Gujarat High Court
Mohamad Badshah Mohamad Hafijudin @ ... vs State Of Gujarat on 24 February, 2018
Author: A.J. Shastri
Bench: A.J. Shastri
R/CR.A/210/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 210 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J. SHASTRI
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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MOHAMAD BADSHAH MOHAMAD HAFIJUDIN @ HAKU SHAIKH
Versus
STATE OF GUJARAT
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Appearance:
HCLS COMMITTEE(4998) for the PETITIONER(s) No. 1,2
MR MANRAJ A BAROT(6224) for the PETITIONER(s) No. 1,2
CHINTAN DAVE, APP for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 24/02/2018
ORAL JUDGMENT
1. The present Criminal Appeal is filed under Section 374 of the Cr.P.C., challenging the legality and validity of the judgment and order of conviction and sentence, dated 20.12.2013, by the learned Additional Sessions Page 1 of 28 R/CR.A/210/2014 JUDGMENT Judge, Court No.5, Ahmedabad city, in Sessions Case No.45 of 2013.
2. The case of the prosecution is that both the appellants accused had come to Ahmedabad city in Bhadra area, near Bank of India branch at a local street market and were encashing the notes of Rs.500/- and Rs.1000/- from the street vendors by purchasing very small items and taking change. In the course of such activity, on 21.1.2012 at about 11.00 O'clock, when the appellants accused came to the complainant's shop, they purchased a T-shirt for Rs.60/- and gave a note of Rs.1000/- and requested to give change. Since the complainant was a small vendor, he was not having change of Rs.1000/-. With the result, he requested to adjoining shop owner Anishbhai for the change and there it was found that this note of Rs.1000/- was found to be fake and counterfeit currency note. As a result of this, both these appellants accused were taken to Karanj Police Station and it was found from both the accused notes of Rs.1000/-, 23 in number. Later on, both the accused were taken to the hotel where they stayed at City Plaza Hotel, Ahmedabad and from Room No.206, from accused No.1, further counterfeit 25 notes of Rs.1000/- denomination was found and 102 notes of Rs.500/- and from appellant No.2, 18 notes of Rs.1000/- and 93 Page 2 of 28 R/CR.A/210/2014 JUDGMENT notes of Rs.5000/- were found. The modes operandi of these appellants accused was that by purchasing small items, they were taking change of these counterfeit notes from small vendors. On account of this conduct, an offence was registered before the Karanj Police Station being I-C.R.No.5 of 2012 for the offences punishable under Section 489A and B of the IPC. Pursuant to the complaint, as per the orders of the Police Commissioner, Ahmedabad, further investigation was given to SOG and the SOG executed a panchnama, raided the City Plaza Hotel, obtained opinion of the Reserve Bank Officer about the fake currency notes which were found from the physical possession. Over and above that, FSL Officer's report had also been taken and various statements of street vendors were taken and after completion of investigation, it was found that these appellants accused along with one another absconding accused, have committed an offence as alleged. Thereafter, a charge-sheet came to be submitted in the court of learned Metropolitan Magistrate, Court No.11, Ahmedabad. Pursuant to which, a criminal case was registered as Criminal Case No.128 of 2012.
2.1 Pursuant to registration of case against the appellants accused, a plea was recorded at Exh.3 and Exh.4 of these appellants accused in which Page 3 of 28 R/CR.A/210/2014 JUDGMENT they have denied the offence being committed. As a result of this, since the offence was triable by the court of sessions, the same was committed the sessions court in exercise of power under Section 209 of the Cr.P.C. and pursuant to such committal, the case was registered before the City Civil and Sessions Curt, Ahmedabad as Sessions Case No.45 of 2013 in which at Exh.1, a specific charge has been framed. The same was read over to the appellants accused and after recording their plea at Exh.2 and Exh.3, the case was put up for further adjudication.
2.2 In response to the said process, the prosecution was given an opportunity to lead the evidence which have been led at length by the prosecution and also an opportunity was given to the appellants accused, whose further statements have been recorded under Section 313 of the Cr.P.C. in which also since the appellants accused have reiterated that they have not committed any offence, the case was ultimately put up for final adjudication.
