Karnataka High Court
Ayyanna S/O Chandrappa Poojari Ors vs The State Through C.P.I. Hunasagi Ps on 23 October, 2020
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MRS.JUSTICE M.G. UMA
CRIMINAL APPEAL No.3609/2012
BETWEEN:
1. Ayyanna S/o Chandrappa Poojari,
Age: 28 years, Occ: Agriculture,
R/o Kakeera, Tq. Shorapur.
2. Lalsab S/o Mahiboobsab Dakhani,
Age: 25 years, Occ: Agriculture,
R/o Abdulla Colony, Hatti,
Tq. Lingasugur, Dist: Raichur.
3. Nagappa S/o Hanamantraya Kukanoor,
Age: 32 years, Occ: Agriculture,
R/o Lingasugur, Dist: Raichur.
4. Martuja @ Haneef S/o Sha Alam Ansari,
Age: 24 years, Occ: Auto Mobile,
R/o Gundurao Colony, Hatti,
Tq. Lingasugur, dist. Raichur.
5. Durgappa S/o Hanamawwa Kattimani,
Age: 35 years, Occ: Contractor,
R/o Harijinvad, Mudgal, Tq. Lingasugur,
Dist. Raichur.
... Appellants
(By Sri Anivash A.Uploankar, Appellant)
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AND:
The State through
C.P.I. Hunasagi Circle. Police Station.
... Respondent
(By Sri Gururaj V. Hasilkar, HCGP)
This Criminal Appeal is filed under Section 374(2)
praying to call for records and examine the records in
Session Case No.14/2010 and set aside the judgment
passed by the learned Sessions Judge, Yadgir for
convicting the appellants by its judgment dated 05th July-
2012 in the interest of justice and equity.
This appeal having been heard, reserved for
Judgment on 16.10.2020 and coming on for
pronouncement of judgment this day, the Court made the
following:-
JUDGMENT
Appellants / accused Nos.1 to 5 have preferred this appeal aggrieved by the impugned judgment of conviction and order of sentence dated 05.07.2012 passed in SC No.14/2010, on the file the learned District and Sessions Judge, Yadgir (for short referred to as 'the Trial court'), where under they accused were convicted by the offence punishable under Section 489-C of Indian Penal Code (for short hereinafter referred to as 'IPC') while acquitting them for the offence punishable under Section 489-B of IPC. 3
2. Brief facts of the case as made out by the prosecution are that Dy.SP Yadgir received credible information regarding possession and circulation of counterfeit currency notes in Kakkera village and immediately secured the assistance of CPI Shahapura, PSI of Yadgir Town Police Station along with their staff. She also secured the presence of two panchas and proceeded to Kakkera village. Since she learnt that such counterfeit currency notes were held by a person who was in Valmiki circle, went to the spot. On seeing the raiding party, a person who was in the circle tried to run away from the spot. On suspicion he was apprehended. On enquiry he revealed his name as Ayyanna. On his personal search three counterfeit currency notes of Rs.500/- denomination, were found in his possession. When he was enquired about these counterfeit notes, he gave information that Nagappa Kukanoor, Lalsab Dakhani and Martuja Ansari are also possessing and circulating counterfeit currency notes in Hatti village of Lingasugur taluka, Raichur District. Accordingly, the raiding party went to Abdulla colony in 4 Hatti village along with accused No.1 Ayyanna. Accused No.1 identified Lalsab/accused No.2, who also tried to run away from the spot. He was apprehended and it was found that he was in possession of four counterfeit currency notes of Rs.500/- each. The said accused No.2 revealed the fact that he himself had given 12 such counterfeit notes to Nagappa. Accordingly, the said Lalsab led the raiding party to Ram-Rahim Colony. A Bolero vehicle bearing Regn.No.KA-36-M-6083 was found in the colony and Lalsab informed that the said vehicle belongs to Nagappa whom he was referring to. Immediately the said Bolero vehicle was intercepted. Nagappa referred to by Ayyanna and Lalsab was in the vehicle. During enquiry he produced 12 counterfeit currency notes of Rs.500/- each and also revealed that the vehicle in question was being used by him to circulate counterfeit notes. Therefore, the counterfeit notes found in his possession along with the vehicle were seized. During enquiry it was revealed that one Martuja Sha Alam is also involved in possessing and circulating such counterfeit notes. Accordingly the raiding 5 party along with the other accused went near J.R.Gundurao Colony. On seeing them a person started running away and he was apprehended at the spot. During enquiry he revealed his name as Murtuja Alam Ansari i.e. accused No.4, and produced four counterfeit currency notes of Rs.500/-. All these currency notes found in the custody of accused Nos.1 to 4 and the Bolero vehicle used by accused No.3 Nagappa in commission of the offence, were seized under the mahazar. All these accused along with the seizure mahazar and the report of the Dy.S.P. were produced before the PSI of Kodekal Police, who registered Crime No.6/2010 for the offence punishable under Section 489-A, 489-B and 489-C of IPC.
