Himachal Pradesh High Court
State Of H.P vs Surya Parkash ....Accused/Respondent on 6 November, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 511 of 2017
Date of Decision: 31.10.2017
______________________________ _______________________________________
[
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State of H.P. .........Appellant
Versus
Surya Parkash ....Accused/Respondent.
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
For the appellant: Mr. M.L. Chauhan, Additional Advocate
General.
For the respondent: Ms. Ritika Jassal, Advocate.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
Instant criminal appeal filed under Section 378 Cr.PC, is directed against the impugned judgment of acquittal dated 26.8.2016, passed by the learned Additional Sessions Judge (II), Una, District Una, H.P., whereby the respondent-accused came to be acquitted of the offence punishable under Sections 489-C of the IPC.
2. Brief facts, shorn of unnecessary details, as emerge from the record, are that an FIR Ext.PW-6/A dated 23.10.2009, came to be registered at Police Station, Sadar District Una, H.P., against the respondent accused for the alleged commission of offence punishable under Section 489-C of the IPC. As per story of prosecution, on 23.10.2009, Sub Inspector Rajinder Sharma (PW6) was on patrolling duty at a place called Peernigaha in District Una, where he found three persons including respondent-accused wandering in suspicious conditions. Since aforesaid persons were unable to answer the query of above named sub-Inspector, they were searched by the police. During Whether reporters of the Local papers are allowed to see the judgment?
::: Downloaded on - 10/11/2017 13:34:27 :::HCHP -2-search of the respondent accused, three currency notes of denomination of Rs. 100/- bearing Nos. 4AG661121, 4AG661122 and 4AG661122, six currency notes of denomination of Rs. 50/- bearing Nos. JEA124901, JEA124901, .
9AS700129, 9AS700129, 5MM740663, 5MM740663 and three currency notes of the denomination of Rs. 10/- bearing Nos. 33V404394, 93A224081, 86D722367, were recovered from his pants. As per prosecution story, police after recovery of aforesaid currency, immediately sent a communication to the Deputy Manager, State Bank of Patiala, Una, with request to verify the currency notes as mentioned herein above, who in turn informed that currency notes of Rs.
100/- and Rs.50/- as mentioned herein above, are fake, whereas notes in denomination of Rs. 10/- are original/genuine. On the basis of aforesaid report, police registered an FIR Ext.PW6/A, on the complaint of Sub-Inspector (PW6), who later on himself investigated the matter. Subsequent to the recovery, police after completing the necessary codal formalities, sent the currency Ext.PX to SFSL Junga, who also reported that currency notes of denomination of Rs. 100/- and Rs. 50/- are not genuine, while currency denomination of Rs. 10/- are genuine.
3. After completion of the investigation, police presented challan in the competent Court of law i.e. learned Judicial Magistrate, Ist Class, Court No.II, Una, H.P., who after taking cognizance of the matter committed the case to the Court of learned Additional Sessions Judge-II Una District Una, H.P. for trial. Learned Additional Sessions Judge, on being satisfied that prima-
facie case exists against the respondent accused, framed charges against him for the commission of offence punishable under Section 489-C of the IPC, ::: Downloaded on - 10/11/2017 13:34:27 :::HCHP -3- to which he pleaded not guilty and claimed trial. Prosecution with a view to prove its case, examined as many as six witnesses, whereas respondent accused, in his statement recorded under Section 313 Cr.PC., denied case of .
the prosecution and claimed himself to be innocent.
4. Subsequently, learned Additional Sessions Judge, vide judgment dated 26.8.2016, acquitted the respondent-accused of charges framed against him under Sections 489-C of the IPC. Being aggrieved and dis-satisfied with the aforesaid judgment of acquittal recorded by the court below, appellant-State has approached this Court, by way of instant proceedings, seeking therein conviction of the respondent-accused, after setting aside the judgment of acquittal recorded by the court below.
