Calcutta High Court (Appellete Side)
Anukul Sarkar vs The State Of West Bengal on 25 August, 2015
Author: Indrajit Chatterjee
Bench: Indrajit Chatterjee
,IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION Present : The Hon'ble Justice Indrajit Chatterjee C.R.A. 55 of 2010 Anukul Sarkar Versus The State of West Bengal For the appellant : Mr. Aslam Khan, Mr. Dipankar Mahato.
For the State : Mr. Anjan Dutta.
Heard on : 20-08-2015
Judgment on : 25-08-2015
Indrajit Chatterjee, J.- This Court is hearing this appeal as against the judgment and order of conviction dated 19th December, 2009 and 21st December, 2009 respectively passed by the learned Additional Sessions Judge, Fast Track Court-I, Dinhata, Cooch Behar, in Sessions Trial No. 2(XI) of 2006 arising out of Sessions Case No.179 of 2006 in which the present appellant was convicted in respect of both the charges punishable under Sections 489B and 489C of the Indian Penal Code (hereinafter called as the said Code).
The imprisonment, which the learned Court awarded, is stated below:
For Section 489B rigorous imprisonment for four years with fine of Rs.5000/-, in default to suffer rigorous imprisonment for three months;
For Section 489C rigorous imprisonment for four years with fine of Rs.3000/-, in default to suffer rigorous imprisonment for three months.
Section 428 of Cr.P.C. was made applicable and it was also ordered that both the sentences would run concurrently.
The case as unfolded at the time of trial can be stated in brief thus. On 05-08-2005, S.I. Prabir Biswas of Dinhata P.S. (P.W.4) received a source information that two persons with a violet colour Bajaj C.T. 100 motor cycle without any registration number would be near Burirhat Bazar with fake Indian currency note and to work for source information, he left the police station after making a G.D. Entry being No. 265 dated 5-8-2005 at 12-15 p.m. and proceeded to Burirhat Bazar along with six other police men in three motor cycles. The police party spotted the motor cycle which matched with the description as given by the source. Two persons were riding the said motor cycle and seeing the police party, they started fleeing away and after a hot chase the motor cycle was apprehended on the village road at Purba Vulki in front of the house of Sudhir Adhikary (P.W.2). The P.W.2 disclosed his identity and told the accused persons as to their right to get him searched before he started searching the accused persons. On search which was done in presence of the independent witnesses, i.e., P.W.1 and P.W.6, from the possession of the present appellant, Anukul Sarkar, five suspected fake Indian currency notes (hereinafter called as FICN) were recovered all of 2BW series. The notes were wrapped up in a Bengali newspaper. Admittedly, no label was put on the notes. Thereafter, relying on the statement of the present convict-appellant, another Sankar Dey of Alipurduar was arrested. This Court is not going to consider that episode that is during the trial that Sankar Dey absconded and the case had to be filed for the present as against the said accused after he was declared as proclaimed offender.
Seizure was made in respect of those five "FICNs" including that Bengali newspaper and also that violet colour Bajaj C.T. 100 motor cycle without any registration number. The said seizure list was marked as Ext.2. Both the accused persons were arrested and were taken to the police station and P.W.4 being the de facto complainant lodged one written complaint disclosing the incident to the Inspector-in-Charge, Dinhata, District: Cooch Behar giving rise to Dinhata P.S. Case No. 201 of 2005 dated 5-8-2005 under Sections 489B and 489C read with Section 34 of the said Code. The matter was investigated by P.W.7, Joydeep Modak. During the course of investigation, he forwarded this "FICNs" including the other "FICNs" seized from the absconding accused to the expert for opinion as regards those suspected Bank notes and the opinion was received which was marked as Ext.7 under Section 292 of the Cr.P.C. The case ended in charge sheet against the three accused persons. The accused no.1 being the present appellant one accused was acquitted and other accused absconded. The case was committed to the Court of Sessions and the Sessions Case referred to above was registered and the case was transferred to the learned Additional Sessions Judge, Fast Track Court-I, Dinhata and Sessions Trial No. 2(XI) 2006 was registered. After charge was framed against all the three accused persons in respect of the offences punishable under Section 489B and 489C of the said Code, accused persons pleaded not guilty and claimed to be tried.
I have already said that accused no.3, Sankar Dey, absconded. Accused No.2, Dulal Barman, was acquitted and the present accused was convicted and I have already noted the sentence which was awarded by the learned Trial Court.
Before the learned Trial Court as many as 7 witnesses were examined and other documents were marked as Exbts including the report of the expert, seizure list and rough sketch map etc. The defence did not adduce any oral or documentary evidence and made out a case of false implication on the ground that the police force was pressurized by the Superintendent of Police, Cooch Behar and they had falsely registered the case against the accused persons to fill up the quota and further with the source of the police party on enmity with the accused persons. The present convict- appellant was examined under Section 313 of Cr.P.C. and he denied the entire incident.