3. During investigation it was found that accused No.5 was assisting accused Nos.1 to 4 by supplying the counterfeit currency notes and was abatting the commission of offence. After investigation the charge sheet was filed against all the five accused for the offence punishable under section 489-B of IPC. The jurisdictional 6 Magistrate took cognizance of the offence and committed the case to the learned District and Sessions Judge, Yadgir for trial. The trial court initially framed charge under section 489-B of IPC and on the application of the learned prosecutor, additional charge for the offence punishable under Section 489-C of IPC was framed.
4. The prosecution examined 10 witnesses and got marked 9 documents and identified 24 material objections in support of its contention. The accused has denied the incriminating materials available on record, but have not led any evidence in support of their defence. The trial court after taking into consideration, all these materials on record came to the conclusion that the prosecution is successful in proving the guilt of accused NO.1 to 5 for the offence punishable under Section 489-C of IPC and sentenced them to undergo R.I. for a period of seven years and to pay fine of Rs.15,000/- each. In default to pay fine, they have to undergo S.I. for a period of six months.
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5. Aggrieved by the said judgment of conviction and order of sentence passed by the trial court, the appellants have preferred this appeal on various grounds.
6. Heard Sri Anivash A.Uploankar, learned counsel for the appellants and Sri Gururaj V. Hasilkar, learned High Court Government Pleader for the respondent-State. Perused the materials including the trial court records.
7. The learned counsel for the appellants submitted that these appellants were falsely implicated in the matter without any basis. The Dy.S.P. who held the raid had not registered the FIR immediately after receiving the credible information regarding commission of the cognizable offence, as required under Section 154 of Cr.P.C. Thereby the mandatory requirement of law as laid down in Lalita Kumari V/s Government of Uttar Pradesh and others1 is not complied with. Therefore the entire investigation and trial is vitiated and the accused are entitled to be acquitted in lemine.
_______________________________ 1 (2014) 2 SCC 1 8
8. He further submitted that the panchas said to have accompanied the raiding party have not supported the case of the prosecution. The prosecution has not led the evidence of any of the independent witnesses to prove the commission of the offence. On the other hand, the prosecution is relying on the interested testimony of only the police officials. Under such circumstances, the trial court could not have convicted the accused. He further submitted that the Dy.S.P. who led the raid has not signed the seizure panchanama, which creates serious doubt in the case made out by the prosecution. According to the prosecution witnesses about 13 to 15 persons have gone to various spots and apprehended accused Nos.1 to 4. It is the evidence of the prosecution witnesses that they proceeded in a single jeep which is highly improbable. None of the witnesses have spoken to about the fact as to who wrote the seizure panchanama, the witnesses admitted that the panchanama is in the handwriting of one 9 Sri. Shivananda who was admittedly not accompanied the raiding party.
