Karnataka High Court
Raffiuddin vs The State Of Karnataka on 26 June, 2013
Author: Ravi Malimath
Bench: Ravi Malimath
- 1-
R
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
ON THE 26TH DAY OF JUNE 2013
BEFORE
THE HON'BLE MR.JUSTICE RAVI MALIMATH
CRIMINAL APPEAL NO. 363 OF 2008
CONNECTED WITH
CRIMINAL APPEAL NOS.372/2008, 379/2008, 403/2008
AND 437/2008
IN CRL.A.363/2008
BETWEEN
MOHD. ABEED S/O ABDUL BARI
AGED ABOUT 25 YEARS
R/O NEAR WATER TANK
KHABARSTAN, MAHBOOB NAGAR
GULABARGA.
...APPELLANT
(BY SRI. USTAD SADAT HUSSAIN AND
SRI.USTAD ZAKIR HUSSAIN, ADVOCATES)
AND
THE STATE OF KARNATAKA
THROUGH BRAHMAPUR POLICE STATION
GULBARGA
... RESPONDENT
(BY SRI. S. S. ASPALLI, HCGP)
- 2-
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C BY THE ADVOCATE FOR THE APPELLANT
AGAINST THE JUDGEMNT DT.10.3.08 IN S.C.NO.248 &
254/2006. ON THE FILE OF THE PRL.S.J, GULBARGA, -
CONVICTING THE APPELLANT/ACCUSED NO.5 FOR THE
OFFENCE P/U/S.489(A), 489(D), 489(C) 489(D) AND
489(E) R/W SEC.149 OF IPC. AND SENTENCING HIM TO
UNDERGO R.I FOR SIX YEARS AND TO PAY A FINE OF
RS.5,000/- I.D. TO UNDERGO S.I FOR SIX MONTHS FOR
THE OFFENCE P/U/S. 489(A) R/W 149 OF IPC. AND
FURTHER SENTENCED TO UNDERGO R.I FOR SIX YEARS
AND TO PAY A FINE OF RS.5,000/-, I.D UNDERGO S.I
FOR SIX MONTHS FOR THE OFFENCE P/U/S. 489(C) R/W
149 OF IPC. AND FURTHER SENTENCED TO UNDERGO
R.I FOR SIX YEARS AND TO PAY A FINE OF RS.5,000/-
I.D TO UNDERGO S.I FOR SIX MONTHS FOR THE
OFFENCE P/U/S. 489(D) R/W 149 OF IPC AND FURTHER
SENTENCED TO PAY FINE OF RS.100-00 I.D. TO
UNDERGO S.I FOR 10 DAYS FOR THE OFFENCE P/U/S.
489(E) R/W 149 OF IPC. THE SUBSTANTIVE SENTENCE
OF IMPRISONMENT SHALL RUN CONCURRENTLY.
IN CRL.A.372/2008
BETWEEN
MUNEER AHMED S/O MUKTAR AHMED
AGE: 21 YEARS, OCC ICE CREAM BUSINESS
R/O RING ROAD, MAHIBOOBNAGAR
GULBARGA
...APPELLANT
(BY SMT.HEMA KULKARNI, FOR
SRI.K.APPARAO & SRI. K.DHIRAJ KUMAR, ADVOCATES)
- 3-
AND
THE STATE OF KARNATAKA
THROUGH BRAHMAPUR
P.S.
... RESPONDENT
(BY SRI. S. S. ASPALLI, HCGP)
THIS CRL.A FILED U/S.374(2) CR.P.C BY THE
ADVOCATE FOR THE APPELLANT AGAINST THE
JUDGEMENT DT.10.03.2008 PASSED BY THE
PRL.SESSIONS JUDGE, GULBARGA IN S.C.NO.248 AND
254/2006-CONVICTING THE APPELLANT ACCUSED NO.
6 FOR THE OFFENCE P/U/S.489(A),489(D), 489(C) AND
489(E) R/W SEC 149 OF IPC. AND ACCUSED NO.6 IS
SENTENCED TO UNDERGO R.I. FOR SIX YEARS AND TO
PAY A FINE OF RS.5,000/-, I.D. TO UNDERGO S.I. FOR
SIX MONTHS FOR THE OFFENCE P/U/S. 489(A) R/W SEC
149 OF IPC. AND FURTHER SENTENCED TO UNDERGO
R.I. FOR SIX YEARS AND TO PAY A FINE OF RS.5,000/-
I.D. TO UNDERGO S.I. FOR SIX MONTHS FOR THE
OFFENCE P/U/S. 489(C) R/W SEC 149 OF IPC. AND
FURTHER SENTENCED TO UNDERGO R.I. FOR SIX
YEARS AND TO PAY A FINE OF RS.5,000/- I.D. TO
UNDERGO S.I. FOR SIX MONTHS FOR THE OFFENCE
P/U/S. 489(D) READ WITH SECTION 149 OF IPC. AND
FURTHER SENTENCED TO PAY FINE OF RS.100=00 I.D.
TO UNDERGO S.I. FOR 10 DAYS FOR THE OFFENCE
P/U/S. 489(E) R/W SEC 149 OF IPC. THE SUBSTANTIVE
SENTENCES OF IMPRISONMENT SHALL RUN
CONCURRENTLY.
- 4-
IN CRL.A.379/2008
BETWEEN
1. MALLIKARJUN @ MALIK S/O RAMU KATAKE
AGE: 30 YEARS, OCC: BUSINESS
R/O VEERESH NAGAR, GULBARGA
2. SHAIKH HABEEB S/O SHAIKH MOHD DUBAIWALE
AGE: 21 YEARS, OCC: STUDENT
R/O MAHIBOOB NAGAR, RING ROAD
GULBARGA
...APPELLANTS
(BY SRI. MAHANTESH DESAI, ADVOCATE)
AND
THE STATE OF KARNATAKA
REP. BY BRAHMPUR POLICE STATION
GULBARGA
... RESPONDENT
(BY SRI. S. S. ASPALLI, HCGP)
THIS CRIMINAL APPEAL FILED U/S.374(2) CR.P.C
BY THE ADVOCATE FOR THE APPELLANTS AGAINST THE
JUDGEMENT DT.10.03.2008 PASSED BY THE
PRL.SESSIONS JUDGE, GULBARGA IN S.C.NO.248 AND
254/2006-CONVICTING THE APPELLANTS ACCUSED
NO.1 & 2 FOR THE OFFENCE P/U/S.489(A),489(D),
489(C) AND 489(E) R/W SEC 149 OF IPC. ACCUSED
NO.1 & 2 ARE SENTENCED TO UNDERGO R.I. FOR SIX
YEARS AND TO PAY A FINE OF RS.5,000/-, I.D. TO
UNDERGO S.I. FOR SIX MONTHS FOR THE OFFENCE
P/U/S. 489(A) OF R/W SEC 149 OF IPC. AND FURTHER
- 5-
SENTENCED TO UNDERGO R.I. FOR SIX YEARS AND TO
PAY A FINE OF RS.5,000/- I.D. TO UNDERGO S.I. FOR
SIX MONTHS FOR THE OFFENCE P/U/S. 489(C) OF R/W
SEC 149 OF IPC. AND FURTHER SENTENCED TO
UNDERGO R.I. FOR SIX YEARS AND TO PAY A FINE OF
RS.5,000/- I.D. TO UNDERGO S.I. FOR SIX MONTHS
FOR THE OFFENCE P/U/S. 489(D) OF 149 OF IPC. AND
FURTHER SENTENCED TO PAY FINE OF RS.100=00 I.D.
TO UNDERGO S.I. FOR 10 DAYS FOR THE OFFENCE
P/U/S. 489(E) OF R/W SEC 149 OF IPC. THE
SUBSTANTIVE SENTENCES OF IMPRISONMENT SHALL
RUN CONCURRENTLY.
IN CRL.A.403/2008
BETWEEN
RAFFIUDDIN S/O KHAMARUDDIN KADAIWALA
ALIES CHINCHOLI
AGE 37 YEARS, OCC: PETTY BUSINESS
R/O KHARI BOWDI, MOMINAPURA
GULBARGA
... APPELLANT
(BY SRI. ASHOK PATIL &
SRI. K C PATIL, ADVOCATES)
AND
THE STATE OF KARNATAKA
THROUGH BRAHMPUR
POLICE STATION
... RESPONDENT
(BY SRI. S. S. ASPALLI, HCGP)
THIS CRL.A FILED U/S.374 CR.P.C BY THE
ADVOCATE FOR THE APPELLANT AGAINST THE
- 6-
JUDGMENT DT.10.3.2008 PASSED BY THE PRL.SJ.,
GULBARGA IN S.C.NO.248 & 254/06 - CONVICTING THE
APPELLANT/ACCUSED NO.4 FOR THE OFFENCES
P/U/SS.489(A), 489(D), 489(C) AND 489(E) R/W. SEC.
149 OF IPC. AND SENTENCING HIM TO UNDERGO R.I.
FOR 6 YEARS AND TO PAY A FINE OF RS.5,000/- I.D.,
TO UNDERGO S.I. FOR 6 MONTHS FOR THE OFFENCE
P/U/S.489(A) OF R/W. 149 OF IPC. AND FURTHER
SENTENCING HIM TO UNDERGO R.I. FOR 6 YEARS AND
TO PAY A FINE OF RS.5,000/- I.D., TO UNDERGO S.I.
