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CR.A/953/2007 15/ 17 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 953 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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VIPULBHAI
BATUKBHAI BARWALIA
Versus
STATE
OF GUJARAT
=========================================
Appearance :
MR. ASIM
PANDYA for HL PATEL ADVOCATES for Appellant(s)
: 1,
MR. L.B.DABHI, APP for Respondent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 05/08/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
Challenge
in the instant Appeal filed under Section 374 of the Code of
Criminal Procedure ( the Code for short) is to the correctness
of the judgment and order dated 15.5.2007 rendered in Sessions Case
No. 211 of 2006 by the learned 2nd Additional Sessions
Judge, Surat, by which the Appellant ( the accused for short)
has been convicted of the offences punishable under Section 489(B)
and 489(C) of the Indian Penal Code ( IPC for short) and was
sentenced to suffer RI for 10 years and fine of Rs.15000/-, in
default of payment of fine, further RI for 3 years for the offence
punishable under Section 489(B) of IPC, and RI for 7 years and fine
of Rs.15000/-, in default of payment of fine, further RI for 2 years
for the offence punishable under Section 489(C) of IPC. It is also
ordered that both the sentences shall run concurrently.
The
prosecution case as disclosed from the FIR and unwrapped during the
trial is as under:
2.1 PW-5
– A.S.I. Lotan Nimbabhai while serving at Varachha Police Station,
Surat City, was informed by PW-6 Hitesh Dilipsinh Chauhan to the
effect that he has received secret information that one person named
Vipul Barvalia has been moving in the market for the last two, three
days for encashing fake currency notes of Rs.500/- denomination and
on that day he was to come in Matavali Kunj Gali near Rakesh Tea
Stall for encashing the said currency notes. He has also informed
that he was wearing black coloured shirt and gray coloured trouser.
He was aged about 20 years having thin physique. On receipt of the
aforesaid information he informed the same to the surveillance
staff, Police Constables – Devidas Chagan, Rajesh Bhiman, Hitesh
Dilipsinh and Vanabhai to join in the raiding party. Thereafter,
services of two panchas namely Mahendra Manilal Patel and Dhirubhai
Damjibhai were requisitioned in police station, they were informed
about the secret information and were asked about their willingness
to join them as member of the raiding party. On showing their
willingness, the first part of the panchnama was prepared.
Thereafter, from police station, all the members of the raiding
party, including two panchas, went to Matavali Kunj Gali in private
vehicle and remained in watch around the place, i.e. near Rakesh Tea
Stall. Meanwhile, at about 4:45 pm, a boy having description
mentioned with above information came there from Bhagudevnagar
Society. When he came near Rakesh Tea Stall, he was intercepted by
police personnel in the presence of the panchas. On interception,
he was frightened and on asking his name he has given his name Vipul
Batukbhai Barvalia, aged about 20 years, residing at Matavadi, near
the temple of Bhavani Mata, Sunita Chambers, third floor in the
factory of Ghabharubhai, Varachha, Surat and the original resident
of village Jejad, Taluka Savarkundla, District Amreli. He was
wearing black coloured shirt having design and grey coloured
trousers. When he was asked about search, he again frightened very
much. When his person was searched, in the presence of panchas, 50
notes of Rs.500/- denomination were found from the pocket of his
trouser. On close look at the notes it were found fake currency
notes of Rs.500/- denomination. The size of certain notes were
small and certain notes were big. The colour was deem on front part
and dark on reverse part. The numbers of the said currency notes
were as under:
(i) 12
Notes – JHD 143797
(ii) 9
Notes – 4EP 114707
(iii) 11
Notes – JHC 683371
(iv) 12
Notes – 2BG 422302
(v) 2
Notes – JHW 581997
(vi) 2
Notes – 6GB 500706
(vii) 2
Notes – 8CP 459319
In all,
total 50 currency notes of Rs.500/- denomination amounting to
Rs.25000/- were recovered from the accused. Paper of the notes is
