information given by the accused No.1Ranjana earlier on
24/10/2009, she on 25/10/2009 led the police party and the
panchas to the house of the appellant. That, this witness took the
search of the house i.e. hut of the appellant and found currency
notes of Rs.27,341/ and four fake currency notes of Rs.500/
denomination. The suggestion that he had actually not taken the
accused No.1Ranjana to the house of the appellant, as put to him
in the crossexamination, was denied by him. Interestingly, no
panch witness in support of the alleged seizure of the counterfeit
currency notes from the house of the appellant have been
examined. No reason for nonexamining the same has been given.
Thus, there is only the evidence of the Investigation
Officer Sunil Kale (PW14) in support of the allegation against the
appellant. There is no explanation even before this Court, as to
why the pancha witnesses to the alleged recovery have not been
examined.
I have carefully considered the matter. There is no rule
certainly not of law that the sole testimony of the Investigating
Officer would never be enough/sufficient to prove the fact of
recovery of incriminating articles from the possession of an
accused. However, here the prosecution claims that the recovery
was effected in the presence of two independent witnesses and
none of these two witnesses has been examined. Nonavailability
of evidence is one matter, but availability of evidence and holdingthe same back, is quite another. In the instant case, since no
explanation at all has been given for not having examined
independent witnesses in spite of associating them with the
search operation it would be unsafe to place reliance on the
evidence of P.W.No.14. It would be legitimate to presume, that the
pancha witnesses, if had been examined, would not have
supported the case of the prosecution and that, that is why they
were held back.
In these circumstances, the trial Court ought not to
have convicted the appellant only on the testimony of the
Investigating Officer. This is particularly so, because the
prosecution case, when viewed as a whole, suffers from several
other infirmities and, therefore, clearly the evidence of the
of evidence is one matter, but availability of evidence and holdingthe same back, is quite another. In the instant case, since no
explanation at all has been given for not having examined
independent witnesses in spite of associating them with the
search operation it would be unsafe to place reliance on the
evidence of P.W.No.14. It would be legitimate to presume, that the
pancha witnesses, if had been examined, would not have
supported the case of the prosecution and that, that is why they
were held back.
In these circumstances, the trial Court ought not to
have convicted the appellant only on the testimony of the
Investigating Officer. This is particularly so, because the
prosecution case, when viewed as a whole, suffers from several
other infirmities and, therefore, clearly the evidence of the
Investigating Officer cannot easily and blindly accepted.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL APPEAL NO.863 OF 2012
Manjur Samsuddin Shaikh
V/s.
The State of Maharashtra
CORAM : ABHAY M. THIPSAY J.
DATED : 30TH JANUARY, 2015
Citation; 2015 ALLMR(cri) 4274
01. This appeal is directed against the Judgment of
conviction as delivered by the Adhoc Additional Sessions Judge,
Sewree, Mumbai in Sessions Case No.80 of 2010, in which, the
appellant was the accused No.2. There was one more accused
Smt.Ranjana Shaikh (Accused No.1) in the said Sessions Case.
The Adhoc Additional Sessions Judge found the appellant, as also
the said accused No.1, guilty of offences punishable under Section
489B, 489C of the Indian Penal Code read with Section 34 of the
IPC and sentenced both of them to suffer Rigorous Imprisonment
for five years each and to pay a fine of Rs.5,000/ each, on each
count. The Adhoc Additional Sessions Judge convicted the
accused No.1 Ranjana Shaikh also of an offence punishable under
Section 420 of the IPC read with Section 34 of the IPC and
sentenced her to suffer Rigorous Imprisonment for five years and
to pay a fine of Rs.5,000/ on that count also. The Adhoc
Additional Sessions Judge directed that all the substantive
sentences imposed upon the accused persons shall run
concurrently.
02. Being aggrieved by the said judgment of conviction
and sentences imposed upon him, the appellant had approached
this Court by filing the present appeal.
03. I have heard Mr.Aniket Vagal, the learned counsel for
the appellant. I have heard Ms.S.S.Kaushik, the learned Additional
Public Prosecutor for the respondent/State. With their assistance,
I have gone through the evidence adduced during the trial. I have
carefully gone the impugned judgment.
