E. Muhammed @ Kunhalan S/O Ali v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **WEDNESDAY, THE 12[TH] DAY OF APRIL 2023 / 22ND CHAITHRA, 1945 CRL.A NO. 997 OF 2006** **AGAINST THE JUDGMENT IN SC 36/2005 DATED THE 9TH MAY 2006 OF ADDITIONAL SESSIONS JUDGE (ADHOC-I), MANJERI** **CP 92/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,NILAMBUR APPELLANT/FIRST ACCUSED:** E.MUHAMMED @ KUNHALAN S/O.ALI, ELAYEDATHHOUSE, MULLANPARA, MANJERI. BY ADVS. SRI.K.M.SATHYANATHA MENON SRI.M.SHAJU PURUSHOTHAMAN ## **RESPONDENTS/COMPLAINANT/STATE:** 1 THE SI OF POLICE NILAMBUR. NILAMBUR POLICE STATION. 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV PUBLIC PROSECUTOR PP-SRI.SANAL P. RAJ **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON** **12.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appeal No.997 of 2006 2 ## **C.S.SUDHA, J.** **================================= Crl.Appeal No.997 of 2006 ==================================** Dated this the 12[th ] day of April, 2023 ## **J U D G M E N T** This appeal under Section 374 (2) Cr.P.C. has been filed by the first accused(A1) in S.C.No.36/2005 on the file of the Court of Session, Manjeri, challenging the conviction entered and sentence passed against him for the offence punishable under Section 489C IPC. 2. The prosecution case as stated in the final report/charge sheet is as follows: The accused persons, two in number, knowing that possession of counterfeit notes and dealing with them is punishable, on 27/01/1998, at 20:45 p.m., were found in possession of five counterfeit notes of the denomination of ₹100/- with which the first accused(A1) tried to purchase provisions from the shop of PW3 and thereby committed the offences punishable under Sections 489 B, C read with Section 34 IPC. 3. PW1, the then Sub Inspector, Nilambur Police Station had _suo motu_ registered crime No.47/CR/1998, CBCID, Kozhikode, based on the information he had received. PW5 and PW6 are the investigating officers in 3 ## Crl.Appeal No.997 of 2006 this case. The FIS refers to three accused in the case, namely, E.Muhammed (A1); Panangattuthodi Hassan (A2) and the third accused (A3) as a person aged about 25 years who can be identified on sight. According to PW4, the identity of A3 could not be made out in the investigation and hence A3 was deleted from the array of the accused. As per the final report/charge sheet, A1 and A2 are alleged to have committed the offences punishable under Sections 489B, C read with Section 34 IPC. 4. On the final report being submitted, the jurisdictional magistrate after complying with the statutory formalities, committed the case against A1 and A2 to the Court of Session, Manjeri, which court took the case on file as S.C.No.36/2005. On appearance of A1 and A2 before the Court of Session, they were furnished with copies of all the prosecution records. On 21/02/2006, the trial court framed a charge for the offences punishable under Sections 489B and 489C, which was read over and explained to the accused to which they pleaded not guilty. The prosecution examined PWs.1 to 6 and got marked Exts.P1 to P10 and MO1 series in support of their case. After the close of the prosecution evidence, both the accused were questioned under Section 313 (1)(b) Cr.P.C. regarding the incriminating circumstances appearing against them in the evidence of the prosecution. Both the accused denied those circumstances and maintained their innocence. 4 Crl.Appeal No.997 of 2006 5. As the Sessions Court did not find it a fit case to acquit the accused under Section 232 of the Cr.P.C., the accused were asked to enter on their defence and adduce evidence in support thereof. No oral or documentary evidence was adduced on behalf of the accused. 6. On a consideration of the oral and documentary evidence and after hearing both sides, the Sessions Court by the impugned judgment, acquitted A2 under Section 235 (1) Cr.P.C. for the offences punishable under Section 489B and 489C IPC. A1 has been convicted and sentenced to undergo rigorous imprisonment for three years and to pay a fine of ₹5,000/and in default of payment of fine, to undergo simple imprisonment for six months for the offence punishable under Section 489 C IPC. Set off has also been allowed. 7. On 22/05/2006 when the present appeal was admitted by this Court, the sentence was suspended and A1 has been released on bail. In the appeal memorandum, it is alleged that the trial court went wrong in convicting A1 based on insufficient evidence and so the conviction and the sentence is liable to be interfered with. 8. The only point that arises for consideration in this appeal is whether the conviction entered, and sentence passed against A1 by the Sessions Court is sustainable or not. 5 Crl.Appeal No.997 of 2006 9. Heard Ms. Krishna Das, the learned counsel appearing for the appellant and Sri.Sanal P.Raj, the learned Public Prosecutor. 