rough then the real notes. There appeared like a white line on the
middle portion of fake notes. During interrogation, the accused
stated that he has taken the said currency notes for encashing in
the market on commission basis from Kana Ravjibhai Vekaria, who is
residing at Tirupati Society, House No.256, Simada Road, Village
Puna, Surat, who is original resident of Jejad, Taluka Savarkundla,
District Amreli, and Jivan, a friend of Kantibhai Vekaria, whose
address is not know to him, his physique is thin who is tall having
25 years age. One gray coloured mobile phone is found during the
search from him. Its model number is 2600 and IMEI Number is
35705400 / 818155 / 0. Value of said mobile phone was about
Rs.1500/-. Moreover, total 170 real currency notes of Rs.100/-,
Rs.50/- and Rs. 10/- denomiantion have been found from the wallet
which was placed on back side of pocket of the trouser. Therefore,
total 50 fake currency notes of Rs.500/- denomination amounting to
Rs.25000/- were found in the possession of the accused, which were
printed by accused Kantibhai Ravjibhai Vekaria and his friend Jivan
and given to the accused Vipul Barvalia on commission basis for the
purpose of circulating the same in the market as real currency
notes. Therefore, as per the prosecution case, the accused is fully
knowing well that the currency notes were fake, he kept the same in
his possession for placing in the circulation and committed the
offence. He was therefore arrested.
2.2 Complainant
for the aforesaid incident was registered with Varachha Police
Station, Surat vide CR No. I-CR No. 173 of 2006 against the accused
for commission of the offence
punishable under Section 489(B) and 489(C) of IPC.
2.3 Pursuant
to the registration of complaint, investigation was started by PW-7
Hasmukhrai Mansukhlal Jani, PSI. During the course of
investigation, he has recorded statements of witnesses, fake
currency notes which were recovered were sent to FSL for chemical
analysis by making entry in the inward outward register along
with the sample seal.
2.4 On
receipt of FSL report certifying that the notes recovered from the
accused were fake currency notes, the investigating officer has
filed charge sheet against the accused for commission of the offence
under Section 489(B) and 489(C) of IPC in the Court of learned Chief
Judicial Magistrate, Surat.
2.5 During
further investigation, it was revealed that the accused received
currency notes from one Kantibhai Ravjibhai Vekaria, who has printed
the said currency notes. Therefore, Kantibhai Ravjibhai Vekaria was
also apprehended and arrested by drawing the panchnama of his person
and supplementary charge sheet was filed against Kantibhai Ravjibhai
Vekaria in the Court learned Chief Judicial Magistrate, Surat.
2.6 As
the offecne under Section 489(B) and 489(C) were exclusively triable
by the Court of Sessions, the learned Chief Judicial Magistrate
committed the case to the Court of Sessions, Surat.
2.7 On
committal, the learned Additional Sessions Judge ( trial Court
for short) to whom the case was made over for trial, framed charge
against the accused for commission of the offence under Section
489(B) and 489(C) of IPC whereas framed charge against Kantibhai
Ravjibhai Vekaria for commission of the offence punishable under
Sections 489(A), 489(B), 489(C) and 489(D) of IPC, and, as both
the Sessions Cases were arising out of the same CR, they were
consolidated and the evidence in common was recorded.
2.8 The
accused as well as Kantibhai Ravjibhai Vekari pleaded not guilty to
the charge and claimed to be tried and therefore they were put to
trial.
2.9 To
prove the culpability of the accused as well as Kantibhai Ravjibhai
Vekaria, the prosecution has examined in all 7 witnesses and relied
upon their oral testimony, details of which are given in paragraph 5
of the impugned judgment and order. They are as under:
PW
Name
Exhibit
PW-1
Himatsinh
Kesrisinh Chwada, PSO
7
PW-2
Harishchandra
Vanabhai parmar, member of raiding party
9
PW-3
Mahendrabhai
Manilal Patel, Panch witness
11
PW-4
Rajesh
Bhikhabhai solanki, Member of raiding party
13
PW-5
Lotan
Nimbabhai, complainant
14
PW-6
Hitesh
Dilipsinh Chauhan, Police Staff
16
PW-7
Hasmukhrai
Mansukhlal Jani, I.O.