2.3 The prosecution, as stated above, led exhaustive evidence documentary as well as ocular, 17 in numbers. The trial court, after careful consideration of the evidence at length and the stand taken by the prosecution and from Page 4 of 28 R/CR.A/210/2014 JUDGMENT reading further statement, came to the conclusion that appellants accused are guilty of an offence punishable under Section 489(B), inflicted an sentence of 10 years' RI and so far as Section 489(C) is concerned, 5 years' RI and a fine. Following is the sentence awarded to both the appellants accused on 20.12.2013 which reads as under:
"Accused No.1 - Mohmad Badshah Mohmad Hafizuddin @ Haku Shaikh and accused No.2 - Mohmad Rizaulhak Mohmad Zoharali Shaikh are convicted for the offence punishable under Section 489(B) and sentenced to suffer 10 years' RI and fine of Rs.10,000/- each and in default, to undergo one year SI.
Further, accused No.1 - Mohmad Badshah Mohmad Hafizuddin @ Haku Shaikh and accused No.2 - Mohmad Rizaulhak Mohmad Zoharali Shaikh are convicted for the offence punishable under Section 489(C) and sentenced to suffer 5 years' RI and fine of Rs.5000/- each and in default, to undergo six months' SI.
The sentence already undergone by the accused as an under-trial prisoner be given set-off as per Section 428 of the Cr.P.C.Page 5 of 28
R/CR.A/210/2014 JUDGMENT
Since the accused - Mohmad Akhtar Mohmad
Nazir is absconding, the muddamal be kept as it is.
The aforesaid sentence is ordered to run concurrently. Copy of the judgment be given to the accused free of cost.
Pronounced in the open Court on 20th December,2014."
2.4 It is this judgment and order of conviction and sentence is the made the subject matter of present Criminal Appeal. This Criminal Appeal appears to have been admitted on 19.2.2014 and then, has come up for consideration finally before this Court on 24.2.2018 in which Mr.Manraj A. Barot, learned advocate has represented the appellants accused and Mr.Chitan Dave, learned APP ahs represented the State authority.
3. Mr.Manraj A. Barot, learned advocate appearing for the appellants accused, has vehemently contended that present appellants are innocent persons and have wrongly been arraigned in the prosecution simply because they appears to be of outside country. It has also been contended that on the contrary, the appellants accused did not know that they were carrying counterfeit Page 6 of 28 R/CR.A/210/2014 JUDGMENT notes and the element of knowledge is of vital consideration in passing an order of sentence. Hence, the prosecution having failed to establish the knowledge aspect in the entire case, the order of conviction based upon inference and surmises deserves to be quashed and set aside. Mr.Barot, learned advocate, has further contended that in fact, the appellants accused were also having a business of clothes at Jharkhand and were not aware about the fact of such fake currency. On the contrary, they came here to purchase the readymade garments so as to enable them to carry out the business at parent place from where they came. It has been contended that had there been any knowledge about counterfeit notes, they could not have made any attempt to encash from the small vendors.
3.1 Mr.Manraj A. Barot, learned advocate, has further contended that no doubt, the appellants accused have been identified by the witness but, at the same time, majority panchas have not supported the case of the prosecution. It was also contended that before nabbing the appellants accused and making out a case against them, proper verification from the concerned bank ought to have been made whether the notes were counterfeit or genuine one. Without that, this entire process could not have been undertaken.
Page 7 of 28R/CR.A/210/2014 JUDGMENT Even there is no cogent material available on record to indicate specifically that there is a mens rea on the part of appellants accused. Simply because an amount of Rs.26,960/- has been seized, no inference can be drawn about the guilt on the accused. It might have happened that these appellants accused also must have received some counterfeit notes from the other persons. It has been contended that the prosecution has to establish beyond reasonable doubt the case against the appellants accused. Mere suspicion or mere possession of the appellants accused would not constitute an offence, as alleged. As a result of this, since there is no specific conclusion derived by the trial court on the basis of inference and surmises, no offence can be said to have been established. As a result of this, the order of sentence is not sustainable in the eye of law.