10. When the matter came up for hearing, it was submitted that A1 is dead and therefore, the case against A1 stands abated. This Court by order dated 30/09/2022 rejected the argument relying on the dictums in **Bani Singh v. State of U.P., 1996 (2) KLT 424** and **Rameshan (dead) through Legal representative v. State of Kerala, (2020) 3 SCC 45.** The present appeal is from a composite order of sentence combining substantive imprisonment with fine. On the death of the appellant/A1, the appeal as far as the sentence of imprisonment is considered, will abate by virtue of subsection (2) of Section 394 Cr.P.C. However, the Section also makes it clear that all appeals except an appeal from a sentence of fine, shall abate on the death of the appellant. Thus, the present appeal, an appeal against fine, cannot be treated as abated. Therefore, it will have to be decided on merits after going through the records in the case, which I proceed to do so. 11. As stated earlier, A2 has been acquitted of all the offences alleged against him. A1, the appellant herein, has been convicted for the offence punishable under Section 489C IPC alone though charge is seen framed under Section 489B and 489C IPC. Section 354 (1)(d) Cr.P.C. says that in case of acquittal, the judgment shall specify the offence of which the Crl.Appeal No.997 of 2006 6 accused is acquitted. This is not seen complied with. The impugned judgment merely says that A1 has been convicted and sentenced for the offence punishable under Section 489C IPC. No discussion or finding on Section 489B IPC is seen in the impugned judgment. The trial court ought to have complied with Section 354(1) (d) Cr.P.C. also. 12. Section 489C IPC says that any person in possession of any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, is liable to be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. The fact that MO1 series currency notes are counterfeit notes, is established by Ext.P9 report which is admissible under Section 292 Cr.P.C. The said report has not been discredited in any way and therefore there is nothing to disbelieve the prosecution story that MO1 series notes are counterfeit notes. Now the question is, has these notes been recovered/seized from A1 in this case? 13. Here I refer to the evidence adduced by the prosecution to prove their case. As noticed earlier, Ext.P2 FIR was _suo motu_ registered on 27/01/1998 by PW1, the then S.I of police, Nilambur police station. In the FIS it is stated thus - on 27/01/1998 at 20:45 hours, information was received 7 Crl.Appeal No.997 of 2006 that a person had tried to purchase provisions using a counterfeit currency note and that people have restrained him at the spot. He along with a team comprising of PW3, a constable, and two other constables proceeded to the place of occurrence, which is near the tiles company/factory situated at Vallappuzha. He found that about 25 people had gathered there. From the said gathering, a person named Kundany Muhammad (CW7) came forward and pointing to A1, that is, E. Muhammad, told him that the latter had tried to purchase provisions from the shop of Anappattath Muhammadali (PW3) using a counterfeit currency note. On a personal search of A1, he found A1 be in possession of five currency notes of the denomination of ₹100/- in his right hand. On being convinced that the notes are counterfeit, he arrested A1 at 21:05 p.m. and in the presence of witnesses, the counterfeit notes were seized as per a seizure mahazar prepared then. Though he had made enquiries regarding A2 and A3 who had escaped from the scene, he was unable to apprehend them. By 10:30 p.m., he along with A1 and the seized articles returned to the police station and registered crime no.48/1998 for the offence punishable under Section 489C read with Section 34 IPC. 14. PW1, the then S.I. Nilambur police station when examined stands by what he has stated in his FIS, based on which the crime was registered s _uo motu_ . He identified A1 in the box. Ext.P1 is the arrest memo 8 Crl.Appeal No.997 of 2006 prepared when A1 was arrested. Ext.P2 is the seizure mahazar prepared when MO1 series counterfeit currency notes were seized from A1. His investigation revealed that A1 had arrived at the scene of occurrence in an auto rickshaw along with two other persons. The said two persons however escaped from the scene seeing A1 being restrained by the people of the locality. Ext.P3 is the FIR. According to PW1, his investigation revealed that the offence punishable under Section 489B IPC was also made