It may be mentioned that it was the case of the prosecution that Dulal Barman was driving the motor cycle and this convict-appellant was pliant rider.
It was argued on behalf of the defence that both the seizure list witnesses differed with the P.W.s who are all policemen regarding the seizure of the "FICNs" allegedly from the possession of the present appellant that except these two public witnesses, the other witnesses are all policemen who cannot be believed in such a case. He also submitted by taking me to the evidence of P.W.4 that when the accused persons were first seen, they were at Burirhat Bazar and then why the police party did not raise hue and cry to attract the businessmen of that area to apprehend the accused persons and that why no witness was cited by the prosecution from that Bazar area as regards the evidence of P.W.5. He submitted that this witness did not mention as to the chasing of the accused persons by the policemen. He took me through the evidence of P.W.6 to show that as per his evidence the seizure was made at Burirhat Bazar police camp and it took place at about 1-00 p.m. whereas as per the evidence of P.W.4, the seizure was made about 3-00 p.m. and as per seizure list it was prepared in between14-45 hours and 15-30 hours in a village pathway at Purba Vulki village. It was also the argument of the defence that how can a person be convicted in respect of both the charges punishable under Section 489B and 489C of Code. He submitted that 489B deals with using as genuine forged or counterfeit currency notes or bank notes whereas 489C deals with possession of forged or counterfeit currency notes or bank notes.
Learned defence counsel cited two decisions of the Apex Court as reported (1) in 2005 SCC (Cri) 1050 (Raja Ram -vs- State of Rajasthan) in support of his contention that defence can rely upon evidence of a witness examined by the prosecution but not support its case and not declare hostile. In that decision, the Apex Court further held that P.W. who did not support the prosecution case and not declare hostile the evidence of such witness if relied upon by the defence would bind the prosecution, (2) in 2005 SCC (Cri) 1037 (Mukhtiar Ahmed Ansari -vs- State (NCT of Delhi) which is on the same point just in Raja Ram (supra).
It was argued by Mr. Dutta, learned advocate appearing on behalf of the State that there cannot be conviction in respect of both the Sections 489B and 489C of the Code. He took me to the evidence of P.W.4 to say that the police in three motor cycles chased both the present appellant and the accused who was acquitted and as such, they had no time during that hot chase to call the public to come to their help.
Regarding the argument of the defence that no businessman of Burirhut market was called by the police to apprehend the accused. It was the argument of Mr. Dutta relying on the evidence of P.W.4 that when the policemen went to the spot both the present appellant and his accompany Dhiren Barman were already sitting on the motor cycle and seeing the police already they started fleeing away and the police men started chasing. Thus he tried to convince that there was no chance on the part of the police to get any help from the local people.
Regarding the time gap of two hours as come out from the evidence of P.W.6 and P.W.4 i.e. 1 p.m and 3 p.m. it was his argument that P.W.4 came to depose within a year of the incident whereas P.W.6 came to depose after a gap of almost three years and naturally such contradiction may happen. He further argued that P.W.2 and P.W.6 both have partially supported the prosecution story regarding the apprehension of the accused persons and also seizure of "FICNs". He submitted that the decisions of the Apex Court as cited by the defence has enunciated a legal principle that evidence of such witnesses like P.Ws 4 and 6 may be taken help of both by the defence and also by the prosecution. Considering the fact that they were declared hostile, he further submitted that in these days the witnesses are reluctant to help the investigating agency as they are unprotected and they have no special interest in curbing any crime. He took me to the examination of the accused as recorded under Section 313 Cr.P.C. where chance was given to the accused to explain as regards the recovery of five "FICNS" but the accused simply disowned that. He further submitted that P.Ws 2 and 5 have duly corroborated the evidence of P.W.4 and there is no reason to disbelieve the evidence of P.W.4 and the story of recovery is duly established by the prosecution.
In reply, the learned defence counsel submitted by taking me to the evidence of P.W.7 that is the investigating officer of this case that in cross- examination he deposed that in the memo of arrest of this appellant, there is no mention of place of arrest. He further submitted that in fact, the possession of those "FICNs" from the person of this appellant was not at all proved by the prosecution.
Thus, in this appeal I am to answer whether the learned trial Court rightly convicted the present appellant in respect of the charge punishable under Sections 489B and 489C of the Code. There cannot be conviction regarding the possession of the same "FICNS" in respect of the charge punishable under Sections 489B as well as under Section 489C. 489C is an offence of possession in respect of "FICNS" and 489B is a graver section as it has dealt with circulation of those notes in the market. A person who is in possession of "FICNs" is an offender under Section 489C, unless the intention is proved that he was going to circulate in market, there cannot be any conviction under Section 489B of the Code.