3.2 Mr.Manraj A. Barot, learned advocate, has contended that even if ultimately it is found that appellants accused were possessed of counterfeit notes but, then looking the cooperation which they have shown to the prosecution agency and the jail conduct which is proper and satisfactory, the punishment which has been inflicted upon, deserves to be reduced and as an alternative request, Mr.Barot, learned Page 8 of 28 R/CR.A/210/2014 JUDGMENT advocate, has requested the Court to treat the sentence undergone as sufficient sentence for the purpose of alleged offence which is said to have been established. Hence, Mr.Barot, learned advocate, has reiterated that at least so far as quantum aspect is concerned, the Court may consider in light of the decision delivered by the Apex Court which are reported in AIR 2001 SC 3074, 2017 JX SC 457 AND 2016 (8) SCALE 58 and ultimately requested the Court to see that since the sufficient period of almost 5 years and 9 months approximately has been undergone by the appellants accused, same be treated as sufficient sentence for the purpose of conviction for the aforesaid offence. No other submissions have been made.
4. To meet with the stand taken by learned advocate for the appellants, Mr.Chintan Dave, learned APP appearing for the State, has vehemently contended that these appellants accused have been found to circulate these notes in the market and knowing fully well that they were armed with notes of high denomination, they were purchasing deliberately very small articles from the small street vendors and thereby, were making an attempt to circulate the notes in the market. It has also been contended that these appellants accused have been found in conscious Page 9 of 28 R/CR.A/210/2014 JUDGMENT possession of these counterfeit notes to a large extent and during the course of investigation, from the hotel, further sizable amount of such kind of notes have been nabbed. As a result of this, the appellants accused have committed serious offence of circulating counterfeit notes in the market which is a serious economic offence and hence, no leniency be shown.
4.1 Mr.Chintan Dave, learned APP, has further contended that prosecution has established its case beyond reasonable doubt, not only be seizing these counterfeit notes from the appellants but, have also examined through FSL as well as RBI that these notes have been found to be counterfeit notes. It has also been contended that while proving the case, the testimony has also been examined by the trial court and simply because some of the panchas have chosen not to support the case of the prosecution, for such an extraneous reason, the case cannot be said to be not proved. On the contrary, the panchas have specifically admitted their signatures on the panchnama which has been carried out in their presence. As a result of this, learned APP has submitted that since the signature has been admitted and simply because some of the panchas have not supported in their testimony, the case of prosecution cannot be said to be found not Page 10 of 28 R/CR.A/210/2014 JUDGMENT proved.
4.2 Learned APP has further contended that it is a settled position of law that no doubt, it is not in dispute that prosecution has to establish the case beyond reasonable doubt. But that does not mean that prosecution has to prove beyond shadow of doubt. Here, substantial material is clearly pointing figure towards the appellants accused, who have been found with number of counterfeit notes, the order of conviction has been passed in just and proper manner.
4.3 Learned APP has further contended that on the contrary, when the chance was given to the appellants accused to clarify incriminating circumstances which may be put before them in a further statement recorded under Section 313 of the Cr.P.C., except bare denial, nothing concrete is emerging and as a result of this, it is not possible to believe that prosecution has not established the case.
4.4 Learned APP has further contended that it is not that for the first time these appellants accused have been nabbed. On the contrary, they were having previous offence of similar nature also and since the knowledge has been sufficiently culled out from the evidence of Page 11 of 28 R/CR.A/210/2014 JUDGMENT prosecution, it is not correct to contend by the appellants that knowledge is not established. On the contrary, while arriving at a conclusion of guilt, the trial court has evaluated the entire evidence and found specifically that case has been established. As a result of this, such a reasoned order of conviction may not be disturbed, in the interest of justice, especially when this kind of offences are adversely affecting the economy of the country. Learned APP has further contended that apparently, it was found that these counterfeit notes are not genuine and for that purpose, the relevant evidence in the form of FSL and the concerned officers have been led before the trial court and on the basis of such evaluation, the trial court has found that there is a substance in the case of prosecution which has established the case against the appellants accused. Learned APP has submitted that valid reasons have been assigned by the trial court in arriving at a finding which in no circumstance possible to be treated as perverse, in any manner.
