Calcutta High Court (Appellete Side)

Asraul Hoque vs The State Of West Bengal on 20 September, 2022

IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE

Before: Hon'ble Justice Sugato Majumdar

CRA 118 of 2015 With IA No. CRAN/1/2015 (Old No. CRAN/977/2015)

Asraul Hoque Vs.

                          The State of West Bengal




For the Appellant                  :      Mr. Aslam Khan,
                                          Mr. Musharraf Alam.

For the State                      :      Mr. S. G. Mukherjee,
                                          Ms. Faria Hossain,
                                          Mr. Anand Keshari.

Hearing concluded on               :      08/09/2022

Judgment on                        :      20/09/2022


Sugato Majumdar, J.:-

The instant appeal is preferred against Judgment of conviction and Order of

sentence both dated 19/09/2014 passed by the Additional District and Sessions

Judge, 5th Court Malda, in Sessions Trial No. 9 of 2013 whereby the Appellant was

convicted under section 489(C) of the Indian Penal Code and was sentenced to

suffer rigorous imprisonment for five years along with fine of Rs. 5,000/- in default

rigorous imprisonment for another one year.

Secret information was received on 13/01/2013 at 12:05 hours by Assistant

Sub-Inspector Uttam Kumar Das of Manikchawk Police Station, Malda that one

unknown person was carrying fake Indian currency notes and was proceeding from

Malda to Dharampur. He along with other police persons went to Dharampur bus

stand on the basis of information so received, at 12:35 hours. At around 13:15

hours the Appellant got down from vehicle at Dharampur bus stand. The person of

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the Appellant was searched following usual formalities and 102 pieces of fake

Indian currency notes of denomination of Rs. 500/- was seized from his possession.

He was arrested on the spot. Written complaint was lodged by the said ASI Uttam

Kumar Das before the Officer-in-Charge Manikchawk Police Station, District -

Malda. The written complaint was received on 13/01/2013 at 17:45 hours in

terms of GD Entry No. 595 and Manikchawk Police Station Case No. 12 of 2013

dated 13/01/2013 under section 489(B)/489(C) of the Indian Penal Code was

registered. Sub-Inspector Subimal Kumar Dey was entrusted with investigation. In

course of investigation, he visited the place of occurrence and prepared rough

sketch map with index, examined witnesses, collected seized articles on preparing

seizure list. Seized notes were sent for examination and he received the result of

examination. On completion of investigation, he filed charge sheet under section

489(B)/489(C) of the Indian Penal Code.

Since the case was exclusively triable by a Sessions Court, the matter was

committed to the Sessions Judge and then to the Trial Court.

Cognizance was taken and charges were framed under section

489(B)/489(C) of the Indian Penal Code. Charges were read over and explained to

the Appellant to which he pleaded not guilty and claimed to be tried, resulting in

the trial.

In course of trial, prosecution examined ten witnesses and produced various

documents marked as Ext. 1 to 6. Seized fake Indian currency notes were marked

as MAT Ext. (I), collectively.

The Appellant was examined under section 313 of the Code of Criminal

Procedure. The defense of the Appellant was that he was falsely implicated and he

is innocent.

The Trial Court convicted the Appellant in terms of the impugned judgment

and sentenced him as aforesaid.

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On being dissatisfied, the appellant preferred the instant appeal. At the time

of admission of the appeal it was overlooked that there was delay of 129 days in

preferring the appeal. Petition for condonation of delay is pending since then. Let

the delay be condoned.

Mr. Khan, the learned Counsel for the Appellant submitted that the

prosecution case is rife with contradictions and inconsistencies belying reliability

of evidence. He argued that there are discrepancies in evidence of witnesses as to

time of the incident. Some of the witnesses stated that the incident took place at

12:30 hours, some of the witnesses stated that the incident took place at 01:15

hours and some other also stated that the incident took place at about 03:30 P.M.

Such contrary evidence should not be relied upon by the Trial Court to convict the

Appellant.

The next point argued by Mr. Khan is that the whole prosecution case is

based on police witnesses because the independent seizure witnesses turned

hostile and they stated in evidence that at the instruction of police they signed the

seizure list. It is in the submission of Mr. Khan that police witnesses are not

independent witnesses as their evidence were tainted with oblique motive. The

Trial Court, according to him, should not rely upon the police witnesses without

looking for corroboration. Since the independent witnesses turned hostile, no

other corroborative evidence is there. Therefore, according to Mr. Khan the Trial

Court committed serious error in convicting the Appellant. Mr. Khan relied upon

the observations of the Supreme Court of Indian in Sanjeet Kumar Singh vs. State

of Chhattisgarh (2022 SCC Online 1117) to further elaborate his agreement that

if a Court is to disregard the lack of corroboration of testimony of police witness by

independent witness, then the story of the prosecution should be very convincing

and the testimony of the police witnesses should be trustworthy. In the instant

case testimony of the police witnesses suffer from contradictions and

inconsistencies affecting the material basis of the case. Contradictions in evidence

on time of occurrence are of vital importance. Those contradictions render the

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prosecution case unreliable. According to Mr. Khan, the Trial Court committed

serious error in passing the impugned judgment and the same should be set aside.

Per contra, Mr. Anand Kesari appearing for the State submitted that though

the independent witnesses or the seizure witnesses turned hostile still they

identified the Appellant on dock; they did not deny their signature on the seizure

list. Therefore, the evidence of the seizure witnesses although hostile can be

accepted and relied upon in part without discarding the evidence as whole.

Second point argued by Mr. Kesari is that there is no discrepancy in

evidence as to the time of incident. All the witnesses persistently reiterated the

time of the incident.

