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RT^T cbldclloti <;lu1T1l'Ci<liq fulc^l <;|ulTlk<liq (S^T) tNIt. fi.a ^--' <llT^cb STiftcT STPPftT STRT 374 ~^VS ^f^TT •'tffttl HIGH COURT OF CHHATTISGARH AT BILASPUR [SB: Hon'bte Mr.T.P.Sharma.J.I Criminal Apoeal No. €07of 2008 ^ .^ APPELLANTS RESPONDENT APPELLANTS Reman atias Raman and another VERSUS State of Chhattis^irh Criminal Anoeal No. 671 of 2008 AjayDubey andanother VERSUS • RESPONDENT State of Chhattisgarh APPELLANTS Criminal Apneal No. 712 of 2008 Muk h Tlwari VERSUS StateofChhattisgaih \, APPELLANTS Crimlnal Apoeal No. 333 of 2808 Batlu altas Batram VERSUS RESPONDENT State of Chhattisgarh JUDGMENT BE POSTBD FOR PRONOUNCEMENT ON ^ ^.20^ Sd/- T.P. Sharma Judge .(^-^ HIGHCOUe^OF CHHATTISQARHAT BILASPUR fSB; Hon'bleMr.T.P.Sharma.J.l Criminal Appeal No.e07of2008 APPELLANTS 1. w- RESPONDENT 2. VERSUS Reman alias Rsmn^n, S/o Harilal Bhandekar, Aged about 26 yeais, R/o N^llage Sonesarar, P.8.- Khairagarh, District Rajnandgaon (C.G.) Uttam S/o SaUick Ram Bangde Aged about 42 yeass, R/o Ganjtpara, Khairagarh, District RajnandyK»n(C.G.) State of Chhattisgarh through Polfc® Station City KotwaH. Rajnandgaon, DistrictRajnandgaon, C.G. Shri G.S. Ahluwalia counselforttieapprttants. Shri R.R. Sinha P.L forthe respondent/State. Criminal Appeal No. 671 of 2008 APPELLANTS 1. RESPONDENT 2. VERSUS Ajay Dubey son of F>rakash Narayan Dubey, aged about 26 years, resktent of viliage Bajrangpur Poltee Statten CNy Kotwali, Rajnandgaon, C.G. Dayanand alias Golu son of l^iwar DewanQan aged about 21 years, resident of viltage Bajrangpur Navagaon, Police Station Cjty Kotwati, Rajnandgaon, C.G. State of ChhatUsgarh through Police Station City Kotwarfi, Rajnandgaon, District Rajnandgaon, C.G. Shri Minza Hafeez counsel forthe appellanb. Shri R.R. Sinha P.L. for th®respondent/State. Criminal AppeatNo. 712 of 2008 APPELLANT Mukesh Thvart S/o BaUao Prasad Tiwari. aged about24years, R/oVillage Dhaneli, Police Statkwi Khaira$^rh, —2-— VERSUS RESPONDENT Disttrict Rajnandgaon (C.G.) State of ChhatUsgaiti through the District Magistrate, R^nand^ion. Shri Ravindra Agrawal counsel fbr tt>e appeltont Shri R.R. Sinha P.L forthe respondent^tate. Criminal Appeal No. 633 of 2908 APPELLANT VERSUS RESPONDENT Ballu alias Balram S/o lato Lal^Das Sahu Aged about 19 years. R/o Vitlag^ Indamara Hal Dhangaon, P.S. Lalbagh, Tahsil and DistrictRajnandgaon (CG) State of Chhattisgarh through Polfce Station City Ko&fvaU. Rajnandgaon, Ta^tsil and tMsfaict Rajnandgaon, C.G Shri Satish Vemna counsel for the appetlant. Shri R.R. Sinha P.L. forthe respondent/State. CRIMINAL APPEALS UNDERSECTIOII 374(2t OFTHE CODEOF< CRIMINALPROCEDURE JUDGMENT (% .9.2008) Since all the aforesakl appeals arise out of a common judgment dated 24.6.2009 passed by the Sessions Judge, Rajnandgaon in Sessions Trial No. 10/2008, they are disposed of by this common judgment 2. These Criminat Appeals ( CrA, 607/2008, 671/2008, 712G008 and 633/2008) are directod against the judgment ofconvjctk>n and order of sentence dated 24.6.2008 passed by the Sessions Judge Rajnandgaon. in Sessions Trial No. 10/2008 whereby accuaed/appeltants Dayanand alias Golu has been convictod for the offwice punwhabte c^c ..^ '^ \ -^' -^- under section 489 (a), 489 (c) and 489 (d) ofthe Indian Penat code and sentenced to undergo rigorous imprisonmontfor five yearsand pay fine of Rs. 2000/- u/s 489 (a), to undergo rigorous imprisonmwit for three yeare and pay fine of' Rs. 2000/- u/s 489 (c) and to undergo rigorous imprisonment for five yeare and pay fine of Rs. 2000/-. In default of payment of fine he shall undergo simple imprison»nentfor two months tor each offence. Accused/appellants Ajay Dubey and Mukesh Tiwari have been convicted under secttons 489 (b) and 489 (c) of the Indian Pwial Code and sentenced to undergo rigorous imprisonment for five years and pay fine of Rs. 2000/- each u/s 489 (b) and to undergo rigorous imprisonment for three years and pay fine of Rs. 2CXX)/- each u/s 489 (c) of the Indian Penal Code. In default of payment of fine they shall undergo simpl» imprisonmentfor two months each on each count. Accused/appellants