If Evidence Of Official Witnesses Inspire Confidence, Lack Of Corroboration By Hostile Independent Witnesses Will Not Affect Prosecution Case: Calcutta HC

Without making any bones about it, the Calcutta High Court in an extremely learned, laudable, latest and landmark judgment titled Habibur Rahaman Vs State of West Bengal in CRA 277 of 2016 and 2022 LiveLaw (Cal) 64 delivered as recently as on February 24, 2022 has observed that if the evidence of official witnesses inspire confidence then the absence of corroboration by independent witnesses who have turned hostile will not make a dent in the prosecution case. A Bench comprising of Justice Biyas Pattanayak and Justice Joymala Bagchi was adjudicating upon a case involving the seizure of fake currency notes. The Bench held that the seizure of counterfeit notes suspected to be forged valued at Rs 8 lakhs from the appellant and Rs 2 lakh from the juvenile accused has been proved.

To start with, the brief, brilliant, bold and balanced judgment authored by Justice Joymalya Bagchi for a Bench of Calcutta High Court comprising of himself and Justice Biyas Pattanayak first and foremost puts forth in the opening para that, "The appellant has assailed the judgment and order dated 30th March, 2016 and 31st March, 2016 passed by the learned Additional Sessions Judge, 4th Court, Malda, in Sessions Case No. 216 of 2015 corresponding to Sessions Trial Case No. 55(5) of 2015 arising out of Baisnabnagar Police Station Case No. 435 of 2014 dated 05.11.2014 convicting the appellant for commission of offence punishable under Sections 489B/489C of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for ten years and to pay fine of Rs.5,000/-, in default, to suffer rigorous imprisonment for six months more for the offence punishable under Section 489B of the Indian Penal Code and to suffer rigorous imprisonment for seven years and to pay fine of Rs.5,000/-, in default, to suffer rigorous imprisonment for six months more for the offence punishable under Section 489C of the Indian Penal Code; both the sentences to run concurrently."

To put things in perspective, the Bench then while dwelling on the details envisages in the next para that, "The prosecution case as alleged against the appellant is to the effect that on 4th November, 2014, Md. Shakur, S.I. of BSF at Baisnabnagar Police Station (P.W. 1) received secret information that two persons are going from Malda to NTPC with fake Indian currency notes. He along with others went to the local police station and with police force proceeded towards the Township More. At that spot, they found two persons sitting in a tailor shop. Upon search, eight bundles of currency notes suspected to be fake in denomination of Rs.1000/- (each bundle containing 800 pieces) valued at 8 lakhs wrapped in a coffee colour cloth bag was recovered from the appellant, Habibur Rahaman and two bundles of fake Indian currency notes in denomination of Rs.1,000/- and Rs. 500/- (one bundle containing 176 pieces and another containing 48 pieces respectively) valued at Rs. 2 lakhs was recovered from his nephew, Nasiruddin Sheikh, who was a juvenile at the time of occurrence. Other articles including genuine currency notes were also recovered. Suspected currency notes were seized under a seizure list and the aforesaid miscreants were arrested. P.W. 1 lodged written complaint at the police station resulting in registration of Baisnabnagar Police Station Case No. 435 of 2014 dated 05.11.2014 under Sections 489B/489C/120B of the Indian Penal Code. Seized notes were sent for examination and upon receipt of the report from the expert (Exhibit 3) charge-sheet was filed against the appellant and the juvenile. Case of the juvenile was sent to the Juvenile Justice Board while the appellant was tried in regular court. Charges under Sections 489B/489C were framed against the appellant. He pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined nine witnesses and exhibited a number of documents. Defence of the appellant was one of innocence and false implication. In conclusion of trial, learned trial Judge by the impugned judgement and order dated 30th March, 2016 and 31st March, 2016 convicted and sentenced the appellant, as aforesaid."

As it turned out, the Bench then after hearing both the sides and considering all the evidence before it observes that, "I have examined evidence of the witnesses in the light of the aforesaid submission. All the witnesses stated seizure list was prepared at the spot. They had also signed on the seizure list. In the seizure list place of seizure has been described as "township area" approximately 1.6 km from BNHQ and 2.5 km from Baishnabnagar. Investigating officer P.W. 9 has prepared rough sketch map of the place of occurrence wherefrom it appears that the place of occurrence was at the Township More and western side of the Township More is noted as PTS side."

Simply put, the Bench then enunciates that, "From the aforesaid materials on record it appears that the description of the place of occurrence by P.W. 7 as PTS More is a loose and casual one. Incident occurred at Township More which was noted in the seizure list contemporaneously prepared by P.W. 1. Contents of the seizure list have not been challenged. On the other hand, P.W. 1 and other witnesses have clearly proved the place of occurrence as Township More. Version of P.W. 7 with regard to place of occurrence is, therefore, to be assessed in the backdrop of other evidence on record. As appearing from the sketch map, western side of Township is described as PTS area, hence, P.W. 7 may have loosely described the place of occurrence as PTS More. Version of P.W. 7 with regard to place of occurrence is clearly reconciliable with regard with other evidence on record and does not affect the credibility of the prosecution case."

Truth be told, the Bench then acknowledges in the next para that, "P.W. 1 stated he received secret information with regard to two persons carrying counterfeit currency notes from Malda to NTPC at 6 p.m. and proceeded to work out the information. He went to the local police station and obtained police assistance. Then he proceeded to Township More and apprehended the accused persons. Entire operation continued from 7 p.m. to 11 p.m. But P.W. 5 claimed they conducted raid at 8.10 p.m. This minor variation with regard to time of commencement of raid is of little consequence when the witnesses are ad idem on the search and seizure of FICNs from the appellant. Thus, I am of the view the evidence of the official witnesses have proved the prosecution case."

It cannot be lost on us that the Bench then explicitly observes that, "It is contended independent witnesses P.Ws. 4 and 8 have not supported the case. Both of them appear to have been won over and stated in a parrot-like manner they had signed the seizure list in the police station. Falsehood in their deposition was clearly exposed when they were confronted with their earlier statements to the police. P.W. 7 categorically stated that the local witnesses had signed the seizure list at the place of occurrence."

Most significantly, what forms the root of this notable judgment is then stated wherein it is held that, "It is settled law if the evidence of the official witnesses are clear, convincing and inspire confidence, lack of support from the independent witnesses who have been won over and had turned hostile would not make a dent in the prosecution case. Hence, I am of the opinion, seizure of counterfeit notes suspected to be forged valued at Rs. 8 lakhs from the appellant and Rs. 2 lakh from the juvenile accused has been proved."

Be it noted, the Bench then mentions that, "P.Ws. 9 and 10 are the investigating officers of the case. PW 9 was the first investigating officer. He visited the place of occurrence and prepared rough sketch map with index Exhibit 5 and 5/1. He took steps to send the FICN at Salboni Mint for examination. Thereafter he handed over the case to IC Baisnabnagar P.S."

Furthermore, the Bench then observes that, "P.W. 8 collected the report from Salboni Mint and submitted charge sheet. Report from Salboni Mint has been proved as Exhibit 3. Evidence of the investigating officers clearly establish the chain of custody between the counterfeit currency notes which were seized from the possession of the appellant and those examined at Salboni Mint. Exhibit 3 proves the seized notes are counterfeit."

As we see, the Bench then remarks that, "Lastly, it is argued ingredients of offence under section 489B IPC have not been proved. Prosecution evidence clearly shows that the appellant and the co-accused was apprehended in front of a tailor shop while carry counterfeit currency notes totaling to Rs 10 lakhs."

It is worth noting that the Bench then notes that, "When the appellant was found carrying a large volume of FICNs in a public place and he is unable to give any explanation for the said possession, one can safely held the appellant was knowingly trafficking in counterfeit currency notes. Section 489B of the Indian Penal Code makes selling, buying, receiving or trafficking in counterfeit currency notes culpable. In this regard, it may be apposite to refer to the charge framed against the appellant under section 489B of the Indian Penal Code which reads as follows:-

"that you on 4.11.2014 at township More on NH 34, under Baisnabnagar PS Dist Malda attempted to use/traffic forged or counterfeit Indian currency notes of Rs. 9,76,000/- of denomination of Rs. 1,000/- each (976 pieces) and Rs. 24,000/- of denomination of Rs. 500/- each (48 pieces) and totaling Rs 10,00,000/- knowing the same to be counterfeit and as per seizure list dated 4.11.2014, a copy of which was served to you, knowing the same to be forged or counterfeit.""

Quite naturally, the Bench then distinguishably holds that, "Plain reading of the aforesaid charge shows the prosecution had put the appellant on notice that he was being accused of "attempt to sell/trafficking" in counterfeit notes. As discussed above, evidence on record unequivocally shows the appellant and co-accused were apprehended while carrying a large volume of counterfeit notes in a public place. Thus, transportation of counterfeit notes by the appellant is clearly established. Facts of the instant case are clearly distinguishable from that in Hoda Sk. vs. State of West Bengal 2020 SCC OnLine Cal 1478. In that case, no charge for trafficking of counterfeit notes had been framed by the trial court and on such premise this court was of the view the conviction under section 489B IPC on the score of trafficking could not be upheld. On the other hand, in the present case appellant had been charged of trafficking in counterfeit currency notes. Thus, conviction of the appellant under section 489B IPC does not call for interference."

As a corollary, the Bench then holds that, "In the light of the aforesaid discussion, conviction and sentence of the appellant is upheld. Appeal is accordingly dismissed."

 Needless to say, the Bench then stipulates that, "Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon the appellant in terms of Section 428 of the Code of Criminal Procedure."

What’s more, the Bench then observes that, "Copy of the judgment along with Lower Court Records be sent down to the trial court at once for necessary compliance."

Finally, the Bench then concludes by holding that, "Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities. I agree."

In summary, the Calcutta High Court Bench comprising of Justice Biyas Pattanayak and Justice Joymala Bagchi of Calcutta High Court has clearly maintained that if the evidence of official witnesses inspire confidence then lack of corroboration by hostile independent witnesses will not affect the prosecution case. All the courts must always adhere to what the Calcutta High Court has laid down in similar such cases. No denying it!