Shiv Kumar vs State Of Uttarakhand

R.C. Khulbe, J

This appeal, preferred by the appellant u/s 374 of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 01.12.2009 rendered by learned Additional Sessions Judge/First FTC, Dehradun in Sessions Trial No.125 of 2007, State v. Shiv Kumar, whereby the Court below convicted the appellant under Section 489-C of the Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to undergo six month's rigorous imprisonment.

Facts, in nutshell, are that PW1 Mohd. Farman gave a report on 26.3.2006 to the effect that on that day at about 11:30 AM, when he was selling the fruits, a person came to him and bought one kilogram of apples worth Rs.35/-, in lieu of which he gave a counterfeit note of Rs.500/-. PW1 Mohd. Farman, on finding the counterfeit note to be fake, refused to accept the same. On the dispute being aggravated, two policemen came on the spot and saw that note. That person disclosed his name Shiv Kumar. The policemen then brought that person, along with the fake note, at the Kotwali. That person (appellant) was trying to deliberately use that counterfeit note. With these averments, the FIR was lodged.

The criminal law was, accordingly, set into motion. The I.O. during investigation recorded the statements of witnesses, prepared the spot map and submitted the charge-sheet u/s 489-C IPC against the appellant.

Charge against the appellant was framed on 1.12.2007 u/s 489C IPC. The charge was read over and explained to the appellant who pleaded not guilty and claimed to be tried.

To prove its case, the prosecution has examined P.W.1 Mohd. Farman (complainant), PW2 Constable Parasmani Raturi, PW3 S.I. Raj Kumar, PW4 Constable Prakash Ram and PW5 S.I. Sharan Singh Verma (I.O. of the case).

Thereafter, the statement of the appellant was recorded u/s 313 of Cr.P.C. who denied the allegations made against him. However, he did not produce any oral or documentary evidence in defence.

After appreciating the evidence on record and hearing learned counsel for the parties, learned Additional Sessions Judge, Dehradun, vide the judgment, under challenge, has convicted and sentenced the appellant, as afore-stated. Feeling aggrieved, the present appeal has been filed.

Heard learned Counsel for the parties and perused the entire evidence available on the record.

PW1 Mohd. Farman (complainant) appeared before the Court but did not support the prosecution case and was declared hostile.

PW2 Constable Parasmani Raturi stated that on 26.3.2006 on hearing the noise of quarrel, he along with his companion, reached on the spot and saw that a person was quarreling with the hawker. On being enquired, that hawker informed that the person who was quarrelling was giving him the fake note of Rs.500/- and on his refusal to accept the same, he was quarrelling with him. The name of person who was quarrelling was Shiv Kumar. Prima facie, the note appeared to be fake. Then he along with his companion brought that person at Kotwali. On the search of the appellant, 14 notes of Rs.100/- each, one note of Rs.500/- and 4 notes of Rs.50/- each were recovered. The counterfeit note of Rs.500/- appeared to be fake one. The S.I. prepared the recovery memo and we both signed on the same. Ex.Ka-1 was marked on that memo.

PW3 S.I. Raj Kumar has proved the registration of Chick FIR as Ex.Ka-2 and entry made in the G.D. as Ex.Ka-3. He has also proved the preparation of the recovery memo about the notes recovered from the accused. The memo is Ex.Ka-1 written by him.

PW4 Constable Prakash Ram is the person who was on duty along with PW2 Constable Parasmani Raturi. He has stated the same version, as given by PW2 Constable Parasmani Raturi.

PW5 S.I. Sharan Singh Verma is the Investigating Officer of the case. He has made investigation of the case and after culminating the same, submitted the charge-sheet u/s 489-C IPC which is Ex.Ka-6.

Thereafter, the statement of the appellant was recorded u/s 313 Cr.P.C. However, he did not adduce any oral or documentary evidence in defence.

As per the prosecution story, the counterfeit note of Rs.500/- was given by the appellant to PW1 Mohd. Farman who was selling the fruits. The prosecution produced Mohd. Farman as PW1 who clearly stated that the appellant did not give him any counterfeit note.

As per the recovery memo Ex.Ka-1, one counterfeit note of Rs.500/- was recovered from the possession of appellant and one counterfeit note of Rs.500/- was taken from the possession of PW1 Mohd. Farman which was given to him by the appellant. PW2 Constable Paras Mani Raturi stated that the counterfeit note had been handed over to appellant by PW1 Mohd. Farman.

As per the recovery memo Ex.Ka-1, one counterfeit note of Rs.500/- was recovered from the possession of appellant at the police station while PW3 S.I. Raj Kumar stated that both the counterfeit notes were given by PW1 Mohd. Farman at the police station.

There is also a major contradiction between the statements of two witnesses i.e. PW2 Paras Mani Raturi and PW3 S.I. Raj Kumar about the recovery of notes. From the evidence, it is not proved whether any note was given by PW1 Mohd. Farman or whether any counterfeit note was recovered from the possession of appellant Shiv Kumar. That apart, there are no signatures of police personnel on both the notes. This fact is also admitted by PW3 S.I. Raj Kumar in his cross-examination as he clearly stated that they did not sign on these counterfeit notes.

As far as independent eyewitness is concerned, according to the statement of PW4 Prakash Ram, when the appellant had tendered the counterfeit note to PW1 Mohd. Farman, at that time, many people were present there, but the prosecution did not produce any independent witness to prove the occurrence.

As per the prosecution story, the counterfeit note of Rs.500/- was given to PW1 Mohd. Farman but he did not support the prosecution story, as alleged in the FIR.

PW4 Constable Prakash Ram stated that both the counterfeit notes were recovered from the possession of appellant, one from his pocket of shirt and another from the pocket of his pant. This statement, however, does not prove the recovery memo Ex.Ka-1.

The prosecution also produced PW2 Con. Parasmani Raturi, PW3 S.I. Raj Kumar, PW4 Con. Prakash Ram and PW5 S.I. Sharan Singh Verma in its support but all these witnesses have given different statements as regards the alleged recovery. Moreover, there is no clinching evidence against the appellant.

That apart, the report regarding the counterfeit notes is on record which was given by the Currency Note Press, Nasik but the genuineness of this document was not admitted by the appellant.

The specimen of seal is also not on record which casts a doubt on the prosecution story whether the counterfeit notes were properly sealed before the Magistrate or not.

There is even no evidence on record to suggest that the accused had used the counterfeit notes for his benefit.

For the aforesaid reasons, I am of the view that the prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt. The Court below failed to notice the aforesaid facts while passing the judgment and order under challenge. The conviction and sentence of appellant, as recorded by the Court below, thus, cannot be sustained.

For the reasons, as given hereinabove, the appeal preferred by the appellant Shiv Kumar is allowed. The impugned judgment and order, convicting and sentencing the appellant, as above, is hereby set aside. Appellant Shiv Kumar is acquitted for the Charge u/s 489C IPC.

The appellant is on bail. He need not to surrender. His bail bonds are cancelled and sureties are discharged.

A copy of this judgment and order along with LCR be sent to the court below.