FOR 6 MONTHS FOR THE OFFENCE P/U/S.489(C) OF
R/W. 149 OF IPC. AND FURTHER SENTENCING HIM TO
UNDERGO R.I. FOR 6 YEARS AND TO PAY A FINE OF
RS.5,000/- I.D., TO UNDERGO S.I. FOR 6 MONTHS FOR
THE OFFENCE P/U/S.489(D) OF R/W. 149 OF IPC. AND
FURTHER SENTENCING HIM TO PAY FINE OF RS.100/-
I.D., TO UNDERGO S.I. FOR 10 DAYS FOR THE OFFENCE
P/U/S.489(E) OF R/W. 149 OF IPC. THE SUBSTANTIVE
SENTENCES OF IMPRISONMENT SHALL RUN
CONCURRENTLY.
IN CRL.A.437/2008
BETWEEN
MAHIBBOB PASHA @ SHAHN @ VEKEEL
S/O MOHD.GALIB LAFRWALE
AGED 26 YEARS,
OCC;REPAIR WORK OF ELECTRIC ITEMS
R/O NEA HINDUSTAN ICE FACTORY
MAHIBOOB NAGAR, GULBARGA
... APPELLANT
(BY SMT. MANJULA N. TEJASWI, ADVOCATE)
- 7-
AND
THE STATE OF KARNATAKA
REP. BY BRAHMAPUR POLICE STATION
GULBARGA
... RESPONDENT
(BY SRI. S. S. ASPALLI, HCGP)
THIS CRL.A FILED U/S.374(2) CR.P.C BY THE
ADVOCATE FOR THE APPELLANT AGAINST THE
JUDGMENT DT.10.3.2008 PASSED BY THE PRL.SJ.,
GULBARGA IN S.C.NO.248 & 254 OF 2006 -
CONVICTING THE APPELLANT/ACCUSED NO.3. FOR THE
OFFENCE P/U/SS.489(A), 489(D), 489(C) AND 489(E)
R/W. SEC. 149 OF IPC; AND FOR THE OFFENCE P/U/S.5
R/W. 25(1)(A) OF THE INDIAN ARMS ACT. AND
SENTENCING HIM TO UNDERGO R.I. FOR 6 YEARS AND
TO PAY A FINE OF RS.5,000/- I.D., TO UNDERGO S.I.
FOR 6 MONTHS FOR THE OFFENCE P/U/S.489(A) R/W.
149 OF IPC; FURTHER SENTENCING HIM TO UNDERGO
R.I. FOR 6 YEARS & TO PAY A FINE OF RS.5,000/- I.D.,
TO UNDERGO S.I. FOR 6 MONTHS FOR THE OFFENCE
P/U/S.489(C) OF R/W. 149 OF IPC; AND FURTHER
SENTENCING HIM TO UNDERGO R.I. FOR 6 YEARS AND
TO PAY A FINE OF RS.5,000/- I.D., TO UNDERGO S.I.
FOR 6 MONTHS FOR THE OFFENCE P/U/S.489(D) OF
R/W. 149 OF IPC. AND FURTHER SENTENCED HIM TO
PAY FINE OF RS.100/- I.D., TO UNDERGO S.I. FOR 10
DAYS FOR THE OFFENCE P/U/S.489-(E) OF R/W.149 OF
IPC; AND FURTHER SENTENCING HIM TO UNDERGO R.I.
FOR ONE YEAR AND TO PAY A FINE OF RS.2,000/- I.D.,
TO UNDERGO 3 MONTHS S.I. FOR THE OFFENCE
P/U/S.5 R/W. 25(1-A) OF THE INDIAN ARMS ACT. THE
SUBSTANTIVE SENTENCES OF IMPRISONMENT SHALL
RUN CONCURRENTLY.
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THESE APPEALS ARE COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGEMENT
The case of the prosecution in brief, is that on 18.11.2005, at about 6.00a.m. the Deputy Superintendent of Police, Gulbarga namely PW-2, the complainant, while he was in office, received a credible information about the manufacture and transport of counterfeit notes. He secured his staff and panchas to his office and went near Jagat circle, Gulbarga. At about 7.15 a.m. while he was waiting along with his staff, two persons came on two different wheelers. He signalled them to stop. They avoided him. They sped away. The complainant along with his staff chased them and thereafter caught them near Dhobighat. The complainant enquired with the accused as to why they did not stop the vehicle. No satisfactory answer was given. He searched accused No.1. He found 121 counterfeit notes of Rs.500 each in his possession. He
- 9- took 5 notes out of them from each of the series, sealed them to be sent to Nasik for expert opinion. He also seized the two wheeler, a mobile phone and a currency note of Rs.1,000/-. He also searched accused No.2 who was found in possession of 131 notes of Rs.500/- denomination of counterfeit notes. He took a sample and sealed them to be sent to Nasik for examination. The vehicle and mobile phone were also seized. A FIR was prepared in Crime No.172/05, for offences punishable under Sections-489A, B, C, D, E read with 149 of IPC against accused nos.1 and 2.
2. On the basis of the voluntary statement of accused No.1, he took them to his house where he showed the notes being printed. Accused No.3 to 6 were in the house with computers, scanners, printers, mobile phones, ink jet, note pressing machine, monitor, key board, CPU etc. 526 notes of Rs.100/- each were seized. Thereafter a second report so far as accused
- 10- No.3 to 7 are concerned, was prepared in Crime No.173/06, for offences punishable under Section 489A, B, C, D, E read with 149 IPC and under Section-25(B) of the Indian Arms Act. Investigation was taken up. Charge sheets were filed in both the cases. Accused nos.1 to 7 were charge-sheeted for offences punishable under Section-489A, 489C, 489D and 489E read with Section-149 of the Indian Penal Code. Accused Nos.3 and 7 were further charged for offences punishable under Section - 25(1)(a) and 25(1)(b) of the Indian Arms Act. Cr.No.172/2005 was sought to be tried in S.C. No.254/2006 and Cr.No.173/2005 was sought to be tried in S.C.No.248/2006 before two different courts. Accused nos.1 and 2 filed a Criminal Petition in Crl.P No.5748/2006, before the High Court under Section - 482 of Cr.P.C., seeking for a direction to club S.C.No.254/2006 pending trial before the Principal Sessions Judge, Gulburga and S.C.No.248/2006,
- 11- pending trial before the Fast Track Court, Gulburga. The High Court by its order dated 11.01.2007, ordered as follows:
"a. The Sessions Case No.254/2006 and 248/2006 shall be tried together before the Principal Sessions Court, Gulbarga. Accordingly Sessions Case No.248/2006 stands transferred to the file of Principal Sessions Court, Gulbarga.
b. The Charge sheet filed in Sessions Case 248/2006 and 254/2006 shall be treated as joint investigation report.
c. The charges framed in SC 254/2006 shall be altered in accordance with law under the facts of the case having regard to the charge sheet filed in SC 248/2006.
d. The witnesses cited in the charge sheet filed in SC 248/2006 shall also be treated as witnesses in SC 254/2006.
- 12- e. After the trial is over the Sessions Case shall be decided by the common judgment and order."
Thereafter, charges were framed on 28.2.2007 as per the directions of the High Court.
In support of its case, the prosecution examined seven witnesses, marked 10 exhibits and 37 material objects.
3.(a) On contest, the Trial court acquitted accused No.7 of all the charges leveled against him. Accused No.1 to 6 were convicted for the offence punishable under section 489(A) read with section 149 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for a period of six years and to pay a fine of Rs.5,000/- each and in default of payment of fine, to undergo simple imprisonment for a further period of six months.
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(b) The accused 1 to 6 were convicted for the offence punishable under section 489(C) read with section 149 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for a period of six years and to pay a fine of Rs.5,000/- each and in default of payment of fine, to undergo simple imprisonment for six months.
(c) The accused 1 to 6 were convicted for the offence punishable under Section-489(D) read with Section-149 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for a period of six years and to pay a fine of Rs.5,000/- each and in default of payment of fine, to undergo simple imprisonment for six months.
(d) The accused 1 to 6 were convicted for the offence punishable under Section-489(E) read with section 149 of the Indian Penal Code and sentenced to
- 14- pay a fine of Rs.100/- each and in default of payment of fine, to undergo imprisonment for ten days.
(e) The accused No.3 was also convicted for the offence punishable under Section-25(1)(a) of the Indian Arms Act and sentenced to undergo Rigorous Imprisonment for a period of one year and to pay a fine of Rs.2,000/- and in default of payment of fine, to undergo simple imprisonment for three months.
Aggrieved by the conviction and the sentence imposed, accused 1 to 6 have filed the top noted appeals.
4. Criminal Appeal No. 379/2008 is filed by accused No.1 and 2. Criminal Appeal No. 437/2008 is filed by accused No.3. Criminal Appeal No. 403/2008 is filed by accused No.4. Criminal Appeal No. 363/2008 is filed by accused No.5 and Criminal Appeal No. 372/2008 is filed by accused No.6.