out and therefore he submitted Ext.P4 report relating to the same. MO1 series counterfeit notes seized as per Ext.P2 seizure mahazar, were produced before the court as per Ext.P5 property list. He also submitted Ext.P6 report informing the court that investigation of the case had been handed over to the CBCID Unit, Kozhikode. In the cross examination, PW1 deposed that no scene mahazar had been prepared in the case. He admitted that the place of occurrence is quite near the residence of Karunakaran, the Circle Inspector (CI) of police. In fact, he admitted that the scene of occurrence is about 200 meters away from the gate leading to the residence of the CI. He does not know whether the CI had received information relating to the present crime. He admitted that he had not sought the assistance of the CI. He had only conducted the initial investigation in this case, which was later taken over by the CBCID, Kozhikode. To a question as to why he had not given a 9 Crl.Appeal No.997 of 2006 description of the scene of occurrence in the FIR, he answered that near the place of occurrence there is only one tile factory and therefore, everybody would understand if the scene of occurrence is described as near the tile factory. According to him, all the details necessary for identification has been incorporated in the FIR. He denied the suggestion put to him that a scene mahazar had not been prepared in this case as no incident as deposed by him had taken place. PW1 denied the defense case that a false crime has been registered against A1 pursuant to an altercation between A1 and a constable of his team while A1 was waiting at the bus stand, leading to a scuffle between the two and that A1 was taken to the police station, locked up for a day and the present false crime registered against him. He also denied the suggestion that A1 had preferred a complaint to the authorities concerned in his department after being released on bail. According to PW1, no such incident as suggested by the defense had taken place. 15. PW2, police constable, Nilambur police station, who is stated to have accompanied PW1 to the scene of occurrence, supports the case stated by PW1. According to PW2, he had accompanied PW1 and assisted PW1 in completing the formalities. He identified A1 in the box. In the cross examination, he denied the defense case of false implication. 16. PW3, the person from whose shop A1 is alleged to have 10 Crl.Appeal No.997 of 2006 attempted to purchase provisions using counterfeit notes, when examined does not fully support the prosecution case. He admitted that he was conducting a provision shop. He denied any acquaintance with the accused in this case. He also denied knowledge about the incident. According to PW3, no such incident of the accused coming to his shop and trying to purchase articles with a counterfeit note had taken place. He admits his signature in Ext.P2 seizure mahazar. He was asked as to the circumstances under which he had attested Ext.P2, to which he had answered thus: - on the said day, there was a fight in front of his shop, which took place by about 8.00 p.m. The fight had taken place between some people of his locality, that is, one Ashraf Ali and gang. He had not informed the incident to the police. However, he admitted that the police had come to scene of occurrence. PW2 also admitted that his shop is situated near the tiles factory at Vallappuzha. He also admitted that the place is known as Vallappuzha tile factory (വല�പഴ ഓടകമന�). He denied having given any statement to the police or having stated that he had seen the incident in this case. He was confronted with his 161 statement. He was asked whether he had stated to the police that on 27/01/1998 between 8.00 and 8.30 p.m. a person had come to his shop and purchased wills cigarette and Sabari bar soap, both costing ₹30/-, he answered that he does not deal in the said brand of cigarette. PW3 did not 11 Crl.Appeal No.997 of 2006 give any answer when he was asked whether he had restrained the man who made the purchase on suspecting the genuineness of the currency note handed over by the latter. He also did not give any answer to the question put to him that it was he and CW7, his uncle, who had restrained A1 on the said day. He denied having informed the matter to the police. He feigned ignorance when he was asked whether he along with other persons had informed the police, pursuant to which the police had come to the place. The prosecutor is then seen to have handed over a 100 rupee note to PW3 which was identified as a genuine note. Thereafter, MO1 series notes were handed over to PW3, who after examining it admitted that they are not genuine notes. He denied A1 having handed