04. The prosecution case as reflected from the 'brief facts
of the case', as appearing in Column No.16 of the printed
prescribed proforma of the police report/charge sheet, is as
under :
That the accused No.1Smt.Ranjana Babu Shaikh, aged
about 19 years, on 23/10/2009 at about 8.20 p.m. at Senapati
Bapat Road, Dadar was in possession of and had used as genuine,
a forged or counterfeit currency note of Rs.500/ denomination
and had purchased a frock from the First InformantDinesh
Shrivastav a Hawker by using the same. That, the appellant had
kept in his possession four forged or counterfeit currency notes of
Rs.500/ denomination knowing them to be forged and with the
intention of using the same as genuine.
05. As this does not give sufficient idea as to the nature of
the allegation against the said accused No.1 Ranjana and the
present appellant, it would be appropriate to state the facts of the
prosecution case by giving the relevant details.
06. Prosecution case is that on 23/10/2009 Dinesh
Shrivastav, who is a hawker, was carrying on his business at
Senapati Bapat Marg as usual. That, at about 8.20 p.m., the
accused No.1 Ranjana came to him and purchased a frock for one
year old girl child. The price of the said frock was Rs.60/ and in
order to pay the same, accused No.1 Ranjana gave a currency note
of Rs.500/ to the said Dinesh. Dinesh took the note and gave an
amount of Rs.440/ consisting of four notes of Rs.100/
denomination and four currency notes of Rs.10/ denomination
back to her. However, after doing this, Dinesh Shrivastav
suspected the genuineness of currency note of Rs.500/, which had
been given to him by the accused No.1. He felt that it was thicker
and more rough than a normal note. He then examined the same
in the light and was convinced that it was counterfeit. He,
therefore, stopped accused No.1 and told her that the note, that
had been given by her, was counterfeit. On this, the accused
started giving some evasive replies. Some persons assembled
there and among them, there was one constable from Shivaji Park
Police Station one Mr.Mhasye, who was taking rounds. Dinesh
informed him about the matter. Then he took Dinesh and accused
No.1 Ranjana to the Shivaji Park Police Station, where the report
lodged by Shrivastav was recorded and treated as the First
Information Report; and a case in respect of offences punishable
under Section 489B, 489C and 420 of the IPC came to be
registered against the accused No.1.
07. The personal search of accused No.1 Ranjana was
taken under a panchanama. Thereafter, she gave certain
information to the police, from which it was gathered by them that
accused No.1Ranjana had earlier also used counterfeit currency
notes of Rs.500/ denomination as genuine and had, by using such
notes, purchased a number of articles from other hawkers on the
same day. In the personal search of accused No.1 Ranjana, certain
articles purchased by her and some cash were recovered.
08. In the course of further investigation Ranjana Shaikh
disclosed some information on 24/10/2009, pursuant to which the
police party and panchas were led to the house of the appellant at
Borivali. When the search of the house of the appellant was taken
currency notes of Rs.27,341/ and four counterfeit currency notes
of Rs.500/ denomination were found. The same were taken
charge of under a panchanama.
09. The notes suspected to be counterfeit were sent to the
Currency Printing Press for examination and opinion. On
completion of investigation, a charge sheet came to be filed and
the said accused No.1 and the appellant came to be prosecuted.
10. The prosecution examined 14 witnesses during the
trial. Dinesh Shrivastavthe First Informant is the first witness for
the prosecution. P.W.Nos.2,4,5,6,7,8 and 9 are the hawkers, who
had allegedly received counterfeit currency notes from the accused
No.1Ranjana on 23/10/2009 before Ranjana was apprehended at
the instance of the First InformantDinesh Shrivastav. P.W.No.3
Thakur Chaurasiya is a panch in respect of seizure of the
counterfeit currency note supposedly handed over to the police by
the P.W.No.1. P.W.No.10 is a panch in respect of the panchanama
regarding the personal search of the accused No.1 Ranjana.
11. P.W.No.12Mohan Dabholkar is the SubInspector of
police attached to Shivaji Park Police Station at the material time
who has registered a FIR.
12. P.W.No.13Balu Phule is a panch in respect of the
certain information allegedly given by the accused No.1Ranjana,
which led to the recovery of some counterfeit currency notes from
some hawkers.