5. To meet with the stand taken by the learned APP for the State, as a part of rejoinder, Mr.Barot, learned advocate for the appellants, has submitted that looking to the age of the appellants accused and looking to the fact that Page 12 of 28 R/CR.A/210/2014 JUDGMENT these appellants accused are coming from lower strata of family and further, the seizure at hotel has not been so cogently established, the sentence which has been undergone of more than 5 years to be treated as sufficient sentence for the purpose of offence. This being the position, ultimate request is made to reduce the sentence or treat this sentence which has been undergone so far as sufficient sentence and release the appellants accused, forthwith.
6. In counter to this ultimate request made by learned advocate for the appellants, learned APP has submitted that the case of the prosecution has been established and strongly supported by the testimony of complainant Yasin as well as another vendor Anishbhai, who brought these appellants accused before the Karanj Police Station. It has also been established that nearly 261 counterfeit notes found from the appellants accused and it is also a case established that this modus operandi of the appellants accused to encash this amount as against a very small purchase of articles from the small vendors and there was a mens rea and specific knowledge to see that as fast as possible, these counterfeit notes can be circulated in the market. Even the panchas have also supported the case by admitting their signatures and there is a clear support Page 13 of 28 R/CR.A/210/2014 JUDGMENT from the testimony of FSL officer and the report as well as the officer of the RBI and, therefore, when such a substantial support is available with the prosecution, there is hardly any circumstance to be contended that case has not been established. In fact, a clear conscious possession is established from record of the appellants accused looking to the sizable number of notes and the trial court has properly dealt with the same. These appellants accused were from Jharkhand and were having a tendency to pick up small vendors for encashing such counterfeit notes. Hence, when such is the situation established on record, learned APP has submitted that looking to the sentencing policy, this sentence which has been inflicted upon is a proper and valid sentence and the same cannot be said to be disproportionate in any manner. Hence, the learned APP has ultimately requested the Court to dismiss the present criminal appeal.
7. Having heard learned advocates appearing for the respective parties and having gone through the material on record, this being a criminal conviction appeal, detailed independent examination of evidence is expedient so as to ensure that whether any error is committed by the trial court or not in passing an order of conviction. Hence, the detailed analysis even Page 14 of 28 R/CR.A/210/2014 JUDGMENT independently is made by this Court which is emerging following situation :
(1) First of all, on 16.5.2013, a specific charge of offence punishable under Section K & G read with Section 114 of the IPC, in clear terms, was framed against the appellants accused in which it is noticed that the appellants were found with 261 counterfeit notes of Rs.500/- and Rs.1000/-
denomination. With a view to establish this charge, the prosecution has, first of all, examined PW-1 - Yasin Abdul Hafiz Saiyed at Exh.9, who happens to be the complainant. This witness has clearly narrated and supported the case of the prosecution by deposing that on 21.1.2012 at about 11.12 a.m., two persons, namely, the appellants accused have come, purchased a T-shirt of Rs.60/- and then, gave note of Rs.1000/- and demanded change. Since such cash was not available with him, the complainant requested adjacent vendor - Anishbhai to give the change of Rs.1000/-. Now this Anishbhai has found that the note which has been given was having initial number 786 and all the similar number another note was also found on apparent look at such note and has also found that wire inside the note is not of regular form. As a result of this, both this complainant and Anishbahi took these appellants to Karanj Police Station and Page 15 of 28 R/CR.A/210/2014 JUDGMENT thereafter, upon specific identification and the other process of investigation, these appellants accused have been found to have committed an offence. In cross-examination, this complainant has fully supported the case of the prosecution to an extent but, has deposed truthfully that further notes which have been found from the hotel, to which this complainant was not having knowledge. This witness has clearly asserted that there is no personal knowledge with respect to this and, therefore, from entire reading of this testimony, it is emerging that this witness is a truthful witness.