Reman htendekar, Uttwn and Ballu alias Balram have been convicted under sections 489 (c) ofthe Indian Penal Code and sentenced to undergo rigorous imprisonment for three years and pay fine of Rs. 2000/-, in default of payment of fine to undergo simple imprisonment for tvro months each. Sentencos impwed on all the accused/appellants shall run concurrwrtly 3. The judgment of th®trial Court is challenged on the ground that without there being anycredible and reliable evktence regarding th®fact that the applicants were in possession of the fake or counterfeit currency notes having the knowtedge that the currency not^ v^iteh wer® cbunterfeit or fake, the triaj Court had committed wi iltegality by conivicting and sentencing them as aforementioned. -^- 4. The case of the prosecution in brief is that on ^.11.2007 when Investigating Officer Pramod Rusiya, ^sistant Sub Inspector, District Crime Branch; Rajnandgaon, was on patrolling duty, he received an information ttiat at viltage Bajrangapur Navagaon,accused/appellant Ajay Dubey was possessing counterfeit currerwy notes. He recorded the Rojnamcha Ex. P-30 and went to the spot i.e. viltage Bajrar^pur Navagaon where he called Panch witnesses namely Kamtesh Dewangan (R/V-3) and Gyaneshwar Mishra (PW-4). Accused/appellant A|ay Dubey informed him regarding the possesston of Computer, Printer, Pencil, Watermark paper with accused/appellant Dayanand aUas Oblur^ Counterfeit currency notes were in his posses®ionand also m possesaon of accused/appellants Ballu alias Balram, Mukesh, Dayanand attas Golu, Reman and Uttam. Dehati Nalishi Ex. P-2A was recorded. Accused/appellant Ajay Dubey made disclosure statement about the possession of computer, printer, watermark |Mipw, peroil with accused/appellant Dayanand alias Golu. Accused/appellants Dayanand, Mukesh, Batlu, Reman and Uttam were having counterfeit currency notes of 500 and 100 denominations in their shops vide Ex. P-3. On the basis of his disclosure statement he produced 10 counterfeit currency notes of 500 denomination and 46 counterfeit currency notes of 100 €ten<wninatJop. Same were recovered vide Ex. P-7. Accused/a(^>ellant Dayanand »'ias Golu made disclosure statement that he was in possesston of cwmputw, printer, pencil, counterfeit currency notes of 100 dwtomination. He ateo stated in the disclosure statement that accused/appellante Remsm, ^ay Dubey and Uttam were also possessing counterfeit currency notes vide Ex. P-5. He produced 8 counterfe'rt currency notes of 1W denominatton, L.G. monftor, CPU, Key board, printer, scanner, copier and mouse which were recovered vide Ex. P-9. Accused/appellant Reman macte disclosure statement Ex. P-4 retetjng to 4 counterfeit currency notes of 500 ^ --S-- denomjnatton in his shop Ex. P-4. Investigating OfBcer Pramod Rusiya along with wifries^ and accused Reman wentto his shqs at Gol Bazar, Khairagarh where he produced 4 CQunterfeit cinrency notes of 500 denomination which were recovered vkte Ex. P-10. AcGused/appetlant h4ukesh Tiwari made disclosure statement re^irding possession of three counterfeit currency notes of 500 denomination arwt 25 countafeit currency notes of 100 denominatfon vid®Ex. P-3 and produced the same which recovered vide Ex. P-8. On tt»basis of disdosure statements of accused/appellant Ajay Dubey (Ex. P-3) and Daywiand alias Golu (Ex. P-5) he went to the house of accused/s^pellarrt Ballu at viNage Dhangaon where he produced two counterfett currency notes of 500 denomination and 14 courrterteit currency notes of 100 denomination which were recovered vide Ex. P-11. On the basis of dfectosure statement of accused/appellant Ajay Dubey and Dayanand Ex. P-3and Ex. P-5 respectively, he went to the house of accused/sqopeltant Uttam at CMt Lines, Khairagarh where he produced 12 counterfeit currency notes of 500 denommation. 