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5. Sri.Mahantesh Desai, the learned counsel appearing for accused No.1, 2 and 3 namely with reference to Criminal Appeal No. 379/2008 and 437 of 2008, contends that the judgement of conviction is erroneous. That the Sessions Judge failed to appreciate the case on hand. That it has misread the evidence. That there is a substantial delay in lodging the FIR. That accused No.1 and 2 were apprehended around 7.15 a.m., whereas the FIR was lodged at 9.00p.m. That the evidence of the witnesses would show discrepancies insofar as the time of arrest is concerned. The evidence with regard to the same are inconsistent. That mere possession of counterfeit notes would not attract the charges levelled against them. That the prosecution would have to prove that the accused had an intention of using the said notes as genuine. The prosecution has failed to do so. It is his further contention that even though the alleged counterfeit notes were sent for examination to the Government press at Nasik and a
- 16- report was received, no expert has been examined by the prosecution. There is none to speak about the report. Therefore, when the report is not substantiated by any evidence, it cannot be accepted. Therefore, the prosecution has failed to establish that the notes in possession of the accused were counterfeit notes. Hence the entire case of the prosecution would fail. That none of the statements made by accused No.1 and 2 before the Investigating officer would be admissible in evidence.
6. Sri.Nandkishore Boob, the learned counsel appearing for the appellant-accused No.4 in Criminal Appeal No. 403 of 2008 while supporting the contentions raised by the other counsels, further contends that the evidence would show that the panchas are staying one hour away from the place of seizure. That the panchas were summoned at about 6.00 a.m. They would have reached the place only at 7.00 a.m. Therefore, the plea
- 17- of the prosecution cannot be accepted. Hence, the entire prosecution case would have to fail. That no Court can convict any accused based on the evidence of police officers. Therefore, if any police officer is the sole witness, no conviction could lie. That at the time of seizure, the prosecution has stated the value of the notes. Since the prosecution has stated that the counterfeit notes are valuable, their case that they are counterfeit notes cannot be accepted. Therefore, in terms of the prosecution case itself, none of them are counterfeit notes and all of them are valuable notes.
7. Sri.Shivashankar Reddy, the learned counsel appears for the accused No.5 in Criminal Appeal No. 363 of 2008. He contends that the entire investigation is vitiated and hence the trial should necessarily fail. Therefore, he pleads that the appeal be allowed by acquitting accused No. 5 of the charges levelled against him.
- 18-
8. Smt.Hema Kulkarni, the learned counsel appears for accused No.6 in Criminal Appeal No. 372/2008. She contends that the entire case of the prosecution is based on the interested evidence of PW 2 and 4. Both are police officers. PW 2 is the complainant. PW 4 and 5 are police officers who accompanied him during the seizure. Therefore, their evidence cannot be accepted. She relies on the cross examination of PW 2 and PW 4 to contend that there has been a discrepancy in their evidence. They have resiled from their statements made in the examination in chief. They have stated that the pant pocket and the watch pocket has not been seized. There is no personal search so far as PW 2 and PW 4 are concerned at the time of seizure. She relies on the unreported judgement of the learned Single Judge of this Court dated 13th September 2012 in Criminal Petition No. 2313/2012 and connected matters to contend that in the absence of FIR and violation of sections 156 and 159 of Code of Criminal Procedure, the
- 19- entire proceedings run contrary to law and therefore, stand vitiated. She therefore, pleads that the said judgement squarely covers the case on hand. She further places reliance on the judgement reported in 2001 (9) SCC 642 in the case of Umashankar vs. State of Chattisgarh to contend that mere possession of counterfeit notes is not sufficient to establish a charge against the accused under section 489(C). Hence, she pleads that the appeal be allowed and accused No. 6 be acquitted of all the charges levelled against him.
9.(a) On the other hand, Sri.S.S.Aspalli, the learned HCGP submits that there is no delay in lodging the complaint. After accused Nos. 1 and 2 were arrested, they made voluntary statements that counterfeit notes and equipment of manufacture etc. are in the house of the accused No.1. Therefore, PW.2, PW.4 and PW.7 went along with the accused Nos. 1 & 2 to the house of the accused No.1, wherein they found the
- 20- counterfeit notes and the equipment of manufacture etc. Therefore, there is no delay in lodging the FIR. Since they went in search of the accused Nos. 3 to 7 based on the voluntary statements made by the accused Nos. 1 & 2, there is no delay in filing the FIR by the prosecution. Hence, the contention of the appellants that delay is fatal to the case of the prosecution cannot be accepted.
(b) He further contends that an expert need not to be examined, in as much as, there are no suggestions made to PW.2 or PW.4 that such an expert opinion is doubtful. Therefore, when the genuineness of the documents has not been questioned by the appellants, the examination of the expert is of no consequence. The Court would have to rely on such documents. He further contends that the submission of the appellants that there is no material to show that the house belongs to accused No.1 cannot be accepted. There are various houses in the country, where the ownership is not
- 21- reflected in the revenue records. This is one such case. Therefore, the absence of any documents of title with regard to the house of accused No.1, is of no consequence at all. He submits that the offences committed by accused / appellants affect the economy of the country. The Accused were caught red-handed. The prosecution has established its case beyond all reasonable doubt. He further contends that in terms of Ex.P.1, it could be seen that there is supply of electricity by the GESCOM, Gulbarga. Therefore, power supply was available and the machinery seized were functional due to the availability of electricity to the house. He further submits that the judgment relied upon by the appellants are not applicable to the case on hand. Therefore, he pleads that the judgment of the trial court is just and appropriate. There is no error on appreciation of evidence. The trial court has passed a well-considered order. Hence, he pleads that the appeals be dismissed.
- 22-
10. Heard learned counsels and examined the records.
11. PWs.1 & 3 are the panchas for the recovery who have turned hostile. PW.2 is the Deputy Superintendent of Police, who is the complainant. PW.4 is the CPI Yadigir, who accompanied the complainant. PW.5 is the PSI who registered the case. PW.6 is the CPI who conducted the investigation and filed the charge sheet. PW.7 is the Head Constable, namely the writer in the Police Station who also accompanied PW.2.
12. The Trial Court on considering the material and evidence on record, was of the view that the prosecution has established its case beyond all reasonable doubt, so far as accused nos.1 to 6 are concerned. The charge against accused no.7 was under
Section-25(1)(a) of the Indian Arms Act. Since there was no material to establish the charge against him, he was acquitted. It was held that there was no delay in
- 23- lodging the complaint. Even if there is delay, the delay by itself is not fatal to the case of the prosecution. That the evidence of the prosecution leads to the guilt of the accused. That there are substantial material to establish the prosecution case. That the accused were found in possession of counterfeit notes, as well as machinery and equipments to manufacture them. Accused No.3 was found in possession of a pistol vide MO-37, and was convicted for an additional offence under Section-
25(1)(a) of the Indian Arms Act. Therefore, the accused were convicted.
13.(a) The appellants contend that there has been a substantial delay in lodging the complaint. That on 18.11.2005 at about 7:30 a.m., the accused Nos.1 and 2 were accosted. A panchanama was drawn between 7:30 am to 9:00 am in the presence of CWs.2 and 3. The complaint was lodged at 8:00 p.m. in Crime No.172/2005. It reached the magistrate at 9.00 p.m.
- 24- On the voluntary statement of accused No.1, they proceeded towards the house of accused No.1, wherein accused Nos.3 to 6 were found in the process of manufacturing counterfeit notes. A panchanama was drawn between 9:45 am to 12:15 p.m. The second complaint was lodged in Crime No.173/2005 at about 9:30 p.m. It reached the magistrate at 10.30 p.m. It is therefore contended that there is a substantial delay. That the prosecution has failed to explain the delay. That failure to explain the delay is fatal to the case of the prosecution. On the other hand, the HCGP contends that in view of the overall facts and circumstances of the case, it cannot be said that the delay is to such an extent that the prosecution case is to be disbelieved. Moreover the delay has not been questioned. Neither the complainant nor the Investigating Officer, has been cross examined with regard to delay. Hence he pleads that delay cannot be now pleaded.
- 25-
(b) PW.2 is the complainant who has narrated the manner in which the panchanama was drawn and the FIR were lodged. He has been extensively cross- examined by the defence. However, there are no suggestions put to him on the question of delay. A suggestion is required on the question of delay, in order to show that such a delay not only vitiates the investigation, but leads to miscarriage of justice. No such suggestion is put to the prosecution. PW.2 has stated that from accused No.1, 121 counterfeit notes of Rs.500/- each was seized as well as a Reliance mobile and a two wheeler and articles vide MO's 1 to 4. From accused No.2, they have seized 131 counterfeit notes of Rs.500/- each denomination, a mobile phone and a two wheeler and articles vide M.O's 5 to 8. From the possession of accused No.3, a scanner, printer and copier and 278 counterfeit notes of Rs.100/- denomination and articles vide M.O's 9 to 17. From accused No.4, they seized 116 counterfeit notes of
- 26- Rs.100/- denomination and articles vide M.O's 18 to 21. From accused No.5, they seized a bundle of counterfeit notes of Rs.100/- denomination and articles vide M.O's 28 to 36. From accused No.6 they seized 108 counterfeit notes of Rs.100/- denomination and articles vide M.O's 22 to 27. A.3 was also found in possession of a country made pistol, but there were no bullets. There is no suggestion made even to the Investigating Officer, PW- 6, with regard to delay. It has not been shown to the court there was any foundation laid by the defence with regard to the delay. There was no suggestion put to the Investigation Officer in the cross-examination that there has been a delay. Therefore, when no foundation was laid, the same cannot be appreciated at this stage.