13. The evidence of these witnesses is not material in the
context of the allegation against the appellant.
14. The only relevant witnesses in the context of the case
against the appellant are P.W.No.11Mukesh Yadav and P.W.No.14
Sunil Kale the Investigation Officer.
15. Mukeh Yadav (PW11) is residing by the side of the
appellant. In fact, he is said to be the tenant of the appellant. He
did speak that the police had come to the house of the appellant
and had searched his house, but said that nothing was found in
the house of the appellant. His evidence shows that one 'Hayat'
had told him that he was doing the work of circulating counterfeit
currency notes. He, however, did not support the prosecution with
respect to the alleged recovery of counterfeit currency notes from
the house of the appellant and was declared hostile.
16. Mr.Sunil Kale (PW14) has stated that pursuant to the
information given by the accused No.1Ranjana earlier on
24/10/2009, she on 25/10/2009 led the police party and the
panchas to the house of the appellant. That, this witness took the
search of the house i.e. hut of the appellant and found currency
notes of Rs.27,341/ and four fake currency notes of Rs.500/
denomination. The suggestion that he had actually not taken the
accused No.1Ranjana to the house of the appellant, as put to him
in the crossexamination, was denied by him. Interestingly, no
panch witness in support of the alleged seizure of the counterfeit
currency notes from the house of the appellant have been
examined. No reason for nonexamining the same has been given.
17. Thus, there is only the evidence of the Investigation
Officer Sunil Kale (PW14) in support of the allegation against the
appellant. There is no explanation even before this Court, as to
why the pancha witnesses to the alleged recovery have not been
examined.
18. I have carefully considered the matter. There is no rule
certainly not of law that the sole testimony of the Investigating
Officer would never be enough/sufficient to prove the fact of
recovery of incriminating articles from the possession of an
accused. However, here the prosecution claims that the recovery
was effected in the presence of two independent witnesses and
none of these two witnesses has been examined. Nonavailability
of evidence is one matter, but availability of evidence and holding
the same back, is quite another. In the instant case, since no
explanation at all has been given for not having examined
independent witnesses in spite of associating them with the
search operation it would be unsafe to place reliance on the
evidence of P.W.No.14. It would be legitimate to presume, that the
pancha witnesses, if had been examined, would not have
supported the case of the prosecution and that, that is why they
were held back.
19. In these circumstances, the trial Court ought not to
have convicted the appellant only on the testimony of the
Investigating Officer. This is particularly so, because the
prosecution case, when viewed as a whole, suffers from several
other infirmities and, therefore, clearly the evidence of the
Investigating Officer cannot easily and blindly accepted.
20. The Investigating Officer (PW14) did not produce any
entries in the Lockup Register to show that the accused No.1
Ranjana had indeed been taken up out of the lockup. He admitted
that had she been taken out on 25/10/2009, there ought to have
been entry in the Lockup Register in that regard. Thus, apart not
seeking corroboration from independent witnesses, Mr.Kale
(PW14) did not seek to support his statement by production of
even the police record.
21. As a matter of fact, the learned Additional Public
Prosecutor fairly submitted that this has been a case where benefit
of doubt should have been given to the appellant and he should
have been acquitted.
22. The learned Additional Public Prosecutor further
submits that since the entire evidence has been considered and
since it shows that there is no satisfactory material to prove the
guilt even of the accused No.1, the accused No.1Ranjana also may
be given benefit of doubt and acquitted, although she has not
chosen to file any appeal. Since such a suggestion having come
from the learned Additional Public Prosecutor herself, I have
considered this aspect of the matter.
23. It may be recalled that the case against the accused No.
1Ranjana is to the effect that she, on 23/10/2009 had been
purchasing different articles, from the hawkers, by giving
counterfeit currency notes of Rs.500/ to each of them. Thus, the
evidence shows that on 23/10/2009, before she came to be
apprehended at the instance of Dinesh, she had purchased various
articles from Shetty (PW2), Pawar (PW4), Khan (PW5), Shukla
(PW6), Das (PW7), Gundal (PW8) and Mohite (PW9). The
evidence of these witnesses shows that they all each of them
had received a counterfeit currency note of Rs.500/ denomination
from the accused No.1 Ranjana. They had given articles to her of
different values, and had returned the balance amount. Thus,
according to Shrivastav (PW1) he gave a frock worth Rs.60/ and
returned an amount of Rs.440/ back to her. Similarly, Shetty
(PW2) gave a frock worth Rs.70/ and returned an amount of Rs.
