, to suffer simple imprisonment for one year for the offence punishable under section 489B of the Indian Penal Code. Both the sentences shall run concurrently.
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The prosecution case as alleged against the appellant is to the effect that on 18.4.2010 at 7 p.m. a person came to the shop of P.W 1 Swapan Tung and wanted to purchase five packets of cigarettes and other articles. P.W 1 handed over cigarette and other articles to him and demanded Rs. 250/- as price of the said articles. The said person handed over three currency notes of Rs. 100/- each. On examining the notes, P.W 1 suspected that currency notes were fake. He showed the currency notes to neighbouring shop owners who told him that the notes were forged. Thereupon they confronted the person who admitted that notes were counterfeit and stated that there were other counterfeit notes with him. He also disclosed his identity as Haidar Ali Khan @ Bapan of village Sar, P.S Ousgram District - Burdwan and presently residing at Ranigunj, Haldar Bandh. Written complaint was lodged by P.W 1 leading to registration of Beliatore P.S case no. 21/10 dated 18.4.2010 under sections 489A/489B/489C IPC. Koushik Kundu (P.W 8), investigating officer in the present case came to the spot and arrested the appellant. He seized one piece of Rs. 500/- and five pieces of counterfeit currency notes of Rs. 100/- each. Motorcycle of the appellant was also seized. In the course of interrogation appellant stated that he could take the police to the place where he had secreted other counterfeit notes. Pursuant thereto, 12 pieces of counterfeit notes of Rs.100/- each and two pieces of counterfeit notes Rs.100/- each with extended papers, one HP Dexjet printer, power adapter and some A4 papers were seized from the residence of the appellant. Counterfeit currency notes were sent for examination and upon receipt of report charge sheet was filed against the appellant. Case was committed to the court of sessions and charges were framed against the appellant under sections 489A/489B IPC. Appellant pleaded not guilty and claimed to be tried. In the course of trial prosecution examined 8 witnesses and 3 exhibited a number of documents. In conclusion of trial, learned trial judge by judgement and order dated 29.11.2016 and 30.11.2016 convicted and sentenced the appellant, as aforesaid. Hence, the present appeal.
Learned Counsel appearing for the appellant submits that most of the prosecution witnesses had turned hostile and there is no evidence to show that the appellant had handed over three counterfeit notes to P.W 1. Hence, ingredients of the offence punishable under section 489B IPC has not been proved. There is also no material to show that the appellant was indulging in manufacture of counterfeit currency notes and accordingly he is entitled to an order of acquittal.
I have gone through the evidence on record.
P.W. 1, Swapan Tung, de facto complainant, has not supported the prosecution case and was declared hostile. He, however, admitted that a person came to his shop and handed over fake currency notes of Rs. 100 for purchasing articles. Subsequently, the said person was arrested. He proved his signature on the FIR. He also deposed that he put signature on a seizure list with regard to seized of some currency notes from Haldar Bundh (Exhibit-3). He, however, failed to identify the appellant in Court.
Similarly his brother Dilip Tung, P.W. 2 and Subhash Tung, P.W. 3 who were present at the spot deposed that a person had come to the shop of P.W. 1 for purchasing cigarettes and handed over fake currency notes. P.W. 2 is the scribe and had written the complaint as per instruction of local people. He had explained the contents to his brother who put his signature thereon. Police came to the spot and recovered some currency notes from the person who was arrested for handing over fake notes. He signed on the seizure list. P.W. 3 stated that the arrested person had disclosed his name as Haider Ali and he had 4 witnessed recovery of currency notes from the possession of the arrested person.
P.W. 4, P.W. 6 and P.W. 7 are signatories to the seizure of currency notes and other articles from the residence of the appellant. They, however, were declared hostile. P.W. 6 stated that police seized articles from the residence of the appellant. His wife was present at the time of occurrence. He claimed that he put signature on blank paper.
P.W. 7, Basudeb Pramanik, stated that recoveries were made from the room of Haider but he had signed on blank paper.
P.W. 8, Kaushik Kundu, is the investigating officer in the instant case. He deposed one Swapan Tung lodged written complaint against Haider Ali Khan. He drew up the formal FIR. He came to the place of occurrence and prepared rough sketch map with index (Exhibit - 6). He seized 3 pieces counterfeit notes of Rs. 100/- each bearing Nos. 7FD 848823, 8CD 861013 & 8CD 861013 from the spot. Accused signed on the notes. He had given the notes to P.W. 1 for purchasing cigarette. He arrested the accused and seized one currency note of Rs.500 and 5 pieces of counterfeit notes of Rs. 100 each from the possession of the accused. He seized the motorcycle of the accused. He put labels on the seized currency notes. Accused was remanded to custody. On interrogation accused confessed that he would help him to recover counterfeit currency notes and show him the place where the notes have been kept. Accordingly, pieces of extended paper for counterfeiting notes, A4 papers, HP printer and other currency notes were seized from the house of the accused. He seized the articles under a seizure list (Exhibit -4). He sent the counterfeit notes to Director, Bharatiya Note Mudran Ltd., Salboni under an order of Magistrate. He identified 5 the seized articles in Court. He proved the jimmanama (Exhibit - 8). He identified the accused. He submitted charge-sheet.