5. All the accused/appellants were arrested vide arrest memos Ex. P- 14 to Ex. P-19. Irrtjmation of arrest was sent to the relatives of the accused pereons vide Ex. P-23 to P-27. Investigating Officer issued notice Ex. P-22 to accused Dayanand aljas Golu for produetion of receipt/bill for the instruments recovered from his possession. After recovery of counterfeit notes currency, Dehati Nalishi Ex. P-2A aSong with the documents was sent to Police Station, Kotwali through constabte Tularam (PW-2) where FIR Ex. P-2 was recorded. Investigatfng Officer Pramod Rusia recorded Rojnamcha vide Ex. P-29 after retum from the spot. Seized currency notes were sent to the Chief General ^anager, State Bank of India, IVIain Branch, Rajnandgaon for examinatfon on 1 12.2007 vide Ex. P-1 where B.N. Dhali (R/V-1) opined that the sakt -6- currency notes be sent to Reserve Bank of India for examination. Again on 6.12.2007 they were sent for examination to hira ^ncl h®opined that the currency notes appeared to be counterfeft and therelore, they were sent to Currency Note Press at Nasik vide Ex. P-20, rec^pt thweof is Ex. P-21 and after examinatton ofthesame by V.G. Maru the rcport Ex. P-28 was submitted in whteh he opined that all the currency notes w^re counterfeit and fake. After recording the statements of the wttnesses under section 161 of the Code ofCriminal Procedure and con^>letion of the investigation, charge sheet was fited in the Court of Judicial ^ > Magisfrate First Ctass, Rajnandgaon who in tum committed the case to the Court ofSession, Rajnandgaon where he undertookthetrial. 6. In order to prove the guilt of the accused/appeNants the prosecution has examined as many as eight wtnesses. Statements of the accused persons were recorded under section 313 of the Code of Criminal procedure in which they denied ttie circumstances appearing against them and stated that they are innocent and tove been falsely implicated in the crime in question. 7. After hearing counset for the parties and parusing the evidence adduced by them leamed trial Court has convicted and sentenced the accused/appeltents as mentioned above. 8. Heard counsel for the respective parttes and perused ttie material available on record including the judgmerrt impugned. 9. It is argued by ttie counsel for the accused/appetlants that ttie prosecution has failed to adduce any evidence relating to the fact that the accused/appellants were having knowtodge that the currency netes which they were possessing were the counterfeit and ttiey were intonding to use the same as genuine. It is further argued that no indeps-ndent wrtness, not \, even the police officer has supported the case of the prosecution. B.N. Dhali (PW-1) who is a Bank Officer has specifically stated in his evidence that that currency notes were produced before him in a sealed packet on 1.11.2007 and 6.12.2007. In paragraph No. 5 this witness has specifically stated that one month and five days after 1.11.2007, the same currency notes were again produced before him. Accwdmgto the case of the prosecution the incident took place on 26.11.2907 and prior to that day i.e. on 1.11 2007 it could not have been possible to produce the allegedly seized currency notes before the Bank Officer. It shows that ttie entire prosecution story is concocted one. It is argued that the convictton can rest on the sole testimony of the police ofRcer but in such case^, strict scrutiny of the material available on record is required. In this ras©even the Police Oflicer has not complied the procedure prescribed and rather deviated from rt. Therefore, the statement of the police officer being untrustworthy does not inspire confidence. It is further argued that the entire statement recorded under section 27 of the Evidence Act is not admisstble and only relevant portion regarding discovwy of fact is admissible. Reliance is placed on the decision of Supreme Court in the matter of Geeiaaanda Somiah V. State of Karnataka 1 in which it has been hetd that discovery of fact pursuart to statement gh/es some guarantee that information is true.Relevant portion reads as under' "The Court must ensure the credibility of evidence by potice because this provision is vulnerabte to abuse. It does not, however, mean that any statement macte in temns of the aforesaid section should be seen with susptcion and It cannot be discarded only on the ground that it was made to . a police officer during investigation. The Court has to be cautious