430/ back to her. So also, Pawar (PW4) gave a petticoat worth
Rs.50/ and returned an amount of Rs.450/ back to her. Khan
(PW5) gave one plastic plate worth Rs.60/ and returned an
amount of Rs.440/ back to her. Shukla (PW6) gave a ladies purse
worth Rs.50/ and returned an amount of Rs.450/ back to her.
Das (PW7) gave one ladies maxi worth Rs.100/ and returned an
amount of Rs.400/ back to her. Gundal (PW8) gave a bedsheet
worth Rs.70/ and returned an amount of Rs.430/ back to her,
and lastly, Mohite (PW9) gave a pakkad worth Rs.50 and returned
an amount of Rs.450/ back to her.
24. Thus, as per the prosecution case itself, Ranjana was
supposed to be having an amount of Rs.3490/ of genuine
currency with her, when she came to be apprehended as aforesaid.
However, whether this amount was actually so found on her
person, when she apprehended, has not been spoken at all by
Meena Jadhav (PW10), who is supposed to have witnessed the
personal search of the accused No.1 Ranjana. Meena Jadhav's
(PW10) evidence shows that the police had seized some articles
and a currency note of Rs.500/ denomination from the accused
No.1 Ranjana, but it does not show that any genuine currency was
found with Accused No.1 Ranjana. The evidence of Mohan
Dabholkar (PW12), who is supposed to have taken the search of
accused No.1Ranjana in the presence of witnesses, speaks only of
recovery of a currency note of Rs.500/ denomination, some
articles and four notes of Rs.100/ denomination and four notes of
Rs.10/ denomination. The case of the prosecution is that the
currency note of Rs.500/ is a counterfeit one and thus the
recovery of genuine currency from the person of accused No.1
Ranjana is only of Rs.440/ as per the evidence of Mr.Dabholkar
(PW12). As aforesaid, if the evidence of P.W.Nos.1,2,4,5,6,7,8 and
9 is to be accepted, Ranjana ought to be having genuine currency
of Rs.3490/ with her. No light has been thrown on as to how this
currency has not been found on the person of accused No.1
Ranjana. This, therefore, creates a doubt about the truth of the
prosecution case.
25. Even the evidence of P.W.No.3 Thakur Chaursiya does
not advance the prosecution case against accused No.1 Ranjana in
any manner. This witness a panch was supposed to depose
about the alleged fact that the note allegedly received by Dinesh
(PW1) from accused No.1 Ranjana was produced by Dinesh (PW1)
before the police and was seized in the presence of this witness.
His evidence, however, indicates that the police had already seized
the currency note and, that the same was shown to him by the
police. His evidence does not show that the production of the note
by Dinesh (PW1) and its taking charge by the police took place in
his presence.
26. Moreover, the notes allegedly given by Ranjana to
P.W.Nos.1,2 and 4 to 9 have not been recovered at all. It is
because these witnesses stated that they had circulated the notes
not being aware of the fact that they were counterfeit. In the
absence of recovery of notes, it would not be possible to conclude
that Ranjana had indeed given counterfeit currency notes to these
persons and was circulating the same. This creates a further doubt
about the truth of the prosecution version.
27. The evidence of Dinesh Shrivastav (PW1) shows that
when his dispute with accused No.1 Ranjana was going on,
constable Mhasye of Shivaji Park Police Station was there and that,
it was he who took Ranjana and him to the Shivaji Park Police
Station. However, this constable Mhasye has not been examined
as a witness. The evidence of PSIMr.Dabholkar (PW12) shows as
if Dinesh Shrivastav came to the police station on his own; and
does not even refer to constable Mhasye.
28. In my opinion, even the case against accused No.1
Ranjana was not satisfactorily proved. The trial Judge ought to
have given benefit of doubt to her and ought to have acquitted her.
