that all the witnesses are interested witnesses and they police
personnels. According to him, their evidences are not at alltrustworthy and their evidence should be discarded in its entirety. I
am in respectful disagreement with him on the ground, there is no
legal canon that the evidence of police witnesses should be thrown
out mechanically. It is a rule of caution as well as rule of prudence.
Before accepting their evidence, Court has to weigh the evidence with
a golden scale in its entirety and if it passes through the touchstone
of credibility, in that case their evidence cannot be brushed aside
under the carpet. It is not at all expected that these witnesses would
falsely implicate a person leaving the real culprits. After all they are
last persons to see that the real culprits are brought to book. On
perusal of the evidence of the witnesses I am of the view that their
statements are creditworthy and substantially in the same tone and
tune, which a Court of law cannot ignore
IN THE HIGH COURT AT CALCUTTA
(CRIMINAL APPELLATE JURISDICTION)
C.R.A No. 219 of 2015
Yeasin Sk. Vs.The State of West Bengal
Present : Mr. Justice Siddhartha Chattopadhyay
Dated : 09.09.2016.
Citation: 2017 CRLJ (NOC) 87 Cal
Challenging the legal pregnability of the judgment dated
24.03.2015 and order of conviction dated 25.03.2015 passed by the
learned Additional Sessions Judge, 3rd Court, Malda in Sessions Case
No. 305 of 2013, (corresponding to Sessions Trial No. 36 of 2013) the
appellants have preferred this appeal and prayed for setting aside the
impugned judgment and order of conviction. 2. The main grounds as ventilated by the appellants are such
that the learned Trial Court did not consider the evidence of the
prosecution witnesses in its proper perspectives and wrongly held
that the search and seizure of the Fake Indian Currency Notes have
been proved beyond all reasonable doubts and disputes. The
appellants also contended that the learned Trial Court failed to
consider the loopholes of the investigation so far as search and
seizure, non-production of Malkhana Registrar, and not sealing the
Fake Indian Currency Notes are concerned. Ventilating their such
grievances, the appellants prayed for acquittal.
3. Learned Counsel appearing on behalf of the state
vehemently opposed such contention and submitted that the learned
Trial Court had considered all the material aspects in its proper
perspectives and has come to a correct conclusion which does not
require any sort of interference from this Court.
4. Before delving into the merit of the appeal, factual scenario
is to be revisited. Shorn of unnecessary details, the prosecution case
in a capsulated form is such that to work out an information from
source received on 12.05.2013 at or about 17:35 hours, the police
officers of English Bazar Police Station diarized the matter in GD andwent to the spot to apprehend the Fake Indian Currency Notes
traffickers at or about 18:25 hours and then source identified the
said appellants and accordingly the police personnel encircled them
in presence of two independent persons and on search the police
personnel recovered 100 pieces of notes denomination of which was
Rs.1000/- and 100 pieces of notes denomination of Rs.500 which
were kept in a black coloured plastic carry bag and those were tied
with their waist. The police personnels seized those 400 pieces Fake
Indian Currency Notes under proper seizure list. Thereafter, the
police officer concerned arrested both of them and after coming to
English Bazar Police Station had lodged F.I.R., and in this way law
was set into motion. Soon after registration of F.I.R. the investigating
agency came into operation. In course of investigation, Investigating
Officer has recorded the statements of the available witnesses under
Section 161 Cr.P.C., sent the Fake Indian Currency Notes to R.B.I.
Salbani Mudran Limited for their expert opinion. After getting the
said report he had submitted charge-sheet under Section 489 B and
489 C of the Indian Penal Code.
5. Pursuant to the charge-sheet submitted by the Investigating
Officer, the appellants were hauled up for trial. The defence case as itappears to me from the trend of cross-examination and examination
of the appellants under Section 313 of Cr.P.C. is their innocence and
that nothing has been recovered from their possession. They pleaded
their innocence.
6. On the basis of materials on record, the learned Sessions
Judge has framed the charges under the aforesaid sections and the
same were read over and explained to the appellants to which they
pleaded not guilty and claimed to be tried.
7. Since the witnesses are the eyes and ears of justice it is the
bounden duty of this Court to reassess the evidence and to evaluate
the same in its proper perspectives. For the satisfaction of this Court
an analysis and evaluation of the evidence on record is necessary.