(2) The prosecution has also examined PW-2 - Nazir Razak Shaikh at Exh.11, who came to be declared as hostile. A bare reading of this deposition has clearly established that he has specifically admitted his signature. The cross- examination is indicating that from the hotel also, several notes in large number have been found and in his presence, when these appellants accused were confronted by question, they have admitted that they were aware about the fact that these currency notes were counterfeit notes and then, process of investigation has been concluded.
(3) The prosecution has then examined PW-3 -
Page 16 of 28R/CR.A/210/2014 JUDGMENT Devendra Amrutlal Chavada at Exh14. Nothing much turns on it. But here also the signature has not been disputed. On the contrary, it is specifically admitted that on the panchnama at Mark-12, the signature is that of this witness and, therefore, even if these two panchas have turned hostile, their overall testimony of-course cannot be relied upon but, a reference can be made that signatures have not been disputed and in cross-examination, the prosecution has got some support.
(4) One another PW-4 - Anish Abdulkadar Memon is examined at Exh.17. This witness is the person who is carrying out his small business just adjacent to the complainant. When the complainant came to this witness for the purpose of taking change, it was apparently noticed that there was no mention about 'RBI'. Later on, upon nabbing the appellants accused, it was noticed that from the person of these appellants, some 15 to 16 notes have been found of such a nature. In cross- examination, this witness has specifically supported the case of the prosecution and has conveyed that when the notes were recovered, memo, in turn, was given. So, in substance, the factum of nabbing the accused and the conscious possession appears to have been established by this witness in support of the case of the Page 17 of 28 R/CR.A/210/2014 JUDGMENT prosecution.
(5) Yet another PW-5 - Almin Bachubhai Panjwani at Exh.18 has also been examined. Though this witness has been declared as hostile but, the fact that prosecution gets some support from cross-examination in which from hotel, SOG (Crime), Ahmedabad has nabbed 195 notes of denomination of Rs.500/-, 43 notes of denomination of Rs.1000/- in addition to what was earlier seized from the personal custody. Now this witness has not disputed his signature and has identified his signature. As a result of this, simply because this witness has turned hostile, the prosecution case cannot be said to be weaken. Similar is the case with respect of testimony of PW-6 - Harun Musa Memon, who is examined at Exh.20 in which also similar is the position. So far as PW-7 - Abdulkhalik Abdul Rajak Shaikh, who is examined at Exh.25. Though this witness has been declared as hostile but, he is also not disputing his signature.
(6) So far as other material witnesses are concerned, one of which is PW-14 - Mumtazhusen Usmangani Malik, who is examined at Exh.37. This witness, at the relevant time, was serving in the RBI. In April,2012 he has retired and at a relevant point of time, when SOG (Crime) branch Page 18 of 28 R/CR.A/210/2014 JUDGMENT came along with these notes, this witness has, as per the procedure, tested and analyzed these notes by ultra violate lamp and on the basis of his expert opinion, has found that the notes were counterfeit and written opinion was given to SOG (Crime). The cross-examination of this witness has also indicated that this process of examination which has taken place by him is recorded in the bank diary and at the time when this checking process was going on, one another branch employee - Mr.N.V.Patel was along with him and after checking, the report has been made. So, in substance, this material witness has established that the notices which were seized, were counterfeit notes.
(7) Yet another witness examined by the prosecution is PW-15 - Miraben Kapilbhai Patel, at Exh.40. This witness is an employee in FSL, serving since about 25 years and since last 5 years continuously he is discharging his duties as Scientific Officer. On 6.2.2012, two parcels in a sealed cover brought before him and after opening the same, the notes which were brought to the notice of 238 notes of Rs.500/- and additionally Rs.1000/- and upon analyzing the same, it was reported specifically at length and found that these notes are fake notes. At the time when analysis has taken place, the paper of Page 19 of 28 R/CR.A/210/2014 JUDGMENT the note, printing of the note, ink colour has also been evaluated and after such detailed examination, it was categorically found by this witness that those notes which were found from conscious possession of these appellants accused are fake currency notes and to that effect, a detailed report has been placed with police officer. In cross-examination, this witness has also maintained such stand which is substantially supported the case of the prosecution.