29. It is well settled that the benefit of the conclusion
arrived by an appellate Court can be extended even to an accused,
who has not appealed. In the instant case, I find that the accused
No.1 Ranjana has been rather unfortunate as though she was
ordered to be released on bail by the appellate Court, she could
not avail of the same, apparently because of poverty, and perhaps,
has already undergone the sentence. However, since I have come
to a conclusion that she should have been given benefit of doubt
and acquitted, it would be proper to interfere with her conviction
also.
30. The appeal is allowed.
31. The impugned judgment and order of the conviction of
the appellant as recorded by the Adhoc Additional Sessions
Judge, Sewree, Mumbai is set aside.
32. The appellant stands acquitted.
33. Fine, if paid, be refunded to him.
34. Though the original accused No.1 Smt.Ranjana Babu
Shaikh has not preferred any appeal, after having gone through
the record and proceedings of the case, I am of the opinion that
the conviction of the said accused No.1 is also not proper and
legal. Therefore, for the reasons, which are discussed in this
Judgment, the said accused No.1 is also acquitted.
35. If the accused No.1 is in custody, she shall be released
forthwith, unless required to be detained in some other case.
36. Fine, if paid, be refunded to her.
37. The appeal is disposed of in the aforesaid terms.
(ABHAY M. THIPSAY J.)
APPELLATE SIDE
CRIMINAL APPEAL NO.863 OF 2012
Manjur Samsuddin Shaikh
V/s.
The State of Maharashtra
CORAM : ABHAY M. THIPSAY J.
DATED : 30TH JANUARY, 2015
Citation; 2015 ALLMR(cri) 4274
01. This appeal is directed against the Judgment of
conviction as delivered by the Adhoc Additional Sessions Judge,
Sewree, Mumbai in Sessions Case No.80 of 2010, in which, the
appellant was the accused No.2. There was one more accused
Smt.Ranjana Shaikh (Accused No.1) in the said Sessions Case.
The Adhoc Additional Sessions Judge found the appellant, as also
the said accused No.1, guilty of offences punishable under Section
489B, 489C of the Indian Penal Code read with Section 34 of the
IPC and sentenced both of them to suffer Rigorous Imprisonment
for five years each and to pay a fine of Rs.5,000/ each, on each
count. The Adhoc Additional Sessions Judge convicted the
accused No.1 Ranjana Shaikh also of an offence punishable under
Section 420 of the IPC read with Section 34 of the IPC and
sentenced her to suffer Rigorous Imprisonment for five years and
to pay a fine of Rs.5,000/ on that count also. The Adhoc
Additional Sessions Judge directed that all the substantive
sentences imposed upon the accused persons shall run
concurrently.
02. Being aggrieved by the said judgment of conviction
and sentences imposed upon him, the appellant had approached
this Court by filing the present appeal.
03. I have heard Mr.Aniket Vagal, the learned counsel for
the appellant. I have heard Ms.S.S.Kaushik, the learned Additional
Public Prosecutor for the respondent/State. With their assistance,
I have gone through the evidence adduced during the trial. I have
carefully gone the impugned judgment.
04. The prosecution case as reflected from the 'brief facts
of the case', as appearing in Column No.16 of the printed
prescribed proforma of the police report/charge sheet, is as
under :
That the accused No.1Smt.Ranjana Babu Shaikh, aged
about 19 years, on 23/10/2009 at about 8.20 p.m. at Senapati
Bapat Road, Dadar was in possession of and had used as genuine,
a forged or counterfeit currency note of Rs.500/ denomination
and had purchased a frock from the First InformantDinesh
Shrivastav a Hawker by using the same. That, the appellant had
kept in his possession four forged or counterfeit currency notes of
Rs.500/ denomination knowing them to be forged and with the
intention of using the same as genuine.
05. As this does not give sufficient idea as to the nature of
the allegation against the said accused No.1 Ranjana and the
present appellant, it would be appropriate to state the facts of the
prosecution case by giving the relevant details.