(c) The Hon'ble Supreme Court in the case reported in 1973 (3) SCC 896 Bharatsing vs. State of Uttar Pradesh, held at para-6, as follows:
"6.......Now it is true that in the instant case there was a delay of about three months in
- 27- holding the identification parade but here again, no questions were asked of the investigating officer as to why and how the delay occurred. It is true that the burden of establishing the guilt is on the prosecution but that theory cannot be carried so far as to hold that the prosecution must lead evidence to rebut all possible defences. If the contention was that the identification parade was held in an irregular manner or that there was an undue delay in holding it, the Magistrate who held the parade and the Police Officer who conducted the investigation should have been cross- examined in that behalf."
(d) The Hon'ble Supreme Court in the judgment reported in AIR 1955 SC 196 in the case of H. N.Rishbud vs. The State of Delhi, held that merely pleading delay cannot end in the prosecution case to be disbelieved nor in the acquittal of the accused. The defence would necessarily have to show that such a delay has resulted in an illegal investigation, more particularly, that it has
- 28- resulted in miscarriage of justice. That the delay has resulted in miscarriage of justice.
(e) The Hon'ble Supreme Court in the judgment reported in 2009 (17) SCC 724 in the case of SATISH NARAYAN SAWANT Vs. STATE OF GOA held at para-28 as follows:
"28............From the evidence on record it does not appear to us that any suggestion was given to the said witness to the effect that the copy of the FIR was not sent or that it was dispatched late, which if given, would have given an opportunity to the witness to afford some explanation or to show as to when the FIR was sent to and received by the Magistrate. In that view of the matter we do not agree with the counsel appearing for the appellant that delay in transmitting the FIR to the Magistrate stands proved in the present case."
- 29-
(f) The Hon'ble Supreme Court in the judgment reported in 2011 (7) SCC 421 , in the case of BHAJAN SING AND OTHERS Vs. STATE OF HARYANA held at para-31 as follows:
"31. In view of the above, we are in agreement with the High Court that there was no delay either in lodging the FIR or in sending the copy of the FIR to the Magistrate. It may be pertinent to point out that the defence did not put any question on these issues while cross- examining the investigating officer, providing him an opportunity to explain the delay, if any. Thus, we do not find any force in the submission made by the learned counsel for the appellants in this regard."
(g) The Hon'ble Supreme Court in the judgment reported in 2004 (10) SCC 682 in the case of SAHDEO AND OTHERS VS. STATE OF U.P. held at para-8 as follows:
- 30-
"8. The Counsel for the appellants seriously contended that the first information report was received by the Magistrate only on 18.1.2000 and the prosecution did not explain the six days' delay in sending the FIR to the Court. It is important to note that the investigating officer was not asked to explain how the delay occurred in sending the FIR to the Magistrate. The counsel further contended that the FIR must have been concocted later after the inquest and post-mortem examinations were over. It was submitted that the delay in sending the FIR to the Magistrate enabled the prosecution to cook up a false case against the appellants. We are not inclined to accept this contention for the reason that the FIR statement contains only a brief statement of events. If the FIR had been prepared later after the inquest and post-mortem were over, many more matters could have been incorporated in the FIR. The absence of any further
- 31- details in the FIR shows its genuineness and the delay probably would have happened due to some other reason, which the investigating officer was not given any opportunity to explain."
(h) The Hon'ble Supreme Court in the judgment reported in 2011 (6) SCC 288 in the case of BRAHM SWAROOP AND ANOTHER Vs. STATE OF U.PRADESH held at para-21 as follows:
"21. In the instant case, the defence did not put any question in this regard to the investigating officer, Raj Guru (PW-10), thus, no explanation was required to be furnished by him on this issue. Thus, the prosecution had not been asked to explain the delay in sending the special report."
(i) The Hon'ble Supreme Court in the judgment reported in AIR 1973 SCC in the case of SAKTU AND ANOTHER Vs. STATE OF U.P. held at para-5 as follows:
- 32-
"5. It was urged by the learned counsel that the First Information Report was lodged after some delay and therefore there was opportunity for manipulation. We are not disposed to agree that there was any delay in lodging the FIR. The police station where the complaint was lodged is six miles away from the scene of occurrence. The occurrence took place at about 1 a.m. on the 26th and the complaint was lodged at about 10 a.m. Jwala Prasad bore no ill-will or enmity to the appellants and therefore there was no question of his delaying deliberately the filing of the FIR so as to involve the appellants falsely."
(j) The Hon'ble Supreme Court in the judgment reported in 2005 (9) SCC 283 in the case of SUNIL KUMAR AND ANOTHER Vs. STATE OF RAJASTHAN held at para-13 as follows:
"13. xxxxx Additionally, no question was asked of the investigating officer as to the reason for the alleged delayed dispatch of
- 33-
the FIR. Had this been done, the investigating officer could have explained the circumstances. That having not been done, no adverse inference can be drawn.
14. The Hon'ble Supreme Court has consistently held that only because there is a delay, the case of the prosecution cannot be disbelieved. That merely stating delay would not vitiate the proceedings. It was held that so far as the question of delay and other issues are concerned, the investigating officer would have to be cross-examined. The case of the prosecution cannot be thrown out merely on the ground of delay. Delay by itself cannot be a sole ground to reject the prosecution case. When there are other material to establish the case of the prosecution, it cannot be disbelieved solely on the ground that there is a delay in lodging the FIR.
That when no question is asked to the Investigating Officer as to the reason for the delay in lodging the complaint, the Court cannot draw an adverse inference
- 34- against the prosecution. If only the question of delay was accosted to the prosecution, it is only then the prosecution would have made an attempt to explain the delay. Having not questioned the prosecution with regard to delay, it cannot be pleaded that the delay vitiates the proceedings. That mere pleading of delay is not sufficient to render the prosecution case as being doubtful. The defence would have to show, that as a result of such a delay, the same has lead to miscarriage of justice. That as a result of delay, they have been falsely implicated. That as a result of delay that there has been an error in the investigation. However, none of these has been pleaded. It is not even pleaded that there was an enmity between the Investigating Officer and the accused. There is no pleading to such an effect.
Therefore, it cannot be said that the reason for the delay is to falsely implicate the accused. There is absence of evidence of motive against the prosecution. When the prosecution had no motive to falsely implicate the
- 35- accused, on this ground also it cannot be said that the delay has caused prejudice to the accused.
15.(a) It was further contended by the appellants that even before lodging the complaint, the investigation was taken up. That the case of the prosecution is that PW.2 received credible information in respect of the commission of the offences. He therefore, proceeded to the scene of the offence and accosted accused Nos.1 and 2 and thereafter the complaint has been registered. It is therefore contended that until and unless an FIR is lodged the police cannot commence investigation at all. In support, reliance was placed on the order of the learned Single Judge of this Court dated 03.09.2012, in Criminal Petition No.3213/2012 and connected matters wherein it was held that if an investigation is taken up without lodging the FIR, the same vitiates the entire proceedings. While deferring with the aforesaid view, a
- 36- learned Single Judge of this Court in Criminal Petition No.15852/2012, directed the registry to place the matter before the Hon'ble Chief Justice to refer the matter to the Division Bench or to a larger Bench for consideration of the deferring views on the following question:
"Whether the Investigating Officer is bound to register the FIR and thereafter embark upon investigation"
(b) In considering the same the Division Bench by its order dated 05.02.2013, passed in Criminal Petition No.15941/2012, connected with Criminal Petition No.15852/2012, held at para-10 and 11 as follows:
"10. With regard to the question whether registration of FIR should precede the investigation or that FIR could be registered under the midst of the process of investigation would always depend upon the facts and circumstances of each case. In a
- 37- situation where an offence is committed right in the presence of a police officer, it would be imprudent to insist that he should rush to the police station to record the FIR. The police officer should immediately act, like apprehending the accused, sending the victim to medical treatment etc., and thereafter registration of FIR would be an ideal investigation procedure. Otherwise, in all other type of cases, registration of FIR is mandatory since an FIR is to be sent to the Court at the earliest stage, so that no manipulating and tampering of facts would be possible. If the FIR is sent to the Court, all further investigation should necessary be consistent with the FIR.
11. In the context of facts of the case on hand, the conduct of investigation by surprise raid in the absence of FIR is untenable. Accordingly, the substantial question of law formulated for consideration is answered in the affirmative."
- 38-
(c) However, the Division Bench of this Court while considering the question referred to it made an exception to the same in para - 10 of its judgment. It was of the view that it would be imprudent to insist that an Investigating Officer should rush to the police station to record the FIR. That the Police Officer should immediately act, like apprehending the accused, sending the victim to medical treatment, etc. and thereafter registration of FIR would be an ideal investigation process. The same exception is applicable to the present case. When a credible information was received with regard to the counterfeit notes, the Investigating Officer was expected to investigate and proceed further in the matter. He was not expected to go the police station to record the FIR and thereafter go for investigation. Hence this case stands covered by the exception carried out by the Division Bench.