The third point argued by Mr. Kesari is that evidence of police witnesses

cannot be discarded simply because they are police personnel. There is no such

law. Nothing is there in record to show that the police witnesses nurtured any

hostile animus against the Appellant so as to implicate him falsely. Therefore,

according to him, reliable evidence of police witnesses was rightly accepted by the

Trial Court. According to him, interference into the impugned judgment and Order

of sentence is uncalled for.

I have heard rival submissions.

The de-facto complainant stated in the written complaint that they reached

Dharampur bus stand at 12:35 hours and the Appellant was intercepted there at

13:15 hours. Seizure was conducted for 14:05 hours to 15:35 hours on the spot

and the whole procedure of seizure, labelling of the seized notes and arrest was

completed in between 13:45 hours to 17:35 hours on 13/01/2013. PW 1 in cross-

examination stated that the team of police persons reached Dharampur bus stand

at about 12:25 to 12:30 P.M. and had to remain there for forty five minutes. PW 2,

PW 3 also stated that they reached Dharampur bus stand at 12:35 hours. In fact,

their evidences corroborated the written complaint. PW 4 stated in evidence that

the police persons reached the Dharampur bus stand at 01:15 P.M. This is mere

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discrepancy without being a major contradiction. All witnesses may not have the

same sharpness of memory to recapitulate the incident with exactitude. All the

witnesses may not have the same mental capacity to reminisce every minute

particular. This human frailty may result in discrepancies of minor nature without

there being any serious contradiction of evidence. These discrepancies do not

undermine the whole corpus of evidence.

Three seizure witnesses turned hostile in this case, namely, Ujjal Mondal

(PW 7), Md. Latfur Rahaman (PW 8) and Raju Saha (PW 9), the PW 7 stated that ASI

Uttam Kumar Das with a de-facto complainant and PW 2 asked him to give

signature in the seizure list. PW 8 Md. Latfur Rahaman stated in evidence that at

about one and half years ago at Dharampur bus stand on the highway the incident

occurred. He was declared hostile by the prosecution. But he identified the

accused person on dock. PW 9 Raju Saha stated in evidence that accused person

was apprehended at Dharampur bus stand. He identified the person as Appellant

on dock. In cross-examination he denied the suggestion that he identified the

accused as shown by police. Evidence of PWs 8 and 9 lends credence and

corroboration to the prosecution case identifying the Appellant and connecting him

to the alleged incident, in the same place of occurrence, namely, Dharampur bus

stand. Therefore, it cannot be said that the whole prosecution case is solely based

on police witnesses. Even though turned hostile, the seizure witnesses

corroborated the prosecution case.

It is now well settled that conviction can be solely based on the evidences of

police witnesses. There is no reason why police witnesses, if otherwise trustworthy

and reliable, should be corroborated by independent witnesses and every such

evidence shall be looked with suspicion. Presumption of example (e) of section 114

of the Indian Evidence Act may also apply to police witnesses. It has been observed

by the Supreme Court of India in State, Govt. of NCT of Delhi v. Sunil, (2001) 1

SCC 652 :

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"21. We feel that it is an archaic notion that actions of the police

officer should be approached with initial distrust. We are aware that

such a notion was lavishly entertained during the British period and

policemen also knew about it. Its hangover persisted during post-

independent years but it is time now to start placing at least initial

trust on the actions and the documents made by the police. At any

rate, the court cannot start with the presumption that the police

records are untrustworthy. As a proposition of law the presumption

should be the other way around. That official acts of the police have

been regularly performed is a wise principle of presumption and

recognised even by the legislature. Hence when a police officer gives

evidence in court that a certain article was recovered by him on the

strength of the statement made by the accused it is open to the court

to believe the version to be correct if it is not otherwise shown to be

unreliable. It is for the accused, through cross-examination of

witnesses or through any other materials, to show that the evidence of

the police officer is either unreliable or at least unsafe to be acted

upon in a particular case. If the court has any good reason to suspect

the truthfulness of such records of the police the court could certainly

take into account the fact that no other independent person was

present at the time of recovery. But it is not a legally approvable

procedure to presume the police action as unreliable to start with, nor

to jettison such action merely for the reason that police did not collect

signatures of independent persons in the documents made

contemporaneous with such actions."

The principle has been reiterated in catena of decisions subsequently. In Karamjit

Singh vs. State (Delhi Admn.), (2003) 5 SCC 291, the Supreme Court of India held

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"The testimony of police personnel should be treated in the same

manner as testimony of any other witness and there is no principle of

law that without corroboration by independent witnesses their

testimony cannot be relied upon. The presumption that a person acts

honestly applies as much in favour of a police personnel as of other

persons and it is not a proper judicial approach to distrust and suspect

them without good grounds. It will all depend upon the facts and

circumstances of each case and no principle of general application can

be laid down."

In Sanjeet Kumar Singh vs. State of Chhattisgarh 2022 SCC Online 1117, the

same principle of law was reiterated by the Supreme Court of India with riders as

follow :

"18. But if the Court has -- (i) to completely disregard the lack of

corroboration of the testimony of police witnesses by independent

witnesses; and (ii) to turn a Nelson's eye to the independent witnesses

turning hostile, then the story of the prosecution should be very

convincing and the testimony of the official witnesses notably

trustworthy. If independent witnesses come up with a story which

creates a gaping hole in the prosecution theory, about the very search

and seizure, then the case of the prosecution should collapse like a

pack of cards. It is no doubt true that corroboration by independent

witnesses is not always necessary. But once the prosecution comes up

with a story that the search and seizure was conducted in the

presence of independent witnesses and they also choose to examine

them before Court, then the Court has to see whether the version of

the independent witnesses who turned hostile is unbelievable and

whether there is a possibility that they have become turncoats."