Kannan @ Shibu vs State Of Kerala

Johnson John, J

The appellants are accused Nos. 2, 4 and 5 in S.C. No. 316 of 2007 on the file of the Additional Sessions Judge (Adhoc), Fast Track Court No.I, Thrissur and they are challenging the conviction and sentence imposed on them for the offence under Section 395 IPC.

The prosecution case is that the accused persons, 8 in number, hatched a criminal conspiracy to commit robbery of the gold ornaments of PW11 and as per the instruction of the 4th accused, the 2nd accused informed the 1st accused that a box containing gold ornaments of PW11 is being transported in an auto rickshaw driven by PW9 and that CW1 along with PWs 10 and 17 are travelling in the said autorickshaw to Thrissur Railway Station on the night of 19.05.2003 and on getting the said information, the accused persons chased the said autorickshaw in car bearing registration No. KL-8V 8075 and after blocking the autorickshaw with the car at a place near Kanimangalam at about 8.15 p.m., the accused persons robbed the box containing the gold ornaments after pulling out CW1 from the autorickshaw and pushing him down. The accused are thereby alleged to have committed the offences punishable under Sections 120B and 395 of IPC.

Since accused Nos. 1, 6 and 7 were absconding, the trial court framed charge under Sections 120B and 395 of IPC against accused Nos. 2 to 5 and 8 and when they pleaded not guilty to the charge, PWs 1 to 18 were examined and Exhibits P1 to P24(b) and MOs 1 to 19 were marked from the side of the prosecution. During the course of trial, the third accused also absconded.

After closing the prosecution evidence, the accused persons 2, 4, 5 and 8 were questioned under Section 313 Cr.P.C and no defence evidence was adduced.

After hearing both sides and considering the oral and documentary evidence on record, the learned Additional Sessions Judge, as per the impugned judgment dated 29.03.2008, found accused Nos. 2, 4 and 5 guilty of the offence under Section 395 of IPC and not guilty of the offence under Section 120B of IPC.

The trial court also found the 8th accused not guilty of the offence under Sections 120B and 395 of IPC and accused Nos. 2, 4 and 5 are sentenced to undergo rigorous imprisonment for 7 years each and to pay a fine of Rs.5000/- each and in default of payment of fine, to undergo rigorous imprisonment for 3 months each under Section 395 IPC.

Heard Sri. Vijaya Bhanu, the learned Senior Counsel appearing for the appellants and Sri. Sanal P. Raj, the learned Public Prosecutor and perused the records.

The point that arises for consideration in this appeal is whether the conviction and sentence passed against the appellant/accused are legally sustainable.

The learned counsel for the appellants argued that all the occurrence witnesses turned hostile to the prosecution and that the conviction based on the alleged recovery of MOs 3 to 15 on the basis of the alleged confession statement of accused Nos. 2, 4 and 5 is not legally sustainable, in as much as the prosecution has not succeeded in establishing the conditions necessary for the applicability of Section 27 of the Indian Evidence Act. It is also argued that there is no satisfactory evidence regarding the identity of MOs 3 to 15 as the subject matter of the crime and that the evidence of PW11 in this regard is vague and not trustworthy.

The learned Public Prosecutor argued that MOs 3 to 15 were recovered on the basis of the confession statement of the accused persons while in the custody of the Investigating Officer and that the evidence of PW11 regarding the identity of MOs 3 to 15 as the subject matter of the crime is reliable and therefore, there is no reason to interfere with the impugned judgment.

In this case, the prosecution is relying on the evidence of PW18, Investigating Officer who recorded the confession statement of accused Nos. 2, 4 and 5 while in custody and effected recovery of MOs 3 to 15 identified by PW11 as his gold ornaments and also the presumption under Section 114(a) of the Indian Evidence Act in support of the conviction of the appellants for the offence under Section 395 IPC. It is pertinent to note that PWs 1 to 3, 9, 10 and 12 to 17 turned hostile to the prosecution and none of the witnesses examined to prove the occurrence identified the appellants or deposed anything regarding their involvement in the alleged occurrence.

According to PW18, he arrested the second accused at 11 p.m. on 23.05.2003 and on questioning the 2nd accused, he stated that gold chains are kept under the bed in the bedroom of his house and he will take out and hand over the same, if he is taken to that place and on the basis of the said information, PW18, along with the 2nd accused, reached house bearing No.1/283 of Avanoor Panchayat and the 2nd accused took out a bag kept on the bed in the eastern room of the said house and handed over the same to PW18. The relevant portion of the disclosure statement of the second accused is marked as Exhibit P12(a) and the bag recovered is identified as MO17 and the gold chains as MOs 6 to 8. PWs 13 and 15, the witnesses examined to prove the seizure of MOs 6 to 8 as per Exhibit P12 seizure mahazar, turned hostile to the prosecution and stated that they have not witnessed the recovery as per Exhibit P12 seizure mahazar.

PW18 deposed that he arrested the 4th accused on 24.05.2003 and on questioning the 4th accused, he stated that chains are kept in the drawer of a table under lock and key and if he is taken to that place, he will take and hand over the chains and on the basis of the said information, PW18 along with the 4th accused reached building bearing No.13/606 of Cherpu Panchayat and the 4th accused unlocked the drawer of the table and took out two gold chains and handed over the same to PW18 and the same was recovered by preparing Exhibit P14 mahazar. The relevant portion of the disclosure statement of the 4th accused is marked as Exhibit P14(a). PW18 also identified MOs 12 and 13 gold chains recovered as per Exhibit P14 mahazar. PW14 is the witness examined to prove the recovery as per Exhibit P14 mahazar. But, he turned hostile to the prosecution and deposed that he has not witnessed the recovery as per Exhibit P14 mahazar.

PW18 deposed that when the 5th accused surrendered before the court, he obtained custody of the 5th accused from the court and on questioning the 5th accused, he stated that he had put the gold chains in a plastic carry bag and concealed the same by digging a pit in the public burial ground at Kanimangalam and if he is taken to that place, he will take out and hand over the same. According to PW18, on the basis of the said information, he reached the public burial ground at Kanimangalam along with the 5th accused on 25.08.2003 and the 5th accused took out the plastic cover containing the gold chains and the same was recovered as Exhibit P1 mahazar. The relevant portion of the confession statement of the 5th accused is marked as Exhibit P1(a) and the gold chains recovered as per Exhibit P1 mahazar are identified as Mos 14 and 15.

The learned counsel for the appellants argued that the evidence of PW18 and Exhibits P12(a) and P14(a) do not reveal the authorship of concealment for the applicability of Section 27 of the Indian Evidence Act. It is also pointed out that the alleged occurrence in this case was on 19.05.2003 and the alleged recovery of MOs 14 and 15 on the basis of Exhibit P1(a) confession statement of the 5th accused was on 21.08.2003 and therefore, it cannot be held that the 5th accused was in possession of stolen goods soon after the theft for the applicability of the presumption under Section 114(a) of the Evidence Act. The Honourable Supreme Court in Shahaja @ Shahajan Ismail Mohd. Shaikh v. State of Maharashtra [2022 SCC Online SC 883], held thus:

“