5. Mr. M.L. Chauhan, learned Additional Advocate General, while inviting attention of this Court to the impugned judgment of acquittal recorded by the court below, vehemently argued that same is not sustainable in the eye of law as the same is not based upon the proper appreciation of the evidence and as such, same deserves to be quashed and set-aside. Mr. Chauhan, further contended that prosecution witnesses categorically deposed before the court below that fake currency notes were recovered from pocket of the respondent accused, who was unable to explain that how such fake currency came to his possession. While inviting attention of this Court to the statement of prosecution witnesses, Mr. Chauhan, made an attempt to persuade this Court to agree with his statement that there is total mis-reading, misappreciation and mis-construction of evidence led on record by the prosecution, which is/was sufficient to hold respondent accused guilty ::: Downloaded on - 10/11/2017 13:34:27 :::HCHP -4- of having committed offence punishable under Section 489-C of IPC. Mr. Chauhan, further contended that since photocopy of order Ext.PW6/F, passed by the SDM was placed before the Court below to prove on record .
that respondent accused was presented in the office of SDM and as such, no adverse inference, if any, could be drawn against the prosecution for not producing original document. Similarly, Mr. Chauhan while inviting attention of this Court to the statement of PW1 namely Ashok Kumar Bhardwaj i.e. Bank Manager, contended that once he categorically deposed before the court below that on 23.10.2009, police officials had come to the branch having an envelope containing currency notes with a request to verify the genuineness of the same, court below erred in concluding that no reliance, if any ,could be placed on the version of aforesaid witnesses for the reason that no written application, if any, made to bank officials, is/was placed on record by the prosecution to prove factum with regard to verification of currency notes, allegedly recovered from the respondent accused. With the aforesaid submissions, learned Additional Advocate General, prayed that respondent accused be convicted for having committed offence punishable under Section 489-C, after setting aside the judgment of acquittal recorded by the court below.
6. Ms. Ritika Jassal, learned counsel representing the respondent/accused while refuting the aforesaid submissions having been made by the learned Additional Advocate General supported the impugned judgment passed by the learned court below and vehemently contended that there is no illegality in the same, rather perusal of same suggests that ::: Downloaded on - 10/11/2017 13:34:27 :::HCHP -5- court below while ascertaining the correctness of charge framed against the respondent accused, dealt with each and every aspect of the matter very meticulously and as such, there is no scope of interference, whatsoever, by .
this Court. While inviting attention of this Court to the statement of PW2 i.e. Independent witness associated by the prosecution, to prove its case beyond reasonable doubt, Ms. Jassal, forcefully contended that sole independent witness namely Ranbir Singh, turned hostile and nowhere supported the case of the prosecution and as such, learned court below rightly acquitted the respondent accused of charge framed against him. Ms. Jassal further contended that challan filed by the investigating agency, under Section 173 Cr.PC, itself discloses the falsity in the case of the prosecution because there are so many loopholes, which ultimately led the court below to draw inference that story put forth by the prosecution is not trustworthy, rather same is concocted one. Ms. Jassal while inviting attention of this Court to the provisions contained under Section 489-C IPC, contended that to prove the guilt of the respondent accused and to bring him in the ambit of aforesaid section (489(c) IPC), it was incumbent upon the prosecution to prove intention of the respondent accused, to use fake currency allegedly recovered from his possession, but in the instant case, there is no evidence at all, adduced on record by the prosecution to prove intention of the respondent accused to use fake currency and as such, no case is made out against the respondent accused under Section 489-C of the IPC, and he has been rightly acquitted by the court below.
::: Downloaded on - 10/11/2017 13:34:27 :::HCHP -6-7. I have heard the learned counsel for the parties as well as carefully gone through the record.
8. Shri Ashok Kumar Bhardwaj, Branch Manager, State Bank of .
Patiala, Mehatpur, while appearing as PW1, deposed before the Court below that on 23.10.2009, some police officials came to the Branch, carrying with them envelope containing currency notes, with a request to verify the genuineness of the currency notes. Aforesaid witness further stated before the court below that he examined the currency notes and issued report Ex.PW1/A. He further deposed that three currency notes of Rs. 100/- Ext.P1 to P3, six notes of Rs. 50, Ext. P4 to P9, were found to be fake whereas three notes of Rs. 10/- Ext.P10 to P12, were found to be genuine. In his cross-examination, he categorically admitted that no written application was given by the police to him for verifying the genuineness of currency notes, but he further stated that he had examined certain currency notes on 23.10.2009.
9. It is quite apparent from the aforesaid statement made by this witness that no formal application was made by the police to the Bank for verifying the correctness and genuineness of the currency notes, meaning thereby, there is /was no record available with the Bank with regard to the issuance of report Ext.PW1/A.