18
2.10 To
prove the charge levelled against the accused person, the
prosecution has produced 8 documents and relied upon the contents
thereof, details of which are given in paragraph 6 of the impugned
judgment and order.
2.11 After
recording of the evidence of the prosecution witnesses was over, the
trial Court explained to the accused as well as Kantibhai Ravjibhai
Vekaria, the circumstances appearing against them in the evidence of
the prosecution witnesses and recorded their further statement under
Section 313 of the Code. In their further statement they denied the
case of the prosecution in toto. The accused in his defence examined
one witness Mahesh Chotalal, Photographer as Defence Witness-1
at exh.29. The another accused Kantilal Ravjibhai Vekaria has
neither led any evidence nor examined any witness in support of his
defence.
On
appreciation, evaluation, analysis and scrutiny of the evidence on
record, the trial Court has come to the conclusion that the currency
notes which were recovered from the accused were fake currency notes
and were found in possession of the accused when he was intercepted
and apprehended, and therefore, the complicity of the accused for
commission of the offence under Section 489(B) and 489(C) has been
duly established. The trial Court therefore convicted and sentecned
the accused for the said offences to which the reference is made in
earlier paragraph of this judgment, which has given rise to the
instant Appeal at the instance of the accused.
So far as
another co-accused Kantibhai Ravjibhai Vekaria is concerned, as
nothing was found and recovered from him, he was acquitted of the
offences punishable under Section 489(A), 489(B), 489(C) and 489(D)
of IPC as the prosecution failed to prove the charge levelled
against him.
Mr. Asim
Pandya, learned Advocate for the Appellant submitted that there is
no evidence against the accused. According
to him, in the entire length and breadth of the prosecution case,
there is no evidence worth consideration, as no independent witness
except member of the raiding party have supported the prosecution
case with regard to the recovery of the fake currency currency notes
from the accused. The panch witness has also not supported the
recovery of the fake currency notes from the accused in his presence
and the second panch witness has not been examined.
Therefore, on the aforesaid premises, it is submitted
by him that the impugned judgment and order convicting and
sentencing the accused for the offences punishable under Sections
489(B) and 489(C) of IPC deserves to be quashed and set aside by
allowing this Appeal.
In
alternative submission, Mr. Asim Pandya, learned Advocate for the
Appellant accused submitted that if this Court comes to the
conclusion that the prosecution has established the charge levelled
against the accused, so far as the quantum of punishment is
concerned, leniency may be shown to the accused looking to his age
which is less then 20 years and he has undergone total 4 years and 3
months imprisonment. Therefore, period undergone by him may be
treated as substantive sentence and he may be set at liberty
forthwith, if not required in any other case. He therefore urged to
pass appropriate order in this regard.
In
counter submission, Mr. L.B.Dabhi, learned APP for the Respondent
State of Gujarat submitted that there is a voluminous evidence
against the accused that he has committed offence punishable under
Section 489(B) and 489(C) of IPC. The accused was found in the
presence of panchas with 50 fake currency notes of Rs.500/-
denomination and the FSL report has also certified that the said
currency notes were fake currency notes. It has also come in
evidence that
the accused tried to put the said currency notes into circulation.
It is also highlighted by him that merely the panchas have turned
hostile that itself cannot throw overboard the prosecution case as
the evidence of the member of the raiding party inspire confidence
and found to be trustworthy. Therefore, the impugned judgment and
order convicting and sentencing the accused for commission of the
offence punishable under Sections 489(B) and 489(C) does not call
for any interference of this Court in exercise of powers conferred
under Section 374 of the Code.