that no effort is made by the prosecution to make AIR 2007 SC 1355 -3- out a statement of accused with a simpto case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 of ttie Evidence Act." 10. Further reliance is placed on the decision of Supreme Court in the matter of Umashanker V. State of Chhattisaarh in whichit has been held that knowing or having reasons to believe that currency-notes or bank -notes are forged or counterfeit and buying or receiving from another person or otherwise trafficking in or using as genuine or also possessin® or even intending to use any forged or counterfeit currency-notes or bank- notes is not sufficient to make out a case under section 489-C in the absence of a mens rea. Further reliance is placed on the deciston of Supreme Court in the matter of Bachan Sinah and another v. The State of Puniab3 in which it has been held that by joining two different pieces of two genuine currency notes, would not amount to courrterfeiting. Further reliance is placed on the decision of High Court of Chhatfegarh in the matter of Dineshwar alias Munna V. State of C.G. 4 in which it has been held that for the failure on the part of the to prove that the counterfeit notes made by the appellant were resembling the genuine notes and the resemblance was such as might deceive a person and failure to establish that notes which were half printed on one side on a plain sheet of paper resembled the genuine currency notes in any manner, the accused persons are entitled for acquittal. 11. On the other hand learned counsel for the respondent/State supported the impugned judgment and submitted that accused/appellant Oayanand alias Golu was found in possession of instruments meant for preparation of counterfeit currency notes, computer, printer, scanner ete. All the accused persons were found In possession of the fake or 2AIR2001SC3074 31982 Cri.L.J. 32 4 2006 (3) CGLJ 340 s<( V. -3- counterfeit currency notes <rf 500 and 100 denomination. They did not offer any explanation as to how they got the same. He ftirther argued that though Ihe Panch witnesses have not supported the case of the prosecution yet they are not the stock 'tVftnesses. They have admitted ttieir signatures over more than 15 documents and they have not stated whetiier they signed the said papers under fear or pressure of Police. Statement of the Investigating Officer is trust worthy inspires confidence. Pramod Rusia (PW-6) has specifically stated about the incklent in detail which is sufRcienttodraw an inference that accused/appellants possessed the counterfe'rt currency notes with the intention to circulate them as genuine ones. As far as statement of B.N. Dhali (PW-1) is concemed, he has stated that firstly the currency notes were sent to him on 1.11.2007 and thereafter on 6.12.2007. But in fact the document itself was prepared on 1.12.2007 by A.S. Thakur (PW-8) who has specifically stated in paragraph 7 of his evidence that he sent the currency notes to State Bank of India, Main Branch, Rajnandgaon on 1.12.2007 tor examination and the date mentioned as 1.11.2007 is only a clerical error and it should have been written as 1.12.2007. 12. In order to prove the guilt of the accused/appellants the prosecution is required to establish the following essential ingredients: (i) Accused/appellant Dayanand alias Golu counterfeited the currency notes resembling to the genuine ones and the resemblance was such that a person might be decewed thereby; (ii) counterfert currency notes were found in possession of the accused/appeHants on the date of incident. ftii) They were having the knowledge Uiat ttie currency notes possessed bythem were counterfeit ones; r —t6 (iv) They were possessing the cowiterfeit currency notes with an intention to drculatethe same to be genuine. 