It is true that there may be conviction in respect of charge punishable under Section 489B and 489C in respect of a particular offender but in that case the circumstance must be different and not in respect of those currency notes for which he is going to be convicted under Section 489C. I can illustrate that if a person goes to bank and gives 5 (five) "FICNs" of Rs.500/- note, which all proved to be fake, conviction is very much maintainable in respect of the charge punishable under Section 489B. If it is found that apart from those fake currency notes which he tried to use he had in his possession other "FICNs" of different denominations then he can be charged in respect of an offence punishable under Section 489C and conviction can be maintainable in respect of that charge also.
However, in the instant case, before the floor of this Court, the circumstance is not like that. Here there is no evidence that this accused tried to use those "FICNs" as genuine and as such, the offence, which the prosecution made out, was only a charge under Section 489C only. Thus, the conviction under Section 489B is fit to be set aside and I do that.
I have taken into consideration the argument put forwarded by the learned Advocate appearing on behalf of the defance as well as for the prosecution. The star witnesses of this case are PWs 4 and 5 being police personnel. PW 4 is de facto complainant who deposed that on the date of the incident he received a source information and went to the place of occurrence after diarizing the matter. The police party reached at Burirhat Bazar and found the suspect motor cycle. The riders on the motor cycle tried to flew away and the police party chased them and they kept apprehended in front of the house of Sudhir Adhikary (PW 2). When this appellant and the co-accused was apprehended, the police party disclosed their identity and called two independent witnesses and thereafter search and seizure were made and Rs.2500/- "FICNs" wrapped in a Bengali newspaper were found inside the left pocket of the appellant. Those fake Indian Currency Notes were seized. The statement of this appellant made to this accused as regards the absconding accused is irrelevant for the purpose of this case. I have gone through the cross-examination of this witness there is nothing to impeach his credibility. This PW 4 has been well corroborated by PW 5, another police personnel. The two seizure list witnesses are PWs 2 and 6. Let us now say what they deposed. PW 2 deposed that on the date of incident which took place before one year (this witness was examined on 2nd December, 2006 whereas the incident took place on 05.08.2005) at about 3 p.m. in front of his house and on the road. This evidence of PW 2 is matching with the seizure list which was marked as exhibit 2. He further deposed that police officer arrested two persons who were riding a motor cycle and they were charged of possessing counterfeit forged notes and he signed on the seizure list in English which was marked as exhibit 2/1. This witness also identified the present appellant on dock. Failed to answer in his cross-examination wherefrom those accused persons were arrested. It is also true that he deposed on the cross- examination that he signed on the seizure list at the police camp as both the accused persons and the said witnesses had to go there. He further deposed in cross-examination that in the police camp Daraga Babu showed him the forged notes and asked for their signatures as witnesses. It is also clear from his evidence that the police camp was at a distance of half mile. Now, as regard PW 6 this witness deposed that on the date of occurrence at about 1 a.m (which must be p.m. not a.m.) he was returning home and found people had gathered at Burirhat police camp and he also came to know that some fake currency notes were recovered from the possession of some men and he signed on the seizure list at that place in presence of PW 2. This witness duly proved his signature which has marked as exhibit 2/4. This witness also identified this accused.
PW 7 is one formal witness in such a case being the I.O. He investigated the case and submitted charge-sheet. It may be mentioned that the report of the expert was marked as exhibit 7 under Section 292 of the Cr.P.C. It is true that the public witnesses did not support the case in toto as regards the place of seizure. But they duly identified the signatures, identified the accused and also supported the prosecution story that the present appellant and the other accused who was acquitted were apprehended and further that PW 6 duly deposed that he signed in presence of PW 2. This further strengthen the prosecution case that the appellant and the co-accused (already acquitted) were arrested from near the house of PW 2.
Regarding the argument of the evidence that in the memo of arrest no place of arrest was mentioned as deposed by PW 7 cannot be taken into consideration by this Court as neither the document was marked as exhibit by the defence and that the question was not put to PW 4 who actually arrested the appellant. This argument has no leg to stand upon. Considering the fact that the maker of the document ought not to have been confronted with the said document and as that was not done the evidence of the IO cannot be taken into consideration.
Thus, it is apparent from the record that PWs 4 and 5 duly depicted the story of the prosecution in toto and two public witnesses have supported the prosecution case to a great extent. The seized notes were found to be fake as per report of expert the about which I have already told. The next question comes whether I can rely upon the evidence of policemen who are the main pillars of this case.