8. So, on the basis of this overall material on record, a clear co-relation has been found in the documentary evidence as well as in the ocular evidence and to a substantial extent, the prosecution has established the possession of these notes with the appellants accused. These notes having been found counterfeit and fake currency notes and the material witnesses have established that an attempt was made to change the notes by purchasing a very small articles from the market and thereto, from the small vendors. The overall consideration of these evidences is analyzing a situation that a clear attempt appears to have been made which has rightly been appreciated by the trial court.
9. Now to examine in the context of defence being raised, if perusal of further statement of Page 20 of 28 R/CR.A/210/2014 JUDGMENT accused to be looked into which is recorded by virtue of Section 313 of the Cr.P.C., it would make it clear that except bare denial, there seem to be nothing distinguishable. Now this is the situation which is emerging clearly from the record and there appears to be no cogent defence which can attribute upon prosecution that they have been wrongly roped into. The entire detailed further statement is indicating nothing contrary to what has been established by the prosecution.
10. From the aforesaid analysis of evidence if the conclusion which has been arrived at to be looked into, the trial court has assigned cogent reasons while passing an order of conviction. From Para.36, the independent analysis has been undertaken and it was found specifically that there is no explanation of whatsoever nature coming out from the defence which ultimately lead to a situation that case is not established beyond reasonable doubt. On the contrary, clear conclusion is arrived at by the trial court that fake currency in large number is found from the possession of the present appellants accused and some small articles which have been purchased from the market also found from the hotel room which indicates that a systematic attempt on the part of appellants accused and the FSL analyst and officer of the RBI have categorically stated Page 21 of 28 R/CR.A/210/2014 JUDGMENT that these notes which have been found are fake notes. The trial court on overall view of the evidence on record has clearly opined in Para.58 that offence is established against the appellants accused and the prosecution has been able to establish the case beyond reasonable doubt. As a result of which, a judgment and order dated 23.12.2013 is passed by the trial court. Additionally, some of the notes have been found to be genuine but, in a very small numbers and, therefore, simply because the other notes were found to be genuine, it cannot be presumed that large number of notes which are undisputedly found from the custody as fake currency notes can be ignored and that has rightly been dealt with by the trial court.
11. As stated earlier, one of the contentions which has been raised is that some of the witnesses have not supported the case of prosecution. But overall analysis of evidence is indicating that only some of the panchas have not supported the case of prosecution. Nonetheless, these panchas, who have been declared as hostile have admitted their signature on the respective panchnamas, have undisputedly stated that they have signed the panchnamas and, therefore, simply because some of the facts have not been supported by them, the entire prosecution case cannot be Page 22 of 28 R/CR.A/210/2014 JUDGMENT allowed to be weakened. The Division Bench of this Court in case of Vahaji Ravaji Thakore vs. State of Gujarat reported in 2004 (1) GLR 777 has taken the view that simply because panchas have turned hostile, the entire case of prosecution cannot be disbelieved and such observations since relevant, more particularly paras:34 and 35, are reproduced hereinafter :
"34. Same type of view has been taken by the Supreme Court in case of Mohd. Aslam v. State of Maharashtra, reported in 2001 (9) SCC 362. It is held that "evidence of police officer effecting recovery could not stand vitiated by reason of panch witnesses supporting the evidence turning hostile.
35. In view of aforesaid legal position, we are of considered view that merely because the panch witnesses do not support the case of the prosecution, the case of the prosecution need not be thrown over-
board as unreliable. It must be realised that the phenomenon of panch witnesses turning hostile to the prosecution is not unknown and is ever on the increase. It needs hardly to be emphasised that the decision of a case does not depend solely on the question whether the panch witnesses support the prosecution or turn their back on it. If the decision of the case were to depend solely on the testimony of panch witnesses regardless of the evidence of independent witnesses, in theory, it would be giving a right of veto to the panchas so far as the question of culpability of an accused is concerned. If the evidence of police officer is Page 23 of 28 R/CR.A/210/2014 JUDGMENT otherwise found to be true and dependable, judicial pragmatism requires that merely because the panchas do not support, it should not be made a ground to discard his evidence."