So far as
alternative submission made by Mr. Asim Pandya, learned Advocate for
the accused regarding showing leniency is concerned, Mr. L.B.Dabhi,
learned APP for the Respondent State of Gujarat submitted that
the offence committed by the accused is a serious offence as it is
an offence of crime against the nation and it affects the economy of
the Country. Mr. L.B.Dabhi, learned APP therefore urged that no
leniency can be shown to the accused. He therefore submitted that
there is no merit in this Appeal and urged to dismiss the Appeal.
This Court
has considered the submissions advanced by the learned advocates
appearing for the parties and perused the impugned judgment and
order. This Court has undertaken a compete and comprehensive
appreciation of all vital features of the case and the entire
evidence on record which is read an re-read by the learned advocates
for the parties with reference to broad and reasonable probabilities
of the case. In light of the caution sounded by the Supreme Court
while dealing with criminal appeals, this court has examined the
entire evidence on record for itself independently of the trial
Court and considered the arguments advanced on behalf of the accused
and infirmities pressed, scrupulously with a view to find out as to
whether the trial Court has rightly recorded the order of
conviction and sentence.
In order
to prove the culpability of the accused, the prosecution has
examined and relied upon the oral testimony of PW-1 Himatsinh
Kesrisinh Chawda, PSO, who has registered the complaint, PW-2
Hrishchardra Vanabhai Parmar member of the raiding party, PW-4
Rajesh Bhikhabhai Solanki member of raiding party, PW-5
Lotan Nimbabhai, who is a captain of the raiding party and who filed
the complaint and PW-6 Hitesh Dilipsinh Chauhan member of
the raiding party and who received the secret information. On
threadbare scrutiny and reappraisal of their evidence, there is no
manner of doubt that the secret information received by PW-6
Hitesh Dilipsinh Chauhan was proved to be correct and on the basis
of the said secret information, the accused was found with the
currency notes and his mobile phone was also seized and he was
fitted with the description given in the secret information. His
conduct also appears to be abnormal when he was apprehended by the
police personnel and on the basis of the said secret information, 50
fake currency notes of Rs.500/- denomination were found from him.
On a prima facie look, the said currency notes were found to be fake
which were recovered in the presence of two panchas and most of the
notes have got identical numbers. After recovering the said notes,
the same were sent to FSL for chemical analysis and the FSL report
(Exh.20) also certified that those currency notes are fake currency
notes. On the basis of the said evidence, the trial Court has
recorded the finding of guilt of the accused.
Mr. Asim
Pandya, learned advocate for the accused submitted that PW-3
Mahendrabhai Manilal Patel, who is the panch witnesses, has not
supported the prosecution case with regard to recovery of fake
currency notes from the accused, and therefore, he was declared
hostile and another panchwitness namely Dhirubhai Damjibhai Padliya
has not been examined, and therefore, recovery of fake currency
notes from the accused has become doubtful, and therefore,
prosecution case cannot be believed.
According
to this Court, the aforesaid submission has no substance. It is well
settled that merely because the panch witnesses do not support the
case of the prosecution, the case of the prosecution need not be
thrown over-board as unreliable. It may be realized that the
phenomenon of panch witnesses turning hostile to the prosecution is
not unknown and is ever on the increase. It needs hardly to be
emphasized that the decision of a case does not depend solely on the
question whether the panch witnesses support the prosecution or turn
their back on it. If the decision of the case were to depend solely
on the testimony of panch witnesses regardless of the evidence of
police officers, in theory, it would be giving a right to veto to
the panchas so far as the question of culpability of an accused is
concerned, which is not permissible in criminal jurisprudence. It is
well settled that without good ground being pointed out, testimony
of police officer, if otherwise found to be true and dependable,
cannot be discarded by court on the ground that he is a police
officer. On the facts and in the circumstances of the case, this
Court finds that testimonies of PW-2 Harishchandra Vanabhai Parmar,
PW-4 Rajesh Bhikhabhai Solanki, PW-5 Lotan Nimbabhai and
PW-6 Hitesh Dilipsinh Chauhan are not only inspiring confidence,
but, get corroboration from the other evidence on record and from
the evidence of the police officers, and from their evidence
contents of the panchnama have been proved and it is given exhibit
number as well. Therefore, according to this Court, the said
panchnama can be relied upon to decide the complicity of the
accused.