10. PW2 namely Ranbir Singh i.e. sole independent witness associated by the prosecution to prove its case, also not supported the case of the prosecution. PW2, in his statement deposed that on 23.10.2009, police brought a person in their custody to the temple office, where he was searched on suspicion. As per this witness, police recovered the currency, ::: Downloaded on - 10/11/2017 13:34:27 :::HCHP -7- some of which were bearing same serial number. As per this witness, no document was prepared by the police at that juncture in his presence. This witness categorically stated before the court below that he cannot identify .
the person so searched by the police since a long time has elapsed and as such, this witness was declared hostile. But even cross examination conducted on this witness suggests that prosecution was unable to find anything contrary to what he stated in his examination in chief. In his cross examination, this witness denied the suggestion put to him that suspected person was searched on 22.10.2009, and stated that he does not remember, if police recovered mobile phone and synthetic leather purse from the respondent accused.
Though, he admitted his signature on memo Ext. PW2/A, but he feigned his ignorance whether police officials gave their own search before carrying out search of accused. In his cross-examination conducted by the learned counsel for the accused, this witness categorically admitted that his statement was not recorded on that day. If aforesaid version put forth by this witness is examined in light of version put forth by the complainant, who later on investigated the case, it creates doubt with regard to the authenticity and correctness of the story put forth by the prosecution.
11. PW6, I.O. Rajinder Sharma, in his statement stated that at about 6:30 pm, he reached the spot where he found respondent accused roaming and accordingly, on the basis of the suspicion, police brought him to the office of temple authorities. He further stated that accused was searched by him in the presence of the president namely Ranbir Singh (PW2) and Satish Kumar and currency notes were recovered. If the statement of PW2 is seen, there is ::: Downloaded on - 10/11/2017 13:34:27 :::HCHP -8- no mention of the second person namely Satish Kumar. PW2 stated that police brought the accused to the temple and thereafter, searched him in his presence. Most importantly, PW6 in his cross examination categorically stated .
that he apprehended the accused at about 10:30/11:00 pm, which statement of his, is totally contradictory to his version put forth in the examination-in-chief as well as statement of PW2. Similarly, PW6 in his statement stated that before conducting personal search of the accused, he gave his personal search to the accused but there is nothing in the statement of PW2 namely Ranbir Singh to corroborate the aforesaid version put forth by the I.O. (PW6). Apart from above, there is no memo, if any, of personal search given by the investigating officer before conducting the search of the accused. Aforesaid version with regard to the personal search has also not been corroborated by the other official witnesses.
12. PW3 H.C. Satish Kumar, in his statement feigned ignorance whether I.O. had given personal search before carrying out search of the respondent accused or not.
13. True it is that there can be minor variations in the statements of PW2 and PW3 with regard to the personal search of PW6 (I.O.), but there is no plausible explanation rendered on record, for not placing or preparing memo, which could be a definite piece of evidence to conclude that I.O.
had given his personal search before effecting search of the respondent-
accused.
14. If this case is examined from another angle, it emerge that as per FIR Ext.PW6/C, three persons were found roaming in suspicious condition ::: Downloaded on - 10/11/2017 13:34:27 :::HCHP -9- and as such, they were arrested under Section 41 (2) and 109 of Cr.PC, but interestingly, there is no mention, as such, with regard to the search of other two persons other than the accused Surya Parksah. As per record, FIR came .
to be registered in Police Station at about 7:30 hours on 23.10.2009, whereas as per own statement of PW6 (I.O.), he apprehended the accused at 10:30- -
11:00 pm on 23.10.2009. It is not understood that once as per own admission of the I.O., respondent accused was apprehended on 23.10.2009 at 10:30- 11:00 pm, how FIR could be recorded in Police Station at 7:30 pm on the same date. Prosecution also placed on record Ext.PW6/D i.e. report No. 21 entered at Police Station which further falsifies the story of the prosecution because as per report No.21, on 23.10.2009, information was received on 23.10.2009, in the morning at 5:50 am, perusal whereof suggests that approximately, 17 persons were enquired and since these three persons namely Chander Parkash, Purshottam Lal and Mahesh Kumar, were disclosing wrong names, they were arrested. As per report/record police recovered an amount of Rs. 600/- and they were produced before the SDM, but since there is/was no recovery memo placed on record by the prosecution to prove such recovery other than the Ext.PW6/F, i.e. photo copy, no reliance could be placed on the same by the court below. Interestingly, in the case at hand, this Court finds that there is no attempt as such, on the part of the prosecution to call for the record from the office of the SDM to prove the recovery of currency. Another witness to recovery memo namely HC Satish Kumar (PW3) in his statement has stated that on 22.10.2009, he was alongwith Sub-Inspector namely Rajinder Kumar Sharma (PW6) and during that period, 14-15 people were intercepted ::: Downloaded on - 10/11/2017 13:34:27 :::HCHP
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including the accused. He further stated that persons apprehended by the police were not disclosing their names correctly and as such, they were arrested under Section 41(2) and 109 of the IPC. As per this witness, police .