over a counterfeit currency note like MO1 series notes, which he had refused to accept. He also denied the suggestion put to him that he had attested Ext.P2 seizure mahazar after fully comprehending/understanding the contents of the same. In the cross examination, he deposed that he had not given any false statement to the police. According to him, he had attested in Ext.P2 seizure mahazar at the police station. He was summoned to the police station relating to an investigation in a case relating to a fight that had taken place in front of his shop. He was then asked to sign in two to three papers. He never asked the purpose for which he was made to sign in the papers. To a question whether he had signed in the papers at the police 12 Crl.Appeal No.997 of 2006 station believing it to be relating to the case relating to a fight in front of the shop, he answered in the affirmative. He further deposed that he had affixed his signature in a blank paper. (അട�പ�ട� കകസ�ന� ആവശ�ത�ന� കവണ�യ�ണ� എന� ? അനത. ? മനസ�ല�ക�യ�കണ� ഒപ�ടത� എഴത�ത കപപറ�ല�കണ� ഒപ�ടവ�ചത� അനത.............) 17. PW4, who is alleged to be an eyewitness turned hostile and denied having seen the incident. He also denied the suggestion that he along with PW3 had restrained a person and informed the police, pursuant to which the police had come to the scene and taken further action. He also denied having stated to the police that on the said day A1 had arrived at the scene in an auto rickshaw along with two other persons and that when A1 was restrained by them on the suspicion that he was trying to pass off a counterfeit currency note as genuine, the other two persons in the auto rickshaw had escaped from the scene of occurrence. 18. PW5 deposed that on 10/02/2001 he had taken over the investigation in this case. The identity of A3 was not clearly made out in the investigation. He submitted Ext.P7 report deleting the said accused from the array of the accused. He identified the signature of CW14 and Ext.P8 forwarding note which was submitted requesting the court for sending MO1 series for expert opinion. He admitted that he had not inspected/examined 13 Crl.Appeal No.997 of 2006 the scene of occurrence. According to him, the scene of occurrence is the roadside situated near the tile factory at Vallappuzha. 19. Finally, PW6 when examined deposed that he was working in the CBCID Unit, Kozhikode, from February 2003 till November, 2005. On 5/11/2004 he had submitted the charge sheet in this case before the court. Ext.P9, according to him, is the expert opinion received in this case. In the cross examination he deposed that his investigation did reveal the commission of the offences by the accused and hence the reason why he had submitted the final report before the court. 20. The prosecution relies on the testimony of PWs.1 and 2 to establish the case. It is true that PW1 and PW2 are official witnesses. However, there is no rule or law to the effect that the testimony of official witnesses should be disbelieved or discarded unless their testimony is corroborated by independent witnesses. The settled principle of law is that testimonies of the official witnesses carry the same evidentiary value as that of any other witness. Their statements cannot be discarded simply on account of their official designation. There is no statutory or absolute rule that their deposition should be treated with suspicion. They cannot be viewed with distrust every time ( **Ram Swaroop v. State (Government of NCT of Delhi), (2013) 14 SCC 235** ). As held in **State (Govt. of NCT of Delhi) v. Sunil,** 14 Crl.Appeal No.997 of 2006 **(2001) 1 SCC 652** , 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, 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 look in for corroboration. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely because there are no independent witnesses to support the action taken by them (see also **Kulwinder Singh v. State of Punjab, (2015) 6 SCC 674** ). Therefore, the testimony of PW1 and PW2 can certainly be relied on if found credible and it inspires the confidence of the court. Here nothing has been brought on record to show that their evidence is either unreliable or unsafe to be acted upon. Hence, I find no reason(s) to discard their testimony. 