8. P.W. 1 Bapi Chakraborty, leader of the raiding party,
deposed that on the relevant date he was posted at English Bazar
Police Station. He received information from a source that the two
persons were waiting near Sahidullahpur and accordingly he himself
and other police personnels being accompanied by two persons went
there. The source identified the present appellants. Thereafter, the
P.W. 1 challenged the said appellants and after a thorough search
had recovered 300 pieces of Fake Indian Currency Notes,denomination of which were 1000/- and 100 pieces of Fake Indian
Currency Notes, denomination of which were Rs.500/-. In course of
cross-examination he has categorically stated that on search of
Yeasin Sk. they recovered two bundles of Fake Indian Currency Notes
wrapped in a black plastic bag from his waist. In the presence of
witnesses and members of the raiding party, he seized the ‘Fake
Indian Currency Notes’ under a seizure list, prepared labels. He has
also stated that on search of Golam Rosul Khan, he recovered two
bundles Fake Indian Currency Notes which were also seized and
labels were prepared. He has proved the seizure list and also
identified two bundles of Fake Currency Notes, which were recovered
from Yeasin Sk. and also two bundles of Fake Currency Notes, which
were recovered Golam Rosul Khan. The seizure list and the Fake
Currency Notes kept in a sealed bag were made Mat Exhibits. He has
proved the F.I.R. which has been lodged by him.
9. P.W. 2 deposed that he himself, P.W. 3, P.W.7, P.W. 6,
P.W.9, P.W.10 and P.W. 8 along with S.I. Bapi Chakraborty went to
Sahidullahpur Bridge at the relevant point of time. All of them had
disclosed how the recovery of Fake Currency Notes were done. They
have stated that those Fake Currency Notes were recovered from thepossession of the appellants. P.W. 3, lent a full-fledged support to the
prosecution witnesses. P.W. 6, deposed that on the relevant day they
ambushed near the entrance of Sahidullahpur at that time P.W. 1
contacted two local persons and requested them to be present there
at the time of search and seizure. In the presence of those two local
persons Fake Currency Notes were seized from the possession of both
these appellants. P.W. 7, is the constable and P.W. 8 is a home guard
who were also present there. They have also given an ocular
manifestation of the search and seizure. The evidence of P.W. 1 to
P.W. 3, P.W. 6 to P.W. 10 established that they were the members of
the raiding party. At the relevant point of time, they were present
there and in their presence search and seizure were made and it was
properly sealed and labelled.
10. It appears from the evidence of local witnesses that they
have admitted their signatures in the seizure list but ultimately they
did not support the prosecution case. Challenging this part of
evidence, learned Counsel appearing on behalf of the appellant
contended that this is absolutely a false case because the
independent witnesses did not support the prosecution case. In my
humble view, this argument is not tenable on the ground that theydid not deny their signatures in the seizure list and label. More often
than not the local persons sometimes do not come to depose against
an accused, lest they incur wrath of the accused persons. Not only
that there may be other reasons also or not supporting of the
prosecution case. It would be just a futile exercise to delve into the
matter as to why they have turned hostile. Therefore the statement of
P.W.s 4 and 5 cannot be taken into consideration as a gospel truth
that they had put signature at the police station.
11. This apart, the defence has not put any question to the
P.W. 4 regarding his signature on the arrest-cum-inspection came at
Sahidullahpur. This goes to show that this P.W. 4 was very much
present there. Therefore, after scrutiny of the evidence of the local
witnesses I find that the defence could not enure any benefit from
them. In my considered view, evidence of the prosecution witnesses
are clinching and reliable. Expert opinion regarding Fake Indian
Currency Notes is amply proved.
12. Referring to the cross-examination of P.W. 2 (Investigating
Officer) learned Counsel appearing on behalf of the appellant
contended that some of the witnesses did not state, some of the facts
which they have deposed in course of the examination in chief.According to him, these are clearly omissions and the benefit will go
in favour of the appellant.
13. It was also contended that there are enormous omissions
and contradictions in their testimony and the benefit would go in
favour of the accused. At the time of argument learned lawyer for the
appellant wanted to high light some variations, omissions and
contradictions in the evidence and submitted that the benefit of
doubt should go in favour of the accused. It would not be out of
place to mention that credibility of the testimony depends much on
judicial evaluation of totality and not on isolated scrutiny. Omission
to state a fact or circumstances, in the statement referred to under
Section 162(1) of the Cr.P.C. may amount to contradiction if the same
appears to be significant and otherwise relevant having regard to the
context for which such omission occurs. Whether any omission
amounts to contradiction in the present context is purely a question
of fact. The court has to circumspect the facts, consider the common
course of natural events, human conduct and thereafter, consider
whether it is material or significant and whether it is best fitted with
the circumstances or not. It is the guideline of the Hon’ble Apex Court
that even if a person does not say a particular thing before the policeofficer, he may say that fact before the court. If such statement is
trustworthy in that case, there is no legal embargo on the part of the
court to accept that version. This court may rely on the decision
reported in 2003 SCC (Criminal) page 170 (Alamgir –Vs.- State of
N.C.T. Delhi). This court is not oblivious to the fact that sometime
witnesses are overawed with the court atmosphere and sometime
swayed away by sugar coated artful advocacy.