before arresting the accused carried out his search Near Peernigaha Temple in the presence of the Pardhan (PW2) namely Ranbir Singh, in whose presence mobile phone and some currency notes kept in purse, were recovered. Aforesaid version put forth by PW3 is totally contradictory to the statement of PW2, who stated that police brought the accused to the temple.
This witness in his cross-examination further stated that two other persons apprehended alongwith the accused, were also searched, but interestingly, neither there is any mention in this regard, in the statement of PW2 nor in the statement of PW6, which creates serious doubt with regard to the genuineness and correctness of the story put forth by the prosecution. This witness also stated that the accused was apprehended at around 10:00 to 11:00 pm and he cannot say whether personal search was given by the police to any other person before effecting recovery from the accused.
Similarly, this person feigned ignorance that accused was presented before the SDM or not, rather he self-stated that investigating officer might have presented him.
15. This Court after having carefully perused the version put forth by the prosecution witnesses sees no illegality and infirmity in the finding recorded by the court below because admittedly, no reliance could be placed on their versions being contradictory to each other. This Court sees no force in the contention of learned Additional Advocate General that court ::: Downloaded on - 10/11/2017 13:34:27 :::HCHP
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below while examining the guilt of the respondent accused failed to appreciate the evidence in its right perspective, rather this Court is fully convinced and satisfied that the court below appreciated the evidence in .
this right perspective and rightly not held the respondent accused guilty of having committed offence punishable under Section 489-C of the IPC.
16. By now it is well settled that in a criminal trial evidence of the eye witness requires a careful assessment and needs to be evaluated for its creditability. Hon'ble Apex Court has repeatedly held that since the fundamental aspect of criminal jurisprudence rests upon the well established principle that "no man is guilty until proved so", utmost caution is required to be exercised in dealing with the situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. Most importantly, Hon'ble Apex Court has held that there must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses. In nutshell, it can be said that evidence in criminal cases needs to be evaluated on touchstone of consistency. Reliance is placed on Judgment passed by the Hon'ble Apex Court in C. Magesh and Ors. v. State of Karnataka (2010) 5 SCC 645, wherein it has been held as under:-
"45. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasise, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Suraj Singh v. State of U.P., 2008 (11) SCR 286 has held:- (SCC p. 704, para 14) "14. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witness is held to be creditworthy. The probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation."::: Downloaded on - 10/11/2017 13:34:27 :::HCHP
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46. In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that "no man is guilty until proven so", hence utmost caution is required to be exercised in dealing with situations where there are multiple testimonies and equally large .
number of witnesses testifying before the court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses."
17. Leaving everything aside, provision as contained in the Section 498-C of IPC, suggests that it is/was incumbent upon the prosecution to prove intent of respondent-accused to use the fake currency allegedly recovered from his possession. In this regard, Section 489-C is reproduced herein below:-
"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"
In the case at hand, there is no evidence led on record by the prosecution to prove intention of the respondent-accused to use that fake currency, rather It is own case of the prosecution that on suspicion, respondent-accused was apprehended and later on his search, fake currency was recovered from his pocket. None of the prosecution witness including the I.O. (PW6) stated something specific with regard to the endeavor, if any, made on the part of the respondent accused, to use that fake currency and as such, this Court sees substantial force in the argument of Ms. Ritika Jassal, Advocate, representing the respondent-accused that no conviction could be recorded against the respondent accused under Section 489-C of IPC to use that fake currency.