21. Moreover, though the independent witness, namely PW3, does not wholly support the prosecution case, he does not deny several relevant facts put to him. It is quite pertinent to note that PW3, the shop-owner, from 15 Crl.Appeal No.997 of 2006 whose shop A1 is alleged to have tried to purchase the provisions by giving a counterfeit currency note, did not deny several crucial questions relating to the prosecution story put to him by the prosecutor. PW3 only remained silent and has not denied the questions put to him. PW3 did not give any answer when he was asked whether a man had tried to purchase provisions from his shop by passing off a counterfeit currency note as genuine, pursuant to which he had restrained the latter suspecting the genuineness of the currency note handed over by the latter. He also did not give any answer to the question put to him that it was he and his uncle (CW7), who had restrained A1 on the said day. The silence of PW3 is quite eloquent. It is true that PW3 at the request of the prosecutor was declared hostile by the trial court and permission granted to the latter to put questions as put in cross examination. However, merely because a witness has been declared "hostile", it does not result in an automatic rejection of his evidence. Even, the evidence of a "hostile witness" if it finds corroboration from the facts of the case, can be considered while judging the guilt of the accused. There is no legal bar to base a conviction upon a "hostile witness" testimony if corroborated by other reliable evidence, even if the witness is treated as "hostile" and is cross - examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy 16 Crl.Appeal No.997 of 2006 can be considered and acted upon ( **Neeraj Dutta v. State (Govt. of N. C. T. of Delhi, (2022) SCC OnLine SC 1724).** Further, PW3 denied having informed the matter to the police. He feigned ignorance when he was asked whether he along with other persons had informed the police, pursuant to which the police had come to the place. But PW3 admits that he is running a provision store and that the police had come to the spot on the relevant day though according to him, it was relating to some other incident. The testimony of PW3, in my opinion, corroborates the prosecution case spoken to by PW1 and PW2. 22. One another aspect pointed out on behalf of the defense, attacking the prosecution case is that no scene mahazar has been prepared in this case. It is true that the investigating officer as well as the detecting officer admit that no scene mahazar has been prepared in this case. However, the defense has not been able to point out any provision of law or rule which mandates the preparation of a scene mahazar invariably in all cases. Failure to prepare scene mahazar in cases of the present nature is not fatal. Preparation of scene mahazar would be quite relevant and important in cases, say for instance, motor accident cases coming under Sections 279, 338, 304A IPC etc. In the case on hand, the non-preparation of a scene mahazar has not affected the prosecution case because Ext.P2 seizure mahazar clearly refers to 17 Crl.Appeal No.997 of 2006 the place of occurrence or the place from where A1 was arrested in this case and the seizure effected, that is, near the tile factory at Vallappuzha. PW3 has admitted that his shop is situated near the tile factory at Vallappuzha. He also admitted that the place is known as Vallappuzha tile factory (വല�പഴ ഓടകമന�). The testimony of PW3 corroborates the testimony of PW5, the investigating officer, who has also deposed that the scene of occurrence is the roadside situated near the tile factory at Vallappuzha. Ext.P2, a contemporaneous document prepared by PW5, also corroborates the prosecution case regarding the place of occurrence. 23. Another aspect pointed out on behalf of the defense is that the residence of the CI is situated quite near the place of occurrence. However, PW1 never informed the CI about the detection of the crime, nor had he sought the assistance or direction of the said Officer. It is true that PW1 admits that the residence of the CI is situated quite near the place of occurrence. But no evidence has come on record as to whether the CI was in fact available at his residence. Nothing has been brought out to discredit the testimony of PW1 and PW2 though they were subjected to crossexamination. Though the defense has set up a case that the present case is a false crime registered in the aftermath of an altercation that took place between A1 and a police constable in the team of PW1, the same has not been 18 Crl.Appeal No.997 of 2006 probabilised or established in any way from the materials on record. Therefore, I find no reasons to disbelieve the prosecution case, which stands established by the materials on record. So, the trial court was justified in finding A1 guilty of the offence punishable under Section 489C IPC. I do not find any infirmity or illegality in the finding of the trial court calling for an interference by this Court. In the result, the appeal is found to be without any merits and hence the same is dismissed. **Sd/C.S.SUDHA, JUDGE** ami/jms