9. The learned counsel further submitted that in order to prove the commission of offence under Section 489-C of IPC the prosecution is required to prove conscious possession of such counterfeit notes. Merely possessing the notes without any knowledge, will not attract the panel provision. He also contended that the investigation was conducted in a haphazard manner. Even though it is contended that accused Nos.1 to 4 were found in different places, the so called counterfeit currency notes were said to have been seized under a single seizure mahazar, which is practically improbable. The contention of the prosecution that except these counterfeit currency notes nothing else was found in the custody of these accused, is also cannot be believable. He submitted that there is absolutely no evidence against accused No.5 for having possessing and circulating the counterfeit currency notes. These facts and circumstances and the position of 10 law was not at all considered by the trial court which had proceeded to convict the accused without any basis. Hence, he prays for setting aside the impugned judgment of conviction and order of sentence and to acquit accused No.1 to 5 for the above said offence in the interest of justice.
10. Alternatively, the learned counsel submitted that the trial court has imposed maximum imprisonment to the accused and directed them to undergo Rigorous Imprisonment for seven years. There is no reason for imposition of the highest imprisonment to these accused. If this court were to come to the conclusion that the accused are to be convicted for the above said offence, leniency may be shown by imposing lesser punishment in the interest of justice.
11. Per contra, the learned High Court Government Pleader supporting the impugned judgment of conviction and order of sentence submitted that the nature of the offence is such that the FIR could not be registered at the 11 initial stage. Even in Lalita Kumari's case (supra) the Hon'ble Apex Court gave several illustrations and stated that under such circumstances compliance of section 154 of Cr.P.C. is not required. He submitted that under the peculiar facts and circumstances of the case, the Dy.S.P., who is the responsible officer proceeded to the spot along with her staff and panchas and held the raid. If the FIR was to be registered before proceeding to the spot, the accused could not have been caught red handed. He further submitted that this contention regarding non registration of FIR at the initial stage was not taken by the accused before the Trial Court and taken before this court for the first time. Therefore, the same is to be rejected.
12. The learned High Court Government Pleader further submitted that merely because the panchas have turned hostile, the evidence of other witnesses cannot be ignored. The other witnesses who are the official witnesses have acted in discharge of their official duty and there is legal presumption under Section 114(e) of the 12 Evidence Act. The counterfeit currency notes were found in the possession of accused Nos.1 to 4 and the same were seized under the seizure mahazer. No ill-will or motive is suggested to any of the official witnesses to falsely implicate the accused. Minor discrepancies in the evidence of prosecution witnesses do not take away the case made out by it in its entirety. No prejudice is either alleged or probablized by the accused while alleging faulty investigation. Even though the witnesses were cross examined at length, nothing has been elicited from them to disbelieve their version. The trial court after taking into consideration, all these materials on record rightly formed an opinion regarding commission of offence by the accused. No grounds are made out to set aside the impugned judgment of conviction and order of sentence, hence he prays for dismissal of the appeal.
13. On consideration of the materials on record, it is found that a seizure mahazar as per Ex.P1 was drawn in the presence of PW5 and PW6, who acted as panchas 13 throughout the process of the seizure. In the seizure mahazar it is clearly mentioned that PW1-Dy.S.P. had received credible information regarding possession and circulation of counterfeit currency notes by accused No.1 in Kakkera village and she along with other officials and two panchas went to Kakkera village and could apprehended accused No.1 along with 3 counterfeit currency notes, which are more fully described in the mahazar. It was on the basis of the information furnished by accused No.1, the raiding party proceeded to Hatti village of Lingasugur Taluka in search of accused No.2 to 4 and they could find accused No.2 to 4 in Hatti village from whom similar counterfeit currency notes of Rs.500/- each were seized. The Bolero vehicle belonging to accused No.3 which was used for circulation of the counterfeit currency notes was also seized. All these counterfeit currency notes were seizured under the mahazar drawn at each places. Separate seizure mahazar could have been drawn at each places of seizure, but the raiding party felt it proper to write a single seizure mahazar, continuously from Kakkera 14 village were accused No.1 was apprehended and three counterfeit currency notes were seized and thereafter in Hatti village were accused No.2, 3 and 4 were found at different places and counterfeit currency notes were also seized from each of them. The seizure mahazar marked at Ex.P1 discloses that, the mahazar was conducted at each place by mentioning the date and time of writing the said portion of the mahazar, with the signature of the police officer and the panchas. No prejudice whatsoever was projected by the learned counsel for the appellants in view of writing of the single seizure mahazar. Even during cross examination of the official witnesses, nothing has been brought out to disbelieve the version of the prosecution about drawing of the seizure mahazar as contended by the prosecution.