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18. Reliance is placed on judgment passed by the Hon'ble Apex Court in case titled Umashankar v. State of Chhattisgarh, 2001 Supp(3) SCR 646, the relevant paras of the aforesaid judgment are reproduced herein .
below:-
"4. The gravamen of the charge against the appellant is that on May 25, 1990 at about 10 p.m. having purchased one kilo gram of mango costing Rs. 5/- he paid a fake currency-note of Rs. 100/- to P.W. 4 who doubted its genuineness. She showed it to P.Ws. 2 and 7 who also said that it was a fake currency-note. He was handed over to police who recovered 13 more such fake currency-notes from him. Further some papers, refills of different colours and scissors were also recovered from his house. On these facts charges were framed against him under Section 489A, 489B and 489C of I.P.C.
5. After considering the evidence on record the learned trial judge acquitted him of charge under Section 489A but found him guilty of charges under Sections 489B and 489C of I.P.C. and sentenced him for the periods noted above. On appeal the High Court confirmed the conviction but reduced the sentence, afore- mentioned.
6. The conviction of the appellant by the trial court as confirmed by the High Court is under Section 489B and Section 489C of I.P.C., which read as under:
"489-B. Using as genuine, forged or counterfeit currency-notes or bank-notes.-
Whoever sells to, or buys or receives from, any other person or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
489-C. 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."
7. Sections 489-A to 489-E deal with various economic offences in respect of forged or counterfeit currency-note or bank-notes. The ::: Downloaded on - 10/11/2017 13:34:27 :::HCHP
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object of Legislature in enacting these provisions is not only to protect the economy of the country but also to provide adequate protection to currency-notes and bank-notes. The currency-notes are, inspite of growing accustomedness to the credit cards system, still the backbone of the commercial transactions by multitudes in our country. But these provisions are not meant to .
punish unwary possessors or users.
8. A perusal of the provisions, extracted above, shows that mens rea of offences under Sections 489B and 489C is, "knowing or having reason to believe the currency-notes or bank-notes are forged or counterfeit". Without the afore-mentioned mens rea selling, buying or receiving from another person or otherwise trafficking in or using as genuine forged or counterfeit currency- notes or bank-notes, is not enough to constitute offence under Section 489B of I.P.C. So also possessing or even intending to use any forged or counterfeit currency-notes or bank-notes is not sufficient to make out a case under Section 489C in the absence of the mens rea, noted above. No material is brought on record by the prosecution to show that the appellant had the requisite mens rea. The High Court, however, completely missed this aspect The learned trial judge on the basis of the evidence of P.W. 2, P.W. 4 and P.W. 7 that they were able to make out that currency note alleged to have been given to P.W. 4, was fake "presumed" such a mens rea. On the date of the incident the appellant was said to be 18 years old student. On the facts of this case the presumption drawn by the trial court is not warranted under Section 4 of the Evidence Act. Further it is also not shown that any specific question with regard to the currency-noted being fake on counterfeit was put to the appellant in his examination under Section 313 of Criminal Procedure Code. On these facts we have no option but to hold that the charges framed under Sections 489B and 489C are not proved. We, therefore, set aside the conviction and sentence passed on the appellant under Sections 489B and 489C of I.P.C. and acquit him of the said charges [see: M. Mammutti Vs. State of Karnataka ]."AIR (1979) SC 1705."
It is quite apparent from the aforesaid exposition of law that without there being mens-rea, selling, buying or receiving from another person or otherwise trafficking in or using as genuine forged or counterfeit currency-notes or bank-
notes, is not enough to constitute offence under Section 489 of I.P.C. Similarly, possessing or even intending to use any forged or counterfeit currency-notes or bank-notes is not sufficient to make out a case under Section 489C in the absence of the mens rea. In the case at hand, there is no evidence led on record by the prosecution to prove/show that the respondent accused had ::: Downloaded on - 10/11/2017 13:34:27 :::HCHP
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requisite mens rea and as such, no conviction could be recorded against the respondent accused under Section 489(c).
19. Consequently, in view of the detailed discussion made herein .
above as well as law laid down by the Hon'ble Apex Court, this Court sees no valid reason to interfere with the well reasoned judgment passed by the learned court below, which otherwise appears to be based upon the proper appreciation of evidence adduced on record and the same is accordingly upheld. Accordingly, the appeal is dismissed being devoid of any merits.
31st October, 2017
manjit
r to (Sandeep Sharma),
Judge
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