Mr. Asim
Pandya, learned Advocate for the accused is unable to dislodge the
said finding and persuaded this Court to take a contrary view. We,
therefore find ourselves in complete agreement with the said
findings, ultimate conclusion and the resultant order of conviction,
as the complicity of the accused for commission of the offence
punishable under Sections 489(B) and 489(C) is fully established, as
according to us, no other conclusion or finding or order is
permissible on the facts and in the circumstances emerging from the
record of the case as well as reappraisal of the evidence.
Therefore, we hold that the trial Court has rightly recorded
conviction against the accused for commission of the offences
punishable under Sections 489(B) and 489(C) of IPC.
Now, the
next question is to examine about the alternative submission made by
Mr. Asim Pandya, learned Advocate for the accused to take a lenient
view with regard to the quantum of punishment. The trial Court has
awarded sentence to
suffer RI for 10 years and fine of Rs.15000/-, in default of payment
of fine, further RI for 3 years for the offence punishable under
Section 489(B) of IPC, and RI for 7 years and fine of Rs.15000/-, in
default of payment of fine, further RI for 2 years for the offence
punishable under Section 489(C) of IPC.
This Court
has given anxious and considerate thought to the rival submissions
advanced by the learned advocates for the parties with regard to
showing leniency so far as sentence is concerned. There is no
dispute that at the relevant time the accused was less than 20 years
of age, as he was born on 12.7.1986 as per birth record produced
before us, and therefore, he was in his twenties and just prior to
commission of the offence he has crossed the juvenility.
Furthermore, It has not come in evidence that he was a habitual
offender, hardened criminal or involved in any such type of activity
in the past. Therefore, according to us, since the accused has
already undergone more than 4 years of imprisonment, and if he
remains in jail for a longer period with hardened criminals, he
would also become a hardened criminal after his release from jail.
In view of
this we are of the considered opinion that the alternative
submission made by Mr. Asim Pandya, learned Advocate for the
Appellant with regard to showing leniency to the accused so far as
the quantum of sentence is con concerned, deserves merit.
In above
view of the matter, according to us, if the accused is sentenced to
suffer RI for 5 years and fine of Rs.15000/- and in default of
payment of fine further RI for 6 months for the offence punishable
under Section 489(B) of IPC, and RI for 3 years and fine of
Rs.15000/- and in default of payment of fine further RI for 3 months
for the offence punishable under Section 489(C) of IPC and also both
the sentences shall be ordered to run concurrently, it would meet
the ends of justice.
For the
foregoing reasons, the
Appeal succeeds in part and accordingly, it is partly allowed qua
sentence only. The impugned judgment and order dated 15.5.2007
rendered in Sessions Case No. 211 of 2006 by the learned 2nd
Additional Sessions Judge, Surat convicting the Appellant
accused of the offences punishable under Section 489(B) and 489(C)
is hereby confirmed and maintained.
So
far as sentence is concerned, the Appellant accused is sentenced
to suffer RI for 5 years and fine of Rs.15000/-, in default of
payment of fine, further RI for 6 months for commission of offence
under Section 489(B) of IPC, and RI for 3 years and fine of
Rs.15000/-, in default of payment of fine, further
RI for 3 months for commission of offence under Section 489(C) of
IPC. Both the sentences are ordered to run concurrently.
Fine,
if paid in compliance of the order passed by the trial Court, shall
be adjusted. The Applicant accused is also entitled for set
off.
The Appeal
is disposed of in above terms.
(A.M.Kapadia,J)
(J.C.Upadhyaya,J)
Jayanti*
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