14. The prosecution examined the PSI who was one of the member in the raiding party as PW1 and examined the Dy.S.P. who received credible information, proceeded to the spot along with other officers and in 15 whose presence accused Nos.1 to 4 were apprehended, counterfeit currency notes were seized from their possession and the seizure mahazar was drawn, as PW2. During cross examination of PW2, witness stated that they had reached the spot at Kakkera village in different team and she got written the seizure panchanama through her staff. That being the evidence on record the contention of the learned counsel for the appellant alleged that 13-15 persons proceeding to the spot in a single jeep is most improbable, cannot be accepted. Even though several persons have proceeded to the spot the evidence of this witness clarifies that they reached the spot in a separate groups. The contention of the learned counsel that one Shivanand who wrote the panchanama was not in the raiding party and therefore drawing of the panchanama at the spot is falsified, is also cannot be accepted. During cross examination of the prosecution witnesses, the learned counsel suggested to the defence that it was one Shivanand who wrote the mahazar, but there is no specific admission on the part of either PW1 or PW2 that it was 16 written by the said Shivanand and that the mahazar is in his handwriting.
15. PW3 is the Head constable and PW4 and PW7 are the police constables who accompanied PW2 and assisted in the seizure of the counterfeit currency notes from accused Nos.1 to 4. The evidence of all these witnesses are consistent about the contention taken by the prosecution. The discrepancies pointed out by the learned counsel for the appellant are minor in nature and such discrepancies cannot be termed as contradictions. The so called discrepancies do not go to the root of the matter and will not enure to the benefit of the accused. When several witnesses are examined to speak about a single incident, minor discrepancies and variations bound to occure in a natural course. Moreover the evidence of these witnesses were recorded more than one and half years after the incident and under such circumstances, one cannot expect a stereo typed evidence from all these witnesses. No material contradictions were pointed out to 17 disbelieve the version of the prosecution regarding apprehending and seizing of the counterfeit currency notes from the custody of accused Nos.1 to 4.
16. The learned counsel for the appellants contended that PW5 and PW6 being the panchas have not supported the case of the prosecution and therefore the version of the prosecution cannot be believable. It is quite common now a days that the panchas generally resail from their earlier version, for the reasons best known to them. Simply because the panchas have not supported the case of the prosecution, the prosecution case cannot be thrown over board. There is absolutely no reason to disbelieve the version of the official witnesses. As rightly contended by the learned High Court Government Pleader, no ill-will or motive is alleged against any of these witnesses and no case of false implication is probabilized. There is absolutely no reasons to disbelieve the version of the official witnesses who corroborated each other in material 18 particulars. By no stretch of imagination it can be said that these official witnesses are interested witnesses.
17. The prosecution has also examined PW8 who was working in Notu Mudranalaya (Pvt. Ltd.) Mysore under Reserve Bank of India. This witness deposed before the court that the seized notes were sent for verification and he found all the 23 notes as counterfeit currency notes and they were not genuine Indian currency notes. The certificate issued in this regard as per Ex.P4 and he identified those currency notes as MOs 1 to 19 and 21 to
24. These currency notes were also identified by PW1 to PW4 during their examination and stated that the very same currency notes were found in the possession of accused Nos.1 to 4 and were seized under the seizure mahazar-Ex.P1.