13. It is not disputed by the counsel for the accusec^appellants that the currency notes recovered from the accused/appeltants were counterfelt and fake. B.N. Dhali (PW-8) who was the Chief General Manager in the State Bank of India, Main Branch, Rajnandgawi has atso stated tbat he examined the currency notes produced before him by ultraviolet mac^ine and they were not found to be genujne vide Ex. P-1. Thereafter, they were sent to Currency Note Press, Nasik vide Ex. P-20 whlch were received thereby vide Ex. P-21. The said currency notes were examined by V.G. Maru, Class 1 Gazetted Offtcer who vide report Ex. P-28 opined that the currency notes of 500 and 100 denomination were courrterfeit. He is a Class 1 Gazetted Officer posted in the Currency Note Press, Nasik and his report is admissible under sections 292 and 293 of the Code of Criminal Procedure and no formal proof is required. The evidence adduced on behaff of the prosecution to this effect establish^ that the currency notes in question were examined and found to be counterfeit and fake. 14. As regards the possession of counterfeit currency notes wifts the accused/appellants, Pramod Rusia (PW-6) ha®categoricalfy stated IR his evidence that on 26.11 .2007 at about 7 a.m. he received information frorft some informant that some pereons were possessing fato currency notes at Bajrangpur Navagaon village. After recording Rojnamcha Ex. P-30 he went to the spot where he called Kamlesh Dewangan (PW P-3) and Gyaneshwar Mishra (PW-4). He catled accused/anaellant Ajay Dirt>ey and took him into custody. On interrogation, accused/appellant Ajay Dubey made disclosure statement Ex. P-3 that accused/appellants Dayanand alias Golu, Ballu, Mukesh Reman, Uttam and he himself were in possession offake currency notes. Dehati Nalishi Ex. P-2Awas recorded. (S^ On the basis of disclosure statement, accused Ajay Dubey produced 10 fake cunrency notes of 500 denomination and 46 fate& currency not^ of 100 denomination vide Ex. P-7. On the baste of informafion gh/en by accused Ajay Dubey, he called accused/appeltant Dayanand alias Golu and on interrogation he also made disclosure stetemeiit of possessionof LG monitor, scanner, prtnter, copier, pencil and fake currency notes with him. He also disclosed that accused/appellants Mukesh, Ballu, Reman and Uttam were also possessing fake currency not^vide Ex. P-5. On the basis of this disclosure statemerrt, he produced three genyine currency notes of 500 denomination, LG monitor, CPU, printer, scarmer, mouse and 8 fake currency notes of 100 denomination whteh were recowered under Ex. P-9. On the basis of disclosure statement of aforesaid two accused/appellants, ttiis wJtness went to village Dhaneli along witti the wrtnesses and called accused Mukesh Tiwari and took hhn into custody. On interrogation, he made disclosure statement Ihat h®was possesshig three fake currency notes of 500 denominatton and 25 fake currency notes of 100 denomination vkle Ex. P-6 which were recovered vkle Ex. P-8. He also stated that he went to Khairagarh along with witnesses, caJted accused Reman and took him into custody. On interrogation he macte disclosure statement ttiat he was having 4 fake currency notes of 500 denomjnation vide Ex. P-4 wtiich were recovered on production vide Ex. P-10. This witness atso statad that he called accused Uttgam who produced 12 fake currency notes of 500 denomination which wwe seizwl vide Ex. P-12 and Ex. P-13. Thereafter, he werrt to village Dhangaon along with witnesses and calted accusod/appellant Baltu who produced 2 feke currenc^ notes of 500 denomination which were seized vide Ex. P-11. 15. Accused/appellants were arrested vide Ex. P-14 to P-t9 and intimation to this effect was given to their relattves vkle Ex. P-23 to -12- P-26. He sent all the documents and currency notes to Police Station Kotwali, Rajnandgaon through constabte Tularam and Rojnamcha was recorded. PW-3 Kamtesh Dewangan and RAM Gyaneshwar Mishra are the Panch witnesses. Both the Panch witnesses have slated that ttiey are motorcycle mechanics and resjdents of Bajrangpur Navagaon viBage and they have signed the papers at the (nstaroe of Police. Gyaneshwar (PW-4) used to repair the motorcycles of the Police Offteers and they have signed the papers at their instance. These witnesses have been declared hostite. In cross examination they have admitted ^heir photographs attached to the documents. They have not stated anything that they are the stock witnesses or ttiey signed more than 15 