- 39-
(d) Even otherwise, the question of law that has been answered by the Division Bench is summed up in para - 11 of the judgment, wherein it was held with regard to the context of the facts of the case on hand. Thereafter the law has been enunciated. Since the enunciation of law is with reference to the context of the facts of the case on hand, the context of facts of the present case necessarily would have to be viewed from that angle. Under these circumstances, I'am of the considered view that the contention of the defence cannot be accepted. The facts and circumstances, as involved in each case has to be weighed in order to consider the said issue.
(e) The order of the Hon'ble Division Bench was in the face of the order of the Hon'ble Supreme Court reported in 2012 (4) SCC 1 in the case of LALITA KUMARI vs. STATE OF U.P., AND OTHERS, wherein an identical question of law was considered by the Hon'ble
- 40- Supreme Court in depth. In considering the divergent views expressed by the Hon'ble Supreme Court, the matter was directed to be placed before the Chief Justice for constitution of a larger bench to decide the question, namely, as to whether the Investigating Officer is bound to register the FIR and thereafter conduct a investigation or the Investigating Officer can conduct an investigation and thereafter consider to register the FIR. Hence, the issue is still pending.
(f) The evidence would show that PW-2 received a credible information. It was his duty to act forthwith. If on the other hand, if it is to be held that rather than apprehending the accused, if the police officer was to first register the case and thereafter apprehend the accused, the same would result in the mockery of the criminal justice system. The duty of the police is not only that of investigation, but also prevention of crime. When a credible information is received, it is the
- 41- bounded duty of the police to act forthwith. Therefore, it cannot be said that apprehending the accused before registering FIR would vitiate the entire proceedings. Hence, in the facts of this case, conducting the investigation first, cannot be found fault with especially in view of the order of the Division Bench.
(g) Irrespective of the fact whether the FIR has to be lodged prior to, or after an investigation, the appellants contend that the same has resulted in an illegal investigation. Therefore, the entire proceedings are vitiated. Even if the issue is to be held in favour of the appellants, such a contention cannot be accepted, until and unless it is shown that as a result of an improper investigation, the same has resulted in miscarriage of justice. That in view of the delay in lodging the FIR, it has to be presumed that the prosecution has created a false case against the
- 42- accused, which has therefore lead to miscarriage of justice, cannot be accepted. They have to cross-examine the prosecution in this regard, which has not been done. The evidence on record would show that no such suggestion was put to the prosecution. Therefore, it cannot be presumed that a mere delay in lodging the FIR or apprehending the accused prior to lodging of FIR, has lead to miscarriage of justice. Following the judgment of the Hon'ble Supreme Court reported in AIR 1955 SC 196 in the case of H N Rishbud vs the State of Delhi, that a mere improper investigation in the absence of pleading cannot lead to disbelieving the case of the prosecution, the plea of the appellants cannot be accepted.
(h) Even on examining the cross-examination conducted by the defence, it could be seen that not a single question has been asked to the prosecution with regard to the delay or with regard to an improper
- 43- investigation. There is no foundation laid by the defence on the question of an irregular investigation. Under these circumstances, the delay or an improper investigation perse, cannot render the prosecution case to be doubtful, especially, when the prosecution has established all the facts.
(i) The Hon'ble Supreme Court in the judgment reported in 2010 (15) SCC 725 in the case of REKHA vs. STATE OF MAHARASHTRA held at Para 4 as follows:-
"4. xxxxxxxxxxx The very purpose of investigation is to collect the evidence relating to commission of offence for establishing the accusation against the offender. In a matter like this, it would always be necessary for the Court to examine if the accused in any way has been prejudiced by the steps taken by the investigating agency and further, by the Court in proceedings with the matter. Neither do we find any prejudice on the part of the accused nor are we in a position to
- 44- hold that there was any infirmity with the investigation being conducted in the case in hand; particularly when the police submitted the charge-sheet under Sections 324 and 341 IPC. The subsequent order of the Magistrate framing charge under Section 323 IPC would not vitiate the investigation carried on nor the filing of the charge-sheet."
(j) The Hon'ble Supreme Court in the judgment reported in AIR 1964 SUPREME COURT 33 (V 51 C 5) in the case of THE STATE OF ANDHRA PRADESH Vs. VENUGOPAL AND OTHERS held at para-25 as follows:
"25. It is also to be mentioned that no objection that the investigation had been conducted in violation of the Standing Orders appears to have been taken at any stage earlier than the trial in the Sessions Court. It will be proper to hold therefore on the authority of Rishbud's case, H.N.Rishbud vs.State of Delhi, 1955-1 SCR
- 45- 1150:[(S) AIR 1955 SC 1960] that even if the provision that the investigation had to be held and completed by a Magistrate had the force to law and was mandatory the trial would not be rendered invalid unless it was shown that miscarriage of justice has been caused on account of the illegal investigations. Learned Counsel was not able to show how the accused were in any way prejudiced by reason of the fact that the investigation was completed by the Inspector of Police. We have therefore no hesitation in rejecting the contention raised on behalf of the respondent that the trial was bad in law because investigation was completed by an Inspector of Police. See Munnalal's Case, (Munnalal v.State of U.P. Criminal Appeals Nos.102 to 104 of 1961, D/17-4-1963:(AIR 1964 SC 28)."
(k) The Hon'ble Supreme Court in the judgment reported in AIR 1973 SC 1379 in the case of SRI DURGA DASS Vs. STATE OF H.P held at para-8 as follows:-
- 46-
"8. The appellant, however, contended that the Sub-Inspector Gian Chand was not authorized to investigate the case and the conviction was therefore bad. The High Court considered this contention and rejected it. We agree with the High Court in thinking that even if there was any irregularity in the investigation, that would not vitiate the trial or the conviction, in the absence of evidence that the appellant has been prejudiced."
(l) Even in the recent judgment of the Hon'ble Supreme Court in the case reported in 2013 (2) SCC 162 in the case of N.V.Subbarao vs. State. It was held at para-43 as follows.
"43. It is also contended that there are proved irregularities or deficiencies in conducting investigation, hence, the conviction ought to be set aside. It is held by this Court in a number of decisions including in Kashinath Mondal v.State of W.B. that irregularities or deficiencies in conducting investigation by the prosecution
- 47- are not always fatal to the prosecution case. It was held that(SCC p.705 para 20).
"20. If there is sufficient evidence to establish the substratum of the prosecution case then irregularities which occur due to remissness of the investigating agency, which do not affect the substratum of the prosecution case, should not weigh with the court."
(m) Adverting to the factum of irregular investigation and eventual conviction, the Constitutional Bench of the Hon'ble Supreme Court in the judgment reported in 1970 (3) SCC 513 in the case of M. C. SULKUNTE V. STATE OF MYSORE at para-15 opined thus:
"15..... It has been emphasized in a number of decisions of this Court that to set aside a conviction it must be shown that there has been miscarriage of justice as a result of an irregular investigation".
- 48-
(n) Therefore, these decisions highlight the issue with regard to the prejudice caused to the accused. That the plea of an irregular investigation has to be taken up at the earliest point of time. Not only the plea has to be taken, but it also to be shown that as a result of the irregular investigation, the same has resulted in failure of justice. That there was no adequate opportunity to defend himself against an irregular investigation. Until all these components are present, the accused cannot take undue advantage of an irregular investigation. Therefore, such an irregularity would have to be established and it has to be shown that such an irregularity has resulted in the failure of justice. Since none of these are present, even if there is an error in the investigation, the same does not vitiate the investigation or the trial of the case.
(o) The question of precedence of the FIR has since been referred to a larger Bench as referred to
- 49- herein above. However, even if it is to be considered that there is a delay in lodging the FIR or that the investigation is consequently erroneous, the same would have to be pleaded by the defence. They would have to show that such a delay or an error in investigation has resulted in the failure of justice. Every error in investigation would not lead to overlooking the prosecution case until and unless it is shown that such an error has resulted in prejudice or failure of justice. Unless it is shown, such technicalities would not come in the way of the Court in doing justice. It is always the substance and not the technicalities that would weigh with the court.
16. (a) The next limb of the contention of the appellants is that in order to constitute the offences alleged against them, mens-rea should have to be established. The prosecution would have to show that the appellants were in possession of the counterfeit
- 50- notes and they are intending to use the counterfeit notes as genuine notes. That the prosecution has failed to show that the appellants were knowingly in possession of the counterfeit notes.
(b) One of the objects of inculcating mens-rea or knowledge, about counterfeit notes is to protect unwary citizens. There may be a number of counterfeit notes that are in circulation. If a citizen is in possession of a counterfeit note, which is without his knowledge, he cannot be held to have committed an offence of counterfeiting. That was the object in holding personal knowledge necessary for the offence.
(c) For this purpose, the evidence on record, would have to be scrutinized as to whether the appellants had knowledge that the counterfeit notes were genuine or not. The evidence would show that when PW-2 along with PW-1, 4 and 7 went to the scene of offence, they signaled Accused no.1 and 2 who were
- 51- coming on two different motor cycles to stop, but they sped away. PW-2 chases and catches them. Counterfeit notes were seized from their possession. It was not just one or two notes, but 252 counterfeit notes that were seized from accused nos.1 and 2. This would show that they were in possession of counterfeit notes and they had knowledge of the same. Firstly, is their act of running away when the police tried to stop them. That itself shows a guilty mind. Second, is the fact that they were found in possession of 252 counterfeit notes. 252 counterfeit notes is quite a quantity. It is not just one or two notes but a huge quantity. Therefore, it is apparent that accused nos.1 and 2 had knowledge that they were in possession and intended to use such counterfeit notes as genuine and that is why they did not stop, but fled away.