06. Prosecution case is that on 23/10/2009 Dinesh
Shrivastav, who is a hawker, was carrying on his business at
Senapati Bapat Marg as usual. That, at about 8.20 p.m., the
accused No.1 Ranjana came to him and purchased a frock for one
year old girl child. The price of the said frock was Rs.60/ and in
order to pay the same, accused No.1 Ranjana gave a currency note
of Rs.500/ to the said Dinesh. Dinesh took the note and gave an
amount of Rs.440/ consisting of four notes of Rs.100/
denomination and four currency notes of Rs.10/ denomination
back to her. However, after doing this, Dinesh Shrivastav
suspected the genuineness of currency note of Rs.500/, which had
been given to him by the accused No.1. He felt that it was thicker
and more rough than a normal note. He then examined the same
in the light and was convinced that it was counterfeit. He,
therefore, stopped accused No.1 and told her that the note, that
had been given by her, was counterfeit. On this, the accused
started giving some evasive replies. Some persons assembled
there and among them, there was one constable from Shivaji Park
Police Station one Mr.Mhasye, who was taking rounds. Dinesh
informed him about the matter. Then he took Dinesh and accused
No.1 Ranjana to the Shivaji Park Police Station, where the report
lodged by Shrivastav was recorded and treated as the First
Information Report; and a case in respect of offences punishable
under Section 489B, 489C and 420 of the IPC came to be
registered against the accused No.1.
07. The personal search of accused No.1 Ranjana was
taken under a panchanama. Thereafter, she gave certain
information to the police, from which it was gathered by them that
accused No.1Ranjana had earlier also used counterfeit currency
notes of Rs.500/ denomination as genuine and had, by using such
notes, purchased a number of articles from other hawkers on the
same day. In the personal search of accused No.1 Ranjana, certain
articles purchased by her and some cash were recovered.
08. In the course of further investigation Ranjana Shaikh
disclosed some information on 24/10/2009, pursuant to which the
police party and panchas were led to the house of the appellant at
Borivali. When the search of the house of the appellant was taken
currency notes of Rs.27,341/ and four counterfeit currency notes
of Rs.500/ denomination were found. The same were taken
charge of under a panchanama.
09. The notes suspected to be counterfeit were sent to the
Currency Printing Press for examination and opinion. On
completion of investigation, a charge sheet came to be filed and
the said accused No.1 and the appellant came to be prosecuted.
10. The prosecution examined 14 witnesses during the
trial. Dinesh Shrivastavthe First Informant is the first witness for
the prosecution. P.W.Nos.2,4,5,6,7,8 and 9 are the hawkers, who
had allegedly received counterfeit currency notes from the accused
No.1Ranjana on 23/10/2009 before Ranjana was apprehended at
the instance of the First InformantDinesh Shrivastav. P.W.No.3
Thakur Chaurasiya is a panch in respect of seizure of the
counterfeit currency note supposedly handed over to the police by
the P.W.No.1. P.W.No.10 is a panch in respect of the panchanama
regarding the personal search of the accused No.1 Ranjana.
11. P.W.No.12Mohan Dabholkar is the SubInspector of
police attached to Shivaji Park Police Station at the material time
who has registered a FIR.
12. P.W.No.13Balu Phule is a panch in respect of the
certain information allegedly given by the accused No.1Ranjana,
which led to the recovery of some counterfeit currency notes from
some hawkers.
13. The evidence of these witnesses is not material in the
context of the allegation against the appellant.
14. The only relevant witnesses in the context of the case
against the appellant are P.W.No.11Mukesh Yadav and P.W.No.14
Sunil Kale the Investigation Officer.
15. Mukeh Yadav (PW11) is residing by the side of the
appellant. In fact, he is said to be the tenant of the appellant. He
did speak that the police had come to the house of the appellant
and had searched his house, but said that nothing was found in
the house of the appellant. His evidence shows that one 'Hayat'
had told him that he was doing the work of circulating counterfeit
currency notes. He, however, did not support the prosecution with
respect to the alleged recovery of counterfeit currency notes from
the house of the appellant and was declared hostile.
16. Mr.Sunil Kale (PW14) has stated that pursuant to the
information given by the accused No.1Ranjana earlier on
24/10/2009, she on 25/10/2009 led the police party and the
panchas to the house of the appellant. That, this witness took the
search of the house i.e. hut of the appellant and found currency
notes of Rs.27,341/ and four fake currency notes of Rs.500/
denomination. The suggestion that he had actually not taken the
accused No.1Ranjana to the house of the appellant, as put to him
in the crossexamination, was denied by him. Interestingly, no
panch witness in support of the alleged seizure of the counterfeit
currency notes from the house of the appellant have been
examined. No reason for nonexamining the same has been given.