12. In addition to this, it is settled position of law that prosecution, no doubt, has a responsibility to prove the case beyond reasonable doubt but, that responsibility of proving the case beyond reasonable doubt cannot be stretched to the extent that prosecution has to prove beyond the shadow of doubt and this principle of law has been enunciated by the Apex Court in a recent decision in case of Iqbal Moosa Patel vs. State of Gujarat, relevant observations of which deserve to be quoted hereinafter :
"23. It is true that the prosecution is required to establish its case beyond a reasonable doubt, but that does not mean that the degree of proof must be beyond a shadow of doubt. The principle as to what degree of proof is required is stated by Lord Denning in his inimitable style in Miller v. Minister of Pensions (1947) 2 ALL ER 272:
"... ... That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote Page 24 of 28 R/CR.A/210/2014 JUDGMENT possibility in his favour which can be dismissed with sentence `of course, it is possible but not in the least probable,' the case is proved beyond reasonable doubt...."
"88. It is true that under our existing jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man. Smelling doubts for the sake of giving benefit of doubt is not the law of the land."
24. Reference may also be made to the decision of this Court in Sucha Singh & Anr. v. State of Punjab (2003) 7 SCC 643 where this Court has reiterated the principle in the following words:
".......Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh AIR 1990 SC 209). Prosecution is not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is Page 25 of 28 R/CR.A/210/2014 JUDGMENT too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish."
13. In the context of aforesaid proposition, it is emerging from the record that complainant and another witness - Anishbhai have specifically supported the case of prosecution. It is also established that notes which have been found from the possession of the appellants accused have been certified to be fake notes. This fake notes' report has been part of the record. The same has been substantiated and proved by examining the Officers of the FSL as well as RBI and, therefore, substantial stand of the prosecution has been clearly established on record which has rightly been appreciated by the trial court. As a result of this, this is a case of using fake note and circulating the same in the market and the charge which has been levelled is specifically established.
14. Now, on the alternative submission which has been made that since the appellants have undergone 5 years and 9 months practically and treat this sentence as adequate sentence and release the appellants accused by treating the Page 26 of 28 R/CR.A/210/2014 JUDGMENT same as undergone, this Court is of the opinion that a serious offence is committed which is adversely affecting the economy of the country. On account of this seriousness, the Statute has provided adequate sentence and, therefore, wisdom of Legislature contained in the Statute cannot be overboard by the Court and the deterrence of law has to be maintained which is rather the duty of the Court in the present structure of society. Keeping this principle in mind, the sentencing policy is analyzed by the Court in the recent time, Court is of the opinion not to interfere in the present appeal.
15. The Apex Court has, in case of Maheshbhai Jivanbhai @ Zinabhai Jamod v. State of Gujarat, reported in 2016 (0) AIJEL-SC 59151, dealt with a situation in which the Apex Court has reduced the sentence and same is the case with yet another decision delivered by the Apex Court in case of Shaikh Mustafa v. State of Maharashtra, reported in 2017 (0) AIJEL-SC 60475. However, it is a settled position of law that slight change in the fact and one additional factor may change the complexion in applying the principle of precedent and, therefore, considering the facts which are emerging from the record, this Court found that overall observations about reduction of sentence or to be treated as undergone are in the context Page 27 of 28 R/CR.A/210/2014 JUDGMENT of different set of circumstance. Keeping in view the peculiar set of those cases and considering the factual background of present case on hand, this Court is of the opinion that present Criminal Appeal being devoid of merit, deserves to be dismissed.
16. In view of overall analysis and material on record and in view of the relevant observations made by the aforesaid decisions, this Court is of the considered opinion that looking to the seriousness of offence, the alternative submission made by learned advocate for the appellants is not possible to be accepted.
17. In view of the above, the present appeal stands dismissed. Record and Proceedings, if any, be sent back to the trial court concerned, forthwith.
(A.J. SHASTRI, J) V.J. SATWARA Page 28 of 28