(d) On the voluntary statement of accused no.1, the prosecution proceeded to the house of accused no.1,
- 52- wherein accused nos.3 to 6 were present. From the possession of Accused No.3, M.O.'s 9 to 17, from Accused No.4, M.O's 18 to 21, from Accused No.5, M.O's 28 to 36 and from Accused No.6, M.O's 22 to 27 were seized in addition to seizure of M.O.37, a country made pistol from Accused No.3. They were scanners, printers, computers, thinners, note pressing machine etc. Accused no.3 to 6 were found in possession of around 526 counterfeit notes. The computer, monitors, printers, scanners, note pressing machine were all intended to be used for the manufacture of counterfeit notes. They were also found in possession of the counterfeit notes. They were caught red handed. It is not the case of the defence nor has it been pleaded nor has it been argued even before this court, that the printers, scanners, etc., were intended for use of business, in respect of their avocation or for any other purpose. In fact the case of the defence is one of plain denial. When the accused have been caught in possession of so many machines,
- 53- including a note pressing machine which were intended to manufacture counterfeit notes, the evidence of the prosecution would clearly show that accused nos.3 to 6 had knowledge of the counterfeit notes.
(e) Therefore, the evidence is clear with regard to the mens-rea so far as accused no.1 to 6 are concerned. Therefore, the contention of the appellants that there is an absence of mens-rea and therefore the offence alleged against them cannot be established, is unacceptable. The evidence on record would show the contrary. Therefore, I'am of the considered view that the contention that there is an absence of mens-rea deserves to be rejected.
17.(a) The next contention of the appellants is that when the counterfeit notes were sent for examination, two reports were furnished by them, which were marked as Exs.P.8 and 9. The appellants contend that the entire case of the prosecution is based on the
- 54- fact that the counterfeit notes were seized from the accused and therefore they are guilty of the charges levelled against them. To establish their case the prosecution has placed reliance on Exs.P.8 and 9. That the author of Exs.P.8 and 9 has not been examined. It is contended by the appellants that any document to be proved would have to be done through the author of the document. Mere production of the document is no proof of it. That such a document cannot be considered as evidence. In support of their case they rely on the Division Bench judgment of this court reported in LAWS (KAR) - 2003-10-33 in the case of State by Lashkar Police Station, Mysore vs M.V.Srinivasa. The Division Bench therein held that there is a presumption of innocence in favour of accused. It is the duty of the prosecution to establish the guilt. It was held that it was absolutely unpardonable on the part of the prosecution not to have summoned the expert to give evidence.
- 55- That it is too hazardous to base a conviction on such a report.
(b) On the other hand, Sri.S.S.Aspalli, the HCGP, relies on the judgment of the Hon'ble Supreme Court reported in 2008 (4) SCC 493, in the case of RAJESH KUMAR AND ANOTHER VS. STATE GOVERNMENT OF NCT OF DELHI, wherein at para-9 of the judgment, it was held that in terms of Section-263(1) and (2) of Cr.P.C., it is not obligatory for such an expert to depose in proceedings before the Court. Further reliance was also placed in the judgment reported in 2007 (3) SCC (Crl) 716, in the case of RAJ KUMAR PRASAD TAMARKAR vs. STATE OF BIHAR AND ANOTHER, wherein at para-42 of the judgment, it was held that even though the finger print expert nor the ballistic expert had been examined, the same by itself would not negate the circumstances which have proved the guilt of the respondent beyond all reasonable doubt.
- 56-
(c) I have considered the contentions and the citations. Time and again the Hon'ble Supreme Court has held that a mere non-examination of an expert would not render the prosecution case to be disbelieved. The prosecution case cannot be thrown out merely on the ground that the expert has not been examined. The Hon'ble Supreme Court in the case of AKSTAR & OTHERS vs. STATE OF UTTARANCHAL reported in 2009 (13) SCC 722, held that mere non-examination of an expert is not necessary to prove the case of the prosecution. In the case of RAJ KUMAR PRASAD TAMARKAR vs. STATE OF BIHAR & ANOTHER reported in 2007 (10) SCC 433, it was held that the non- examination cannot be fatal to the case of the prosecution. In all these cases, it was held that merely because an expert was not examined, the court cannot disbelieve the case of the prosecution. In all these cases it was held that merely because an expert was not
- 57- examined, the court cannot disbelieve the case of the prosecution and acquit the accused. Therefore, mere non-examination of expert is not fatal to the prosecution case.
(d) However, what is of greater importance is with regard to the examination of the expert with regard to section 292 of Cr.P.C., which reads as follows;
"292.Evidence of the officers of the Mint.-
(1) Any document purporting to be a report under the hand of any such gazetted officer of the Mint (officer of any Mint or of any Note printing Press or of any Security Printing Press ( including the officer of the Controller of Stamps and Stationery) or of any Forensic Department or Division of Forensic Science Laboratory or any Government Examiner of Questioned Documents or any State Examiner of Questioned Documents, as the case may be,) as the Central Government may, by notification, specify in this behalf, upon any matter or thing duly submitted to him for examination and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code, although such officer is not called as a witness.
- 58- (2) The Court may, if it thinks fit, summon and examine any such officer as to the subject-matter of his report:
Provided that no such officer shall be summoned to produce any records on which the report is based.
(3) Without prejudice to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872, (1 of 1872) no such officer shall, except with the permission of the Master of the Mint or the India Security Press or the Controller of Stamps and Stationery, as the case may be, be permitted -
(a) to give any evidence derived from any unpublished official records on which the report is based; or
(b) to disclose the nature or particulars of any test applied by him in the course of the examination of the matter or thing.
(e) Therefore, Section-292 of Cr.P.C. would stand directly applicable to the case on hand. Exs.P.8 and 9 are the reports obtained from the Mint namely the Government Printing Press. Section 292 of Cr.P.C., postulates that such reports may be used in the evidence in any inquiry, trial or other proceeding under this code, even though such officer is not called as a
- 59-
witness. It further postulates that the court has a discretion to summon and examine such an officer, if it is so thinks fit. Therefore, when a report has been submitted by the Officer of the Mint, the same is admissible in evidence. Exs.P.8 & 9 are obtained from the Government Press, Nashik. The same is not disputed. Therefore, by applying section 292 of Cr.P.C., it could be held that the examination of the author of Ex.P.8 & 9 is of no consequence. His report Exs.P.8 & 9 could be taken as evidence in a court of law, in terms of the Section 292 of Cr.P.C..
(f) Section 292 refers to the documents/reports of Officers of the Mint etc. There is a greater specialization of the Officers in terms of Section 292 than Section 293 of the Cr.P.C. Therefore Section 292 is a more specific provision than Section 293. The object of Section 292 could be that the Officers of the Mint are considered to be specialized experts. Such specialized
- 60- experts are not too many to find. There are very few of them. They are experts in the restricted field of currency. If they are to be treated as experts as other experts are being treated, they would have to be present in each and every Court to depose about their report. To minimize the difficulty in sparing the services of such experts, section 292 of the Cr.P.C. has been inculcated. It is for this reason that the law postulates that the report submitted by the Officers of the Mint are to be admitted as evidence in a Court of law. Therefore examination of such experts in the face of the report submitted by him, is not necessary. However, in a given case the Court can always summon such witnesses if it so thinks fit. Therefore the provisions of Section 292 itself makes it clear that firstly the report could be accepted as evidence without examining the authority and secondly, if the Court thinks it fit, to summon such an officer to be examined. Under these circumstances, the contention of the defence that
- 61- since the author of Exs.P-8 and P-9 has not been examined, such a report is not admissible in evidence cannot be accepted, in terms of Section 292 of the Cr.P.C.
(g) It is to be further seen that there is no cross- examination with regard to Exhibit - P8 and P9. There was no question put to the prosecution as to why the report cannot be accepted, nor was any request made by the defence to summon the witness. Even though Section-292 of Cr.P.C. provides that a Court can summon such witnesses, the same was not sought for by the defence. Infact the only suggestion put to PW-6, the Inquiring Officer, is that a false case has been foisted on him. Except this, nothing else is stated. There is no specific cross-examination with regard to Exhibits- P8 and P9. In fact it would appear that it was not the case of the appellants at all. Therefore, when the contents of Exhibits-P8 and P9 are not disputed, the
- 62- defence cannot contend that the documents cannot be accepted. Therefore, on this additional ground also, the non-examination of the author of Exhibits - P8 and P9 cannot be said to be fatal to the case of the prosecution. Therefore, the contention of the appellants cannot be accepted.
(h) In the judgment referred to by the appellants in LAWS (KAR) - 2003-10-33 in the case of State by Lashkar Police Station, Mysore Vs.M.V.Srinivasa, Section
-292 of Cr.P.C. was not considered. Hence, it would not come to the aid of the appellants.