14. Regarding discrepancies it is made crystal clear by the
Hon’ble Apex Court in a decision reported in 2002 Crl.L.J. Page 2645,
wherein the Hon’ble Apex Court held that “in a case of discrepancies
pointed out are in the realm of pebbles, the court should tread upon
it, but if the same are boulders the court should not attempt to jump
over the same.” In this instant case there is a very minor discrepancy,
so I can tread upon it. I am not at all interested to allow the truth to
be scarified at the altar of hyper technicality by making the society as
a casualty.
15. Learned Counsel appearing on behalf of the defence argued
that all the witnesses are interested witnesses and they police
personnels. According to him, their evidences are not at alltrustworthy and their evidence should be discarded in its entirety. I
am in respectful disagreement with him on the ground, there is no
legal canon that the evidence of police witnesses should be thrown
out mechanically. It is a rule of caution as well as rule of prudence.
Before accepting their evidence, Court has to weigh the evidence with
a golden scale in its entirety and if it passes through the touchstone
of credibility, in that case their evidence cannot be brushed aside
under the carpet. It is not at all expected that these witnesses would
falsely implicate a person leaving the real culprits. After all they are
last persons to see that the real culprits are brought to book. On
perusal of the evidence of the witnesses I am of the view that their
statements are creditworthy and substantially in the same tone and
tune, which a Court of law cannot ignore. It is true that due to
passage of time, memory fades. It was also equally true that the truth
is bound to suffer from certain infirmities when projected through
human agencies.
16. On perusal of the entire records and evidence I find certain
omissions and contradictions in the testimonies. But such minor
‘discrepancies’, ‘omissions’ are not fatal for the prosecution case.Therefore their evidences has to be considered in the light of their
sensory perception, their reaction to the normal course of events etc.
Minor omissions do not stand in the way of convicting a real culprit.
If the contradictions and omissions are so vital in nature, which
made the prosecution case absolutely false, only in that case Court
must take it into consideration. Exaggerated devotion to the rule of
benefit of doubt is not desirable.
17. At last the learned Counsel appearing on behalf of the
defence very compassionately submitted that the accused appellants
deserve acquittal under the canopy of benefit of doubt. Judges, lawthinkers
and academicians spent money sleepless nights to define
‘benefit of doubt’. Stretching of imagination based on fanciful ideas,
cannot be brought into picture in disguise of benefit of doubt.
18. Object behind the codification of offences under Fake
Indian Currency Notes is to protect the economy of the country and
also to provide adequate protection to genuine currency notes. More
often than not, the traffickers of such Fake Currency Notes are
associated with subversive activities in the country. It is our common
experience that some of them are closely involved in terrorist
activities also. If this Court considers these aspects alongwithmitigating circumstances then there is no room for taking a lenient
view, which the Trial Court has already considered in its proper
perspectives.
19. Therefore, having regard to the facts and circumstances of
this case and on the basis of cumulative effect of my above mentioned
observation, I am of the view that the factum of search and seizure of
the Fake Indian Currency Notes form the conscious and exclusive
possession of the appellants, and it has been amply proved by the
prosecution to the best judicial satisfaction of this Court.
20. Accordingly, I have no option left with except to put a seal
of approval in the impugned judgment and order of conviction. The
judgment of the learned Trial Court is hereby affirmed. There is no
reason to take a different view. Learned Court below is hereby
directed to take appropriate steps so that the appellants can serve
out the rest part of sentence as awarded by him. Imprisonment
already undergone shall be set off. Accordingly, the criminal appeal is
dismissed.
21. Let a copy of this judgment and LCR be sent to the learned
Court below for information and taking necessary action. 22. Urgent certified photocopy of this order, if applied for, be
supplied to the parties upon compliance with all requisite formalities.
(SIDDHARTHA CHATTOPADHYAY, J.)
A.F.R/N.A.F.R.
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