papers under threat or pressure of the Police. They are not new to the police as they used to repair their motorcycles and without any reason they sigrwd the papers when they were so assked by th®Poltee. Dealing with the ktentical provision under the NDPS Act in thematter of Ghasita Sahu V. State of Madhva Pradesh 5 the Apex Court has held that in the absence of any suggestion that they are the stock witnesses or they have signed the Panchnama uncter the fear or pressure of ttie police, their negative statement does not affectthe credibilrty ofthe documentsand statements of the other witnesses. In the matter of State of Rajasthan v. Udai Lal6 it has been held by the Apex Court that untess it is stated by the witnesses that they have puttheir signature on tha documents after being put under terror or pressure or without their free consent, their evidence cannot be discarded. 16. Pramod Rusiya (PW-6) has specifically stated that at Bajrangpur Navagaon, he called Panch witnesses namely Kamtesh Dewangan (F1W-3) and Gyaneshwar Mishra (PW-4) who are the resictents of that 5 2008 AIR SCW 1435 6 2008 AIR SCW 3495 \, -/5- village. These Panch witnesses have not stated anywhere that ttley are residents of the area within the juri®dictionof Anusuchit Jati Kalyan Thana but they have stated themselves to be the residents of Bajrangpur Navagaon. It reveals ttiat when the jnvestigating Officer proceeded for the spot, Panch witnesses did not accompany him, they are not residents (rf the area near Anusuchit Jati Kalyan Thana. Pramod Rusiya (PW-6) has taken sufficient precaution by calling the Panch wilnesses from the locality but they have not supported the case of the prosecutton. In this circumstance, only the substantial statement of poltee offteers remains for consideration. Evidence of Pramod Rusiya sund ottier police officers cannot be discarded on the ground that they are poltee offieere and interested in the outcome of the case. In the matter of Anii alias Andva Sad«.sshivNandoskar v. State of Mlaharashtra 'rt has been held by the Apex Court that witnesses being police officers does not by itself create a doubt about their creditworthiness if non examination of Panch witnesses is explained sattsfactorily. Relevant portion reads as under: ulndeed all the five prosecution witr^sses who have been examined in support of search and seizure were members of the rakiing party. They are a8 police offwials. There is, hcwever, no rule of taw that je ewklence of police officials has to be diwarded or that it suffers from some Snherent infirmity. Prudence, however, requires ttwt the e\4dence of the police ofRcials, who are interested in the outeome of the result of the case, neecte to be carefully scrutlnized Qnd independently appreciated. The police oflfcfafo db mrf svflter ftom any cSsability to gsve evfetence and <he mew ^ct thed they afQ police ofKcials db©snot by itself ^ve n'se to any ctoubt stoout thwr crecStwoslfiiness. We have careft///y and critically analysed fhe ev/ctence of all the 5 pofice otKcials. There is notlvng on the record to show that any one of (hem was hosffte to ff» appeltsoTt and ctesp/te lengthy cioss- examinatkfn Uwr ewdence has remained unshaken 'AIRl996 SCW 2943 -/^- ttiroughout. These witnesses hewe cfeposecf in clesy tenns the details of fhe trap that was laid te syprehend tbe app^lant and <he manner in wtvch he was appi^Tended. Their evkfence reganSng search and seizure of Vhe weapons ftom the appettant fs straightlbiward, consistettt and spfcfRc. !t inspires contklwwe and teamed counselfor the eypellant has not been abte to point out any seiwus, let s/one fatal, intirmity in their ewdence. In our opinkyi, ttw factum of search and seizure of the country wacte revofver from the conscious possession of the appelfant has been established by the prosecuQon beyond sny rBasonable doubt The explanation given by ttw prosecutton, for the non- examination of the two Pan<^) witnesses, whk^f is supported by the report Ex. 24 fffed by PW-4 Pl Gaikwad is satisfactory. The ewtetence on the record shows ffwt (he raiding party made sincew efforts to jdn witti them two independent Panchas