18.(a) Ex.P.8 is the report pertaining to the notes seized from accused Nos. 1 & 2. They were sent to the Government press at Nasik. The extract of the report received in terms of Exhibit-P8 reads as follows:
"Crime No.172/2005:
Paper : Ordinary (Double)
Main Watermark : Imitated
- 63-
Security Thread : Imitated
Paper Thickness : Slightly Thicker
Printing Colours : Ink Shades are not matching
Colour Registration : Not Correct
Numbering : Not as per Genuine Note
Quality of Printing : Poor
Conclusion : The referred suspected notes were received in intact sealed condition by hand through Shri.Mallappa Anwar ASI and Krishna HC-367 and are returned in sealed condition after examination of all notes.
These referred suspected notes are COUNTERFEIT NOTES.
ON FRONT : The body printing lacks sharpness. The tint printing is done with water soluble ink and is in the form of dots and not in line pattern as per genuine note design. The word 'M.K.Gandhi' are unsharp and not easily readable. The rosette design in the centre of the notes lacks sharpness and is broken. The R.B.I. seal lacks sharpness and fine details are crude. Intaglio printing is absent.
- 64- ON BACK: The tint design lacks sharpness and printing ink colours do not match with genuine note.
NOTE: The said report is self explanatory and kindly admit the same as evidence under Section-292/293, Chapter XXIII, Cr.P.C. 1973 (No.2 of 1974)."
(b) Exhibit-P9 is the report on the counterfeit notes that was seized from Accused Nos.3 to 6, the extract of which reads as follows:
"Crime No.173/2005:
Paper : Ordinary
Main Watermark : Imitated
Security Thread : Imitated
Paper Thickness : Approximately Same
Printing Colours : Ink Shades are not matching
Colour Registration : Not Correct
Numbering : Not as per Genuine Note
Quality of Printing : Poor
Conclusion : The referred suspected notes were received in intact sealed condition by hand through Shri.Mallappa Anwar ASI and Krishna
- 65- HC-367 and are returned in sealed condition after examination of all notes.
These referred suspected notes are COUNTERFEIT NOTES.
ON FRONT : The body printing lacks sharpness. The tint printing is done with water soluble ink and is in the form of dots and not in line pattern as per genuine note design. The word 'M.K.Gandhi/Mahatma Gandhi' on respective series are unsharp and not easily readable. The rosette design in the centre of the notes lacks sharpness and is broken. The R.B.I. seal lacks sharpness and fine details are crude. Intaglio printing is absent.
ON BACK: The tint design lacks sharpness and printing ink colours do not match with genuine note.
NOTE: The said report is self-explanatory and kindly admit the same as evidence under Section-292/293, Chapter XXIII, Cr.P.C. 1973 (No.2 of 1974)."
- 66-
(c) Therefore, even on examination of Exhibits
-P8 and P9, the same would show that the notes are counterfeit notes. The detailed examination has resulted in the opinion that the said notes are counterfeit notes. Therefore, the prosecution has established the fact that the notes that were seized from the accused, are counterfeit notes.
19. It is contended by the learned counsel for accused no.6, with reference to the cross-examination of the prosecution PW-2. She contends that he has stated that he has not seized the pant pocket and the watch pocket . Therefore, when the pant pocket and watch pocket has not been seized, the seizure is illegal. I'am unable to accept the contention. What has been seized is the currency notes from the possession of accused nos.1 and 2. The question of seizing the pant pocket and watch pocket does not arise for consideration. A pocket from a pant cannot be seized. Even if the contention of
- 67- the appellant is to be accepted, it would probably mean that the pant of the accused was not seized. I'am unable to accept such a contention. Such an interpretation as non-seizure of the pant pocket and watch pocket would not make any dent on the case of the prosecution.
20. It is contended by the learned counsel appearing for the accused no.4, that it would take almost one hour for the panchas to be summoned. That the prosecution have failed to narrate as to how and when the panchas were summoned. However on examination of the evidence of PW-2, it could be seen that the panchas were summoned at about 6.00 a.m. The accused were accosted at 7.15 a.m. Therefore, even if the case sought to be made out by the learned counsel is to be accepted, the panchas were summoned well in advance. Therefore, such a contention cannot be accepted, being opposed to the evidence.
- 68-
21.(a) It is also contended that there is an absence of an independent witness. That the entire case of the prosecution is based on the evidence of PW-2, the complainant, PW-6 the Investigating Officer and PW-7 the writer. They are all police witnesses. There is no independent witness. Therefore, the case of the prosecution cannot be accepted based on their evidence alone. There is no independent witness. No doubt there are no independent eye-witness to the prosecution case. However, that does not mean that, by itself, the case of the prosecution requires to be disbelieved. In the absence of corroborative evidence by an independent eye-witnesses and in the presence of only police witnesses, the burden cast on the Court is that such an evidence would have to be carefully scrutinized by the Court. The Court cannot straightaway accept the evidence, as it accepts the evidence of an independent eye-witness. In the absence of an independent eye- witness, the evidence of the police witness would have
- 69- to be scrutinized. I have thoroughly examined the evidence of the witnesses, PW-2, PW-6 and PW-7. There is no material to disbelieve them nor is it the case of the defence. There is no evidence to support such a contention. No such case was set up by the accused. It is not the case of the defence that they are falsely implicated. No motives are attributed against the prosecution. Their case is one of denial. Under these circumstances, to accept the plea of the appellants that the case of the prosecution should be thrown out since there is no independent witnesses cannot be accepted. Time and again the Hon'ble Supreme Court has held with regard to the manner in which the evidence of the police witnesses requires to be considered.
(b) The Hon'ble Supreme Court in the judgment reported in 2003 (5) SCC 291 in the case of KARAMJIT SINGH Vs. STATE (DELHI ADMINISTRATION) held at para-8 as follows:
- 70-
"8............It is noteworthy that during the course of the cross-examination of the witness the defence did not even give any suggestion as to why they were falsely deposing against the appellant. There is absolutely no material or evidence on record to show that the prosecution witnesses had any reason to falsely implicate the appellant who was none else but a colleague of theirs being a member of the same police force. Therefore, the contention raised by Shri Sinha that on account of non-examination of a public witness, the testimony of the prosecution witnesses who are police personnel should not be relied upon, has hardly any substance and cannot be accepted."
(c) The Hon'ble Supreme Court in the judgment reported in 2011 (12) SCC 428 in the case of C.RONALD AND ANOTHER V.UNION TERRITORY OF ANDAMAN held at para-14 and 15 as follows:
- 71-
"14. There is no principle of law that a statement made in Court by a police personnel has to be disbelieved. It may or may not be believed. It is not that all policemen will tell lies. There are good and bad people in all walks of life. There are good and bad policeman as well. We cannot assume that every statement of a policeman is necessarily false. In the present case, there is nothing to show that the policemen were making false statements in the court. They had no enmity with the accused.
15. Mr.Shanti Bhushan submitted that it is possible that these policemen demanded some money from the accused which they did not give and hence they were falsely implicated. This case was not set up by the accused at any point of time and no such suggestion was even made in the cross- examination."
(d) The Hon'ble Supreme Court in the judgment reported in 2007 (7) SCC 625 in the case of GIRJA
- 72- PRASAD Vs. STATE OF M.P. held at para 24 and 25 as follows:
"24. We are equally unable to uphold the contention of the learned counsel for the appellant that the trial Court was right in not relying upon PW 1 Anup Kumar, the complainant and PW 10 S.K.Tiwari, Inspector of Special Police Establishment. The trial Court, it may be stated, discarded the evidence of these two witnesses by laying down the following proposition of law:
It goes without saying that Anup Kumar and Shri S.K.Tiwari were concerned only with the success of the trap and thus both these persons are interested witnesses. PW 10, Shri Tiwari is Inspector in Lokayukt Office therefore he is highly interested witness."
25. In our judgment, the above proposition does not lay down correct law on the point. It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite
- 73- possible that in a given case, a court of law may not base conviction solely on the evidence of the complainant or a police official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the Court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence."
- 74-
(e) The Hon'ble Supreme Court in the judgment reported in 1999 (3) SCC 337 in the case of AKMAL AHMAD Vs. STATE OF DELHI held at para-12 as follows:
"12. Regarding the first point, it is true that the evidence of PW 8 Sub-Inspector of Police is not supported by any witness other than police personnel. It is now well settled that the evidence of search or seizure made by the police will not become vitiated solely for the reason that the evidence is not supported by any independent witness xxxxx".
(f) The Hon'ble Supreme Court in the judgment reported in 1996 (8) SCC 228 in the case of PATTU LAL Vs. STATE OF PUNJAB held at para- 6 as follows:
"6. ........The circumstances established by clear and clinching evidence only indicate that it was the appellant and no one else who had committed the said murder. It will be appropriate to indicate here that corroboration is a rule of prudence. Evidentiary value of a deposition which is
- 75- otherwise admissible is not just wiped out in the absence of corroboration. Even in the absence of corroboration, a deposition for its quality may be safely accepted to be correct. It will be unfortunate if on account of overemphasis for corroboration, a crime goes unpunished by not giving due weight to uncorroborated evidence when such evidence is otherwise reliable. We, therefore, find no reason to interfere with the conviction and sentence passed against the appellant and the appeal is accordingly dismissed. The appellant has been released on bail during the pendency of this appeal. He should be arrested forthwith to serve out the sentence."