17. Thus, there is only the evidence of the Investigation
Officer Sunil Kale (PW14) in support of the allegation against the
appellant. There is no explanation even before this Court, as to
why the pancha witnesses to the alleged recovery have not been
examined.
18. I have carefully considered the matter. There is no rule
certainly not of law that the sole testimony of the Investigating
Officer would never be enough/sufficient to prove the fact of
recovery of incriminating articles from the possession of an
accused. However, here the prosecution claims that the recovery
was effected in the presence of two independent witnesses and
none of these two witnesses has been examined. Nonavailability
of evidence is one matter, but availability of evidence and holding
the same back, is quite another. In the instant case, since no
explanation at all has been given for not having examined
independent witnesses in spite of associating them with the
search operation it would be unsafe to place reliance on the
evidence of P.W.No.14. It would be legitimate to presume, that the
pancha witnesses, if had been examined, would not have
supported the case of the prosecution and that, that is why they
were held back.
19. In these circumstances, the trial Court ought not to
have convicted the appellant only on the testimony of the
Investigating Officer. This is particularly so, because the
prosecution case, when viewed as a whole, suffers from several
other infirmities and, therefore, clearly the evidence of the
Investigating Officer cannot easily and blindly accepted.
20. The Investigating Officer (PW14) did not produce any
entries in the Lockup Register to show that the accused No.1
Ranjana had indeed been taken up out of the lockup. He admitted
that had she been taken out on 25/10/2009, there ought to have
been entry in the Lockup Register in that regard. Thus, apart not
seeking corroboration from independent witnesses, Mr.Kale
(PW14) did not seek to support his statement by production of
even the police record.
21. As a matter of fact, the learned Additional Public
Prosecutor fairly submitted that this has been a case where benefit
of doubt should have been given to the appellant and he should
have been acquitted.
22. The learned Additional Public Prosecutor further
submits that since the entire evidence has been considered and
since it shows that there is no satisfactory material to prove the
guilt even of the accused No.1, the accused No.1Ranjana also may
be given benefit of doubt and acquitted, although she has not
chosen to file any appeal. Since such a suggestion having come
from the learned Additional Public Prosecutor herself, I have
considered this aspect of the matter.
23. It may be recalled that the case against the accused No.
1Ranjana is to the effect that she, on 23/10/2009 had been
purchasing different articles, from the hawkers, by giving
counterfeit currency notes of Rs.500/ to each of them. Thus, the
evidence shows that on 23/10/2009, before she came to be
apprehended at the instance of Dinesh, she had purchased various
articles from Shetty (PW2), Pawar (PW4), Khan (PW5), Shukla
(PW6), Das (PW7), Gundal (PW8) and Mohite (PW9). The
evidence of these witnesses shows that they all each of them
had received a counterfeit currency note of Rs.500/ denomination
from the accused No.1 Ranjana. They had given articles to her of
different values, and had returned the balance amount. Thus,
according to Shrivastav (PW1) he gave a frock worth Rs.60/ and
returned an amount of Rs.440/ back to her. Similarly, Shetty
(PW2) gave a frock worth Rs.70/ and returned an amount of Rs.
430/ back to her. So also, Pawar (PW4) gave a petticoat worth
Rs.50/ and returned an amount of Rs.450/ back to her. Khan
(PW5) gave one plastic plate worth Rs.60/ and returned an
amount of Rs.440/ back to her. Shukla (PW6) gave a ladies purse
worth Rs.50/ and returned an amount of Rs.450/ back to her.
Das (PW7) gave one ladies maxi worth Rs.100/ and returned an
amount of Rs.400/ back to her. Gundal (PW8) gave a bedsheet
worth Rs.70/ and returned an amount of Rs.430/ back to her,
and lastly, Mohite (PW9) gave a pakkad worth Rs.50 and returned
an amount of Rs.450/ back to her.
24. Thus, as per the prosecution case itself, Ranjana was
supposed to be having an amount of Rs.3490/ of genuine
currency with her, when she came to be apprehended as aforesaid.