18. As per Ex.P4, 23 notes of Rs.500/-
denomination were certified as not genuine Indian currency notes. Even though PW8 is cross examined, nothing has been elicited from him to disbelieve his 19 version. Even the version of other material witnesses including that of PW2 is not shaken during cross examination. I find material corroboration about the contention of the prosecution regarding commission of the offence by accused Nos.1 to 4. I do not find any reason to disbelieve the version of the prosecution.
19. It is the contention of the learned counsel for the appellants that the prosecution is not successful in proving conscious possession of the counterfeit currency notes by accused Nos.1 to 4. It is no doubt true that to constitute an offence under Section 489-C of IPC, the accused must be found in possession of the counterfeit currency notes, knowing or having reason to believe the same to be counterfeit and intending to use the same as genuine notes. In the present case, the material witnesses including PW2 specifically deposed that accused Nos.1 to 4 were in possession of counterfeit currency notes with an intention to circulate the same to the general public and they were having guilty mind as all these accused either 20 tried to conceal their presence or tried to run away from the spot, on seeing the raiding party. This shows the mens rea on the part of accused Nos.1 to 4. The intention or mens rea is a mental state which is to be gathered or presumed based on the materials and facts and circumstances of the case. The prosecution witnesses spoke about commission of the offence and the intention of accused Nos.1 to 4, there is absolutely no denial of such intention during cross examination. It is not the defence taken by the accused that even though they were in possession of the currency notes in question, they were not aware that those were counterfeit notes. Under such circumstances, this contention raised by the learned counsel for the appellant cannot be accepted.
20. The next contention raised by the learned counsel for the appellant is with regard to non compliance of the requirement of law under Section 154 of Cr.PC. As per Section 154 of Cr.P.C. any information relating to the commission of cognizable offence is received by the officer 21 in charge of the police station, shall be reduced into writing. In Lalita Kumari's case (supra), the Hon'ble Apex Court discussed at length the purpose and scope of Section 154 of Cr.P.C. and highlighted the duty of the officer in charge of the police station to reduce the information received by him relating to commission of the offence, in writing. In the instant case, the contention of the prosecution is that PW2 received information regarding possession of the counterfeit currency notes by accused No.1. She being the Police Officer of the rank of Dy.S.P. secured the presence of PW1 who was working as PSI and also secured the presence of two panchas and proceeded to the spot along with her staff. The information received by PW2 regarding the nature of offence is such that she could not have caused delay in proceeding to the spot, as such delay would have enabled accused No.1 in escaping from the spot. In this regard, the decision rendered by the Coordinate Bench of this court in Tasleem N.P. V/s State of Karnataka2 is required to be considered. This court in the said case observed in para 10 and 11 as under:
____________________________________________________________________________________________________________________ 2 Criminal Petition No.3073/2020 along with connected matters vide order dated 01.10.2020 22 "10. Examined whether the ratio in Lalita Kumari (supra) is applicable in a situation where as police officer only receives a credible or secret information about an offence which is about to be committed, I may with great respect observe that the primary duty of police is to prevent an offence from happening;
immediately after receiving the information, a police officer has to proceed to spot for averting the crime, and taking such other measures as the situation demands. In Lalita Kumari (supra), the focus is on the duty of Station House Officer once he receives information about commission of offence, that means the information should disclose a crime being already committed. And in such a situation, if the crime is cognizable, the Station House Officer is bound to register FIR without wasting time. But the secret information does not disclose a crime being committed, it only alerts the police about a crime which is about to occur. The police officer who receives such information has to proceed to spot for preventing the crime or to take such other measures that the situation demands.
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Thereafter if he prepares a report, it may be treated as FIR for further course of action.
Sometimes, offences do take place in the presence of the police officer. In such a situation, his first duty is to arrest the accused and collect the evidence, and not registration of FIR.