(g) The Hon'ble Supreme Court in the judgment reported in AIR 1956 S.C. 217 in the case of AHER RAJA KHIMA Vs. STATE OF SAURASHTRA held at para-40 as follows:
"40.........The presumption that a person acts honestly applies as much in favour of a police
- 76- officer as of other persons, and it is not a judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration."
(h) The evidence on record does not show that the prosecution witnesses had any enmity with the accused. More importantly, it is not the case of the defence also. It is not their case that they have been falsely implicated. It is not their case that the prosecution had any ill-will against them. Under these circumstances, the testimony of the police witnesses cannot be disbelieved merely because they are police witnesses. The judgments as narrated herein above would clearly enunciate the manner in which the evidence of the police witnesses should be considered. I have scrupulously examined the evidence of PW-2, PW-6 and PW-7. Their evidence is clear and cogent. They had
- 77- no motive against the accused. Their evidence is corroborated by other material on record. Hence, I'am of the considered view that even though they are police witnesses, their evidence cannot be discarded only on that account.
22. Yet another contention advanced is that there was no material to show that the material objects such as printer, scanner, computer etc., were usable in the absence of material to show a power supply to run these machines. Such a contention cannot be accepted, since it is opposed to the material on record. Exhibit-P1 is the document issued by GESCOM, namely Gulburga Electricity Board which shows that power supply was connected to the house wherein accused nos.3 to 6 were accosted. It is therefore established that the house had electric supply and the machines seized were functional. Therefore, such a contention requires to be rejected.
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23.(a) Ultimately, the court would have to decide as to whether the accused had the benefit of a fair trial? Whether there has been a failure of justice? Whether the accused knew for what they are being tried for? Whether they were afforded a full and fair chance to defend themselves?
(b) The accused were aware of the prosecution case and were aware of the material relied upon by the prosecution against them. There is no grievance made out by them that the trial was not fair. Adequate and substantial opportunities were given to the accused to defend themselves. They have also extensively cross- examined the prosecution witnesses.
(c) It is not the case of the accused that there has been a failure of justice or that they were denied an opportunity to defend themselves. Therefore, mere omissions and commissions which have not affected the
- 79- right of the accused, cannot be considered to have resulted in miscarriage of justice. The prosecution case was completely understood by the accused and they were given every opportunity to defend themselves. Under these circumstances, a full and fair trial having been accorded to the accused, the minor irregularities cannot be said to be such, that has led to failure of justice. Moreover, that is not the case of the accused themselves.
24.(a) The Hon'ble Supreme Court in the judgment reported in AIR 1956 SC 116 in the case of Willie (William) Slaney vs. State of Madhya Pradesh in the following paras held as under:
"6. Before we proceed to set out our answer and examine the provisions of the Code, we will pause to observe that the Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of
- 80- endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well- established and well-understood lines that accord with out notions of natural justice.
If he does, if he is tried by a competent court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is 'substantial' compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That broadly speaking, is the basic principle on which the Code is based.
xxxxxxxxxx
13. In our opinion, the key to the problem lies in the words underlined (here in" "). Except where there is something so
- 81- vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice. Some violations of the Code will be so obvious that they will speak for themselves as, for example, a refusal to give the accused a hearing, a refusal to allow him to defend himself, a refusal to explain the nature of the charge to him and so forth.
These go to the foundations of natural justice and would be struck down as illegal forthwith. It hardly matters whether this is because prejudice is then patent or because it is so abhorrent to well-established notions of natural justice that a trial of that kind is only a mockery of a trial and not of the kind envisaged by the laws of our land, because either way they would be struck down at once.
Other violations will not be so obvious and it may be possible to show that having regard to all that occurred no prejudice was occasioned or that there was no reasonable
- 82- probability of prejudice. In still another class of case, the matter may be so near the border line that very slight evidence of a reasonable possibility of prejudice would swing the balance in favour of the accused.
14. This, in our opinion, has been the trend of the more recent decisions of the Privy Council and indeed of l atter-day criminal jurisprudence in England as well as in India. The swing of the pendulum has been away from technicality, and a greater endeavour has been made to regard the substance rather than the shadow & to administer justice fairly and impartially as it should be administered; fair to the accused, fair to the State and fair to the vast mass of the people for whose protection penal laws are made and administered.
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44. xxxxxx It is the substance that we must seek. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can
- 83- be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicalities. Broad vision is required, a nice balancing of the rights of the State and the protection of society in general against protection from harassment to the individual and the risks of unjust conviction.
Every reasonable presumption must be made in favour of an accused person; he must be given the benefit of every reasonable doubt. The same broad principles of justice and fair play must be brought to bear when determining a matter of prejudice as in adjudging guilt. But when all is said and done what we are concerned to see is whether the accused had a fair trial, whether he knew what he was being tried for whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself.
- 84- If all these elements are there and no prejudice is shown the conviction must stand whatever the irregularities whether traceable to the charge or to a want of one."
(b) The Hon'ble Supreme Court in the judgment reported in 2013 (4) SCC 186 in the case of Union of India And Others vs. Ex.Gnr Ajeeth Singh held at para-22 as follows:
"22. So far as the failure of justice is concerned, this Court in Darbara Singh vs. State of Punjab 2012 (10) SCC 476, held that: (SCC p.484, para-21) "21. 'Failure of justice' is an extremely pliable or facile expression, which can be made to find the truth. There would be 'failure of justice'; not only by unjust conviction, but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence. Of course, the rights of the accused have to be kept in mind and also safeguarded, but they should not be overemphasized to the extent of forgetting
- 85- that the victims also have rights. It has to be shown that the accused has suffered some disability or detriment in respect of the protections available to him under the Indian criminal jurisprudence. 'Prejudice' is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial, and not with respect to matters falling outside their scope. Once the accused is able to show that there has been serious prejudice caused to him, with respect to either of these aspects, and that the same has defeated the rights available to him under criminal jurisprudence, then the accused can seek benefit under the orders of the Court."
25. The Hon'ble Supreme Court was of the view that while judging the question of prejudice, as of guilt, courts must act with a broad vision and look to the substance and not to technicalities and their main concern should be to see whether the accused had a fair
- 86- trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself etc. That he has to establish that there has been failure of justice which has in fact occasioned and therefore it has lead to miscarriage of justice.
26. As held herein above, such a plea would have to be taken or established which has led to failure of justice. Herein the accused were accorded a fair trial. The prosecution has placed material in support of its case. The accused were aware what case is made out by the prosecution. They were aware of the material against them. They were aware of the prosecution case. Ample opportunity was given to them. The prosecution was not at all questioned either with regard to delay in filing the FIR, or the irregular investigation or so far as prejudice that is alleged to be caused to them. No
- 87- motives were alleged against the prosecution. No case of a false implication was even suggested. They have not shown that they have suffered prejudice. They have failed to show that the investigation has lead to miscarriage of justice. They were accorded a full and fair trial.
27. The entire material evidence on record, the statements of the witnesses as well as the exhibits have all been examined by this Court. In these circumstances, keeping in mind the evidence and the material on record I 'am of the considered view that the prosecution has established its case beyond all reasonable doubt. The material on record would lead to only one conclusion, that the appellants are guilty of the offences alleged against them. The finding recorded by the Trial Court is just and appropriate. I do not find any failure of justice. The reasoning of the trial court are just and appropriate. It cannot be said that the trial court has misread the
- 88- evidence or there has been any perversity in the finding of the Trial Court.
28. The prosecution case would show that when the accused ran away from the spot, they were accosted and on verification they found counterfeit notes. They were taken to the house of the remaining accused and those accused were in possession of counterfeit notes and also scanner, printing, copier, note, pressing machine etc. The counterfeit notes were sent for examination to Nashik. The report would show that the notes were counterfeit notes. Under these circumstances, the prosecution has established its case. It cannot be said that there is any element of doubt in the prosecution case. Under these circumstances I have no hesitation to conclude that the findings recorded by the trial court are just and appropriate. The prosecution has established its case beyond all reasonable doubts. There are no grounds to allow the appeals.
- 89-
29. The appellants' counsel contend that the appellants are on bail. That the sentence awarded by the trial court is excessive. That they were sentenced to undergo Rigorous imprisonment for six years for each of the offences punishable under Sections 489A, C & D of Indian Penal Code and rigorous imprisonment for one year for the offence punishable under Section 5 read with 25(1)(A) of the Indian Arms Act so far as accused No.3 is concerned. On considering the submissions, I'am of the considered view that the sentence awarded by the trial court is just and appropriate. The maximum sentence is a period of 10 years. The finding recorded by the trial Court is that the prosecution has established its case beyond all reasonable doubt. There is no reasoning as to why the maximum sentence of 10 years was not awarded. However the trial Court was of the view that the sentence of a period of six years would be appropriate. It is stated at the Bar that they were in
- 90- custody for 2 years and 4 months. Considering all these aspects I'am of the considered view that it is inappropriate to interfere with the sentence awarded. In view of the prosecution establishing its case, the sentence awarded would appear to be more lenient than harsh. However, there is no appeal by the state for enhancement of sentence. Hence, the sentence awarded by the trial court is sustained.
30. For the aforesaid reasons, the conviction and sentence awarded by the Trial Court are sustained. Consequently, the appeals being devoid of merits are dismissed.
Sd/-
JUDGE MK/VBC/JJ