However, whether this amount was actually so found on her
person, when she apprehended, has not been spoken at all by
Meena Jadhav (PW10), who is supposed to have witnessed the
personal search of the accused No.1 Ranjana. Meena Jadhav's
(PW10) evidence shows that the police had seized some articles
and a currency note of Rs.500/ denomination from the accused
No.1 Ranjana, but it does not show that any genuine currency was
found with Accused No.1 Ranjana. The evidence of Mohan
Dabholkar (PW12), who is supposed to have taken the search of
accused No.1Ranjana in the presence of witnesses, speaks only of
recovery of a currency note of Rs.500/ denomination, some
articles and four notes of Rs.100/ denomination and four notes of
Rs.10/ denomination. The case of the prosecution is that the
currency note of Rs.500/ is a counterfeit one and thus the
recovery of genuine currency from the person of accused No.1
Ranjana is only of Rs.440/ as per the evidence of Mr.Dabholkar
(PW12). As aforesaid, if the evidence of P.W.Nos.1,2,4,5,6,7,8 and
9 is to be accepted, Ranjana ought to be having genuine currency
of Rs.3490/ with her. No light has been thrown on as to how this
currency has not been found on the person of accused No.1
Ranjana. This, therefore, creates a doubt about the truth of the
prosecution case.
25. Even the evidence of P.W.No.3 Thakur Chaursiya does
not advance the prosecution case against accused No.1 Ranjana in
any manner. This witness a panch was supposed to depose
about the alleged fact that the note allegedly received by Dinesh
(PW1) from accused No.1 Ranjana was produced by Dinesh (PW1)
before the police and was seized in the presence of this witness.
His evidence, however, indicates that the police had already seized
the currency note and, that the same was shown to him by the
police. His evidence does not show that the production of the note
by Dinesh (PW1) and its taking charge by the police took place in
his presence.
26. Moreover, the notes allegedly given by Ranjana to
P.W.Nos.1,2 and 4 to 9 have not been recovered at all. It is
because these witnesses stated that they had circulated the notes
not being aware of the fact that they were counterfeit. In the
absence of recovery of notes, it would not be possible to conclude
that Ranjana had indeed given counterfeit currency notes to these
persons and was circulating the same. This creates a further doubt
about the truth of the prosecution version.
27. The evidence of Dinesh Shrivastav (PW1) shows that
when his dispute with accused No.1 Ranjana was going on,
constable Mhasye of Shivaji Park Police Station was there and that,
it was he who took Ranjana and him to the Shivaji Park Police
Station. However, this constable Mhasye has not been examined
as a witness. The evidence of PSIMr.Dabholkar (PW12) shows as
if Dinesh Shrivastav came to the police station on his own; and
does not even refer to constable Mhasye.
28. In my opinion, even the case against accused No.1
Ranjana was not satisfactorily proved. The trial Judge ought to
have given benefit of doubt to her and ought to have acquitted her.
29. It is well settled that the benefit of the conclusion
arrived by an appellate Court can be extended even to an accused,
who has not appealed. In the instant case, I find that the accused
No.1 Ranjana has been rather unfortunate as though she was
ordered to be released on bail by the appellate Court, she could
not avail of the same, apparently because of poverty, and perhaps,
has already undergone the sentence. However, since I have come
to a conclusion that she should have been given benefit of doubt
and acquitted, it would be proper to interfere with her conviction
also.
30. The appeal is allowed.
31. The impugned judgment and order of the conviction of
the appellant as recorded by the Adhoc Additional Sessions
Judge, Sewree, Mumbai is set aside.
32. The appellant stands acquitted.
33. Fine, if paid, be refunded to him.
34. Though the original accused No.1 Smt.Ranjana Babu
Shaikh has not preferred any appeal, after having gone through
the record and proceedings of the case, I am of the opinion that
the conviction of the said accused No.1 is also not proper and
legal. Therefore, for the reasons, which are discussed in this
Judgment, the said accused No.1 is also acquitted.
35. If the accused No.1 is in custody, she shall be released
forthwith, unless required to be detained in some other case.
36. Fine, if paid, be refunded to her.
37. The appeal is disposed of in the aforesaid terms.
(ABHAY M. THIPSAY J.)
No comments:
Post a Comment