In cross-examination he admitted that the confessional statement of the accused is not in the case diary.
P.W. 5, B.V. Shyamprasad, is the Manager of Bharatiya Reserve Bank Note Mudran Pvt. Ltd., Salboni. He deposed that they received sealed container containing 19 notes, that is, 1 note of Rs. 500/- and 18 pieces notes of Rs.100/- each. He proved his report (Exhibit - 5) which showed that the notes are fake.
Although most of the prosecution witnesses have been declared hostile, analysis of their evidence would show that a person had come to the shop of P.W. 1 and had wanted to purchase 5 packets of cigarettes. P.W. 1 handed over the cigarette packets and claimed Rs. 250/- as sale price. The person handed over 3 currency notes which were suspected to be fake. Police was intimated and the said individual was apprehended from the spot. Although P.W. 1, P.W. 2 and P.W. 3 failed to identify the accused in Court, P.W. 3 stated that the name of the person who handed over the counterfeit notes was Haider Ali. P.W. 8 is the police officer who came to the spot to investigate the crime. He arrested the appellant from the spot. Upon search, one piece of Rs.500/- each and 5 pieces of currency notes of Rs. 100/- each suspected to be fake were recovered from his possession. Signature of P.W. 1 and P.W. 2 on the seizure list have been proved. Subsequently on 20.04.2010, 12 pieces of counterfeit currency notes of Rs.100/- each along with pieces of extended papers used for preparing counterfeit currency notes along with HP printer and other articles were seized from the residence of the appellant. Although independent witnesses to the seizure namely, P.W. 4, P.W. 6 and P.W. 7 have claimed that they signed on blank paper, the witnesses admitted in Court that the seizure of articles had 6 taken place from the residence of the appellant while his wife was present at the spot.
It is trite law that evidence of hostile witnesses ought not to be rejected as a whole. On the other hand, evidence of such witnesses are to be read in the backdrop of the facts and circumstances of the case and subjected to strict scrutiny so that the truth may be culled out from their statements.
Upon testing the versions of the hostile witnesses on the anvil of admitted circumstances, it appears that the person who had handed currency notes to PW 1 had been apprehended by PW 8 and his motorcycle was also seized. PW 3 claimed that the apprehended person disclosed his name as Haider Ali.
These circumstances unerringly point to none but the appellant as the person who was present at the spot and had handed over 3 counterfeit currency notes to P.W. 1. The said currency notes were seized by PW 8 from the spot and were sent for examination by expert (PW 5). His report (Exhibit -5) establishes the notes to be fake. Hence, ingredients of the offence punishable under section 489B of the Indian Penal Code have been proved against the appellant.
Evidence has also come on record that pieces of extended papers used for counterfeiting notes, printer and other counterfeit currency notes were seized from the residence of the appellant. Though P.W. 4, P.W. 6 and P.W. 7, that is, independent witnesses to the seizure, claimed that they signed on blank paper, it is relevant to note that the said witnesses have admitted that on the fateful day various articles were seized from the residence of the appellant by the police. Seized articles were identified in Court by PW 8 (I.O.). If the evidence of the hostile witnesses are read as a whole in the backdrop of the seized articles identified in Court, there is no doubt that the incriminating articles including a 7 number of counterfeit notes were recovered from the residence of the appellant proving the ingredients of the offence under section 489 A of IPC.
When witnesses turn hostile and resort to evasive stances like refusing to identify an accused in Court or to plain falsehood to screen the offender, it is the duty of the Court to analyse the reliability of their versions on the anvil of admitted circumstances and broad probabilities of the case. As discussed though PWs. 1, 2 and 3 declined to identify the appellant in Court, the undeniable circumstances that the appellant was arrested at the spot and counterfeit notes and other incriminating articles were recovered not only from his possession but also his residence prove the prosecution case beyond doubt.
Hence, conviction of the appellant under section 489A and 489B of the Indian Penal Code is established beyond doubt.
Coming to the sentence imposed on the appellant, I find that the appellant does not have criminal antecedents. He has already undergone more than nine years of imprisonment.
Accordingly, I modify the sentence imposed on the appellant for the offence punishable under section 489A IPC and direct him to suffer rigorous imprisonment for the period already undergone and shall pay a fine of Rs. 5,000/, in default, to suffer simple imprisonment for one year more. Sentence imposed on him on the score of offence punishable under section 489B of IPC shall remain unaltered. Both the sentences shall run concurrently.
Appeal is, thus, disposed of.
The period of detention, if any, undergone by the appellant during the period of investigation, enquiry and trial shall be set off against the substantive sentence, as aforesaid, in terms of Section 428 of the Code of Criminal Procedure.
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Copy of the judgment along with L.C.Rs. be sent down to the trial court at once.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
I agree.
(Suvra Ghosh, J.) (Joymalya Bagchi, J.)