Time and again, the Apex Court has directed the learned Trial Court to assess the evidentiary value of the police personnel appearing to depose on behalf of the prosecution. I can cite here the decision of the Apex Court, as reported in AIR 1956 SC 217 in the case of Aher Raja Khima -vs- State of Saurashtra wherein the Apex Court held that evidence of a witness cannot be discarded simply because he is a police officer-in-charge of investigation. The police officers are not worse than ordinary human being. It cannot be said that all of them are liers just as it cannot be said that all of them are truthful.
In AIR 1971 SC 28 in the case of Girdhari Lal Gupta & Anr. -vs- D.N. Mehta, Asstt. Collector of Customs: (1970) 2 SCC 530 wherein the Apex Court held that evidence of I.O conducting search may be relied upon without cooperation.
In a recent decision of the Apex Court as reported in AIR 2012 SC 1292 in the case of Govindaraju -vs- State, the Apex Court held that it cannot be stated as a rule that a police officer can or cannot be a sole eyewitness in a criminal case which will depend upon fact of a given case - if testimony of such a witness is reliable, trustworthy, cogent, then the statement of such witness cannot be discarded only on the ground that he is a police officer and may have some interest in success of the case. The Apex Court proceeded to say that only when his interest in success of case is motivated by over zealousness to an extent of his involving innocent people, then, no credibility can be attached to his statement.
In another decision of the Apex Court as reported in (2013) 6 SCC 588 in the case of Pramod Kumar -vs- State (Govt. of NCT of Delhi) wherein the Apex Court held on this subject that non-examination of public witness is not automatically fatal to prosecution case, as ordinarily, public at large show their disinclination to come forward to become witness and the evidence of police witnesses would depend upon veracity, credibility and impeachability of their testimony. It further proceeded to say if the testimony of the police official is found to be reliable and trustworthy, court can definitely act upon the same. The court has every right to disbelieve one unreliable and untrustworthy police man but it should not do so solely on the presumption that a police witness should be viewed with distrust.
This in view of the decisions of the Apex Court referred to above and considering the evidence of PWs 4 and 5 this court is of the firm view that the evidence of these two police men are reliable and trustworthy. This court is not unmindful of the fact that the PW 5 did not depose as regards the chasing of the accused appellant but he has duly corroborated PW 4 in other particulars.
A rule was issued as regards enhance of sentence the matter was separately heard. The defence has left this matter to the discretion of the court and so also the prosecution. In the instant case before this Court only five "FICNs" were seized from the possession of this accused. The accused appellant was sentenced to suffer rigorous imprisonment for four years with fine of Rs.3,000/- in default to suffer further rigorous imprisonment for three months for the offence punishable under Section 489C. According to me the period of substantive imprisonment and fine amount are adequate and sufficient for such crime. Thus the rule is discharged.
Thus, in view of the discussion so long made this court is satisfied that the learned trial court rightly convicted the present appellant in respect of the charge punishable under Section 489C of the Code. The finding of guilt and also the sentence as imposed by the learned trial court are both confirmed. The accused appellant is however acquitted in respect of the charge punishable under Section 489B of the Code.
This appeal succeeds in part there will not be any order as to costs. I reiterate that the period of detention undergone by the convict be set off in terms of under Section 428 of the Cr.P.C. The accused appellant to serve out the remaining part of the sentence.
This accused-appellant was released on bail as per order of this Court as passed in CRAN No. 2000 of 2010 dated 16-06-2011. The order for granting of bail is hereby cancelled. The convict appellant must surrender before the learned Trial Court within 10 days from the receipt of the certified copy of this judgement or receipt of the notice from the Inspector-in-Charge, Dinhata P.S., whichever is earlier.
The Inspector-in-Charge, Dinhata P.S., is directed to inform the present appellant, Anukul Sarkar, son of Bimal Sarkar of Village: Putiramari, P.S. Dinhata, District: Cooch Behar as to the judgement of this Court within seven days from the receipt of the judgement.
If the appellant-convict fails to surrender before the learned Trial Court within that period as mentioned above, then the learned Trial Court will issue warrant of arrest against the said appellant-convict. He will also direct the learned Additional Chief Judicial Magistrate, Dinhata, to proceed against the sureties under Section 446 of the Cr.P.C. suspending the said bail bond. Both the sureties will be placed under suspension till this accused-appellant appears or is brought under arrest.
After the period of appeal is over the counterfeit notes shall be handed over to the Inspector-in-Charge, Dinhata Police on proper receipt as per Rule 222(2) of the criminal rules and order for sending the same to the Issue Department of the Reserve Bank of India, Kolkata with a brief report of this case.
Criminal Section is directed to send a copy of this judgment along with LCR to the learned trial court at once. The said section is directed to transmit another copy of this judgment to the Inspector-in-Charge, Dinhata Police Station, district Cooch Behar for compliance.
Certified copy be supplied to the parties on demand as per rules.
(Indrajit Chatterjee, J.)