11. In the case on hand what the police officer received was a report about likelihood of offences under NDPS Act being committed, the informant only suspected possession of contraband substances, regarding which no FIR could be registered without ascertaining the truth in the information. The seizure panchanama discloses that the petitioners and other accused possessed contraband substance for the purpose of selling them. He seized the substances and made a report of the same.
No error can be found in it."
21. I find considerable force in the opinion formed in the above decision and fully concur with the same. In the instant case also the information received is about 24 possession of counterfeit notes by accused No.1 and PW2 proceeded to the spot along with panchas and other officials. When the information received by her proved to be true and counterfeit notes were found in his possession, mahazar was drawn at the spot. This procedure adopted by PW2 can not be find fault with. Moreover in Lalita Kumari's case (supra), the Hon'ble Apex Court made it clear that when the nature of information requires preliminary enquiry, the police officer can proceed to hold such enquiry before registration of FIR. It has given certain categories of cases in which preliminary enquires could be held and also clarified by stating that they are only illustrations and not exhaustive of all conditions which may warrant preliminary enquiry. Therefore the contention of the learned counsel for the appellants with regard to non compliance of the requirement of law under Section 154 of Cr.P.C. cannot be accepted.
22. The evidence against accused No.5 is that he was apprehended on the basis of the voluntary statement 25 of accused Nos.1 to 4. Admittedly nothing has been recovered from accused No.5 or at his instance. Except the say of PW9 that accused No.5 was apprehended on the information furnished by accused Nos.1 to 4, no other materials are placed before the court to contend that he had committed any offence or to contend that he supplied the counterfeit currency notes to accused Nos.1 to 4. Under such circumstances, I am of the opinion that the prosecution is not successful in proving the guilt of accused No.5 for commission of the offence under Section 489-C of IPC. But about commission of the offence by accused Nos.1 to 4 the prosecution is successful in proving their guilt beyond reasonable doubt. These accused have not taken any specific defence nor they have probablized any defence to disbelieve the contention of the prosecution.
23. I have gone through the impugned judgment of conviction and order of sentence passed by the trial court which is under challenge. Even through the trial 26 court has rightly formed an opinion, that the prosecution is successful in proving guilt of accused Nos.1 to 4 for the offence punishable under Section 489-C of IPC, committed an error in convicting the accused No.5 for the said offence even though there is no materials against him.
24. The trial court sentenced accused Nos.1 to 4 to undergo R.I. for a period of seven years and to pay fine of Rs.15,000/- and default to pay fine to undergo S.I. for a period of six months. Under Section 489-C of IPC the maximum sentence that can be imposed is imprisonment for seven years or with fine or with both. From the facts and circumstances of the case in the light of the materials placed before the court, I do not find any reason to impose the maximum sentence on accused Nos.1 to 4. Therefore, I am of the opinion that these accused Nos.1 to 4 may be sentenced with imprisonment for two years with fine of Rs.15,000/- each and also with default sentence of six months in default to pay the fine amount.
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25. In view of the discussions held above, I proceed to pass the following.
ORDER Appeal is allowed in part.
Conviction of accused Nos.1 to 4 for the offence punishable under Section 489-C of IPC is confirmed where as accused No.5 is acquitted for the said offence.
Accused Nos.1 to 4 are sentenced to undergo R.I. for a period of two years and to pay fine of Rs.15,000/- each with default sentence of six months, if failed to deposit the fine amount. The impugned judgment of conviction and order of sentence dated 05.07.2012 passed in SC No.14/2010 by the learned District and Sessions Judge, Yadgir is modified accordingly.
Accused Nos.1 to 4 are entitled for set of, for the period of imprisonment (if any), they have already undergone.
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The bail bonds executed by accused No.5 and that of his sureties stand cancelled. Fine amount (if any) deposited by accused No.5 is ordered to be refunded on due identification.
Accused Nos.1 to 4 are directed to surrender before the trial court to serve the sentence. Failing which the trial court is directed to secure the presence of these accused for the said purpose.
Send back the trial court records along with copy of this judgment.
Sd/-
JUDGE SMP