MOHIDUL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated; 5.4.2008 passed in Sessions Trial No. 9 of July 2007 by learned Additional Sessions Judge, 2nd Court, Murshidabad thereby convicting the appellant for the offence punishable under Section 489(B) of the Indian Penal Code and sentencing him to suffer Rigorous Imprisonment for 7 years and to pay a fine of Rs. 2,000/- in default to suffer R. I. for three months and also sentencing him to suffer R.I. for 4 years and to pay a fine of Rs. 2,000/- in default to suffer R.I. for three months more for the offence punishable under Section 489(C) of the Indian Penal Code.

(2.) The factual background in a nutshell is that on 3.4.2005 around 9.35 hours Sub-Inspector Shri Sandip Kumar Sen Officer-in-Gharge of Daulatabad Police Station received a source information about the loitering of appellant Mohidul Sk. at Daulatabad Bazar area with some fake notes intending to be distributed in the local market. He rushed to Daulatabad Bazar and on being identified by the source intercepted the appellant. He was searched in presence of witnesses and on such search ten (10) numbers of fake notes of the denomination of Rs. 500/- each amongst which four numbers of fake notes were of the same number were recovered from his possession. Those fake notes were seized under seizure list in presence of witnesses and kept in a sealed envelope. Appellant/accused was arrested and taken to the police station. Sub-Inspector Shri Sen lodged a suo motu complaint and started Daulatabad Police Station Case No. 26 of 2005 dated 3.4.2005. After investigation charge-sheet was submitted against the appellant/accused under Section 489(B)/489(C) of the IPC. The case was committed to the Court of learned Sessions Judge, Murshidabad by learned Sub- Divisional Judicial Magistrate, Berhampore. It was ultimately transferred to the Court of Additional Sessions Judge, 4th Court, Murshidabad. Charge was framed under Section 489(B)/489(C) of the IPC. The Court of learned Additional Sessions Judge, 4th Court, Murshidabad was lying vacant so the matter was withdrawn from that Court and transferred to the Court of learned Additional Sessions Judge, 2nd Court, Murshidabad for trial.

(3.) Mr . Arindom Jana, learned Advocate appearing for the appellant has contended that there was delay in recording the case and the same has not been explained. He has contended further that the currency note alleged to have been recovered and seized from the possession of the accused/appellant but in course of cross-examination prosecution witness No. 7 has stated that the same were recovered and seized from his possession. He has invited my attention to the evidence of prosecution witness No. 2 who has stated that currency notes were recovered from the pocket of the accused/appellant. His further contention is that currency note was seized, from Mohidul Islam. Prosecution witness No. 3 has failed to identify .the accused/appellant. Like P.W. 3, P.Ws. 4 and 5 have also stated in course of their oral evidence that currency note were seized from Mohidul Islam. Therefore, the identity of the appellant/accused has not been properly established. It is his contention further that out of seven prosecution witnesses three witnesses have failed to identify the accused/appellant during trial. He has cited a decision (Umashanker v. State of Chhattisgarh, 2001 AIR(SC) 3074) and has contended that mens rea is the vital thing which plays a very important role in connection with the case which is in our hand. Even if it is accepted for argument sake that the currency note have been recovered from the possession of accused/appellant he must be acquitted for lacking mens rea. He has contended alternatively that the appellant is in jail since 3.4.2005 and by this time he has passed more than six years in jail. He will get a remission of two months per year according to Jail Code. The period of detention of the accused in jail may be taken into considerations, sentence of imprisonment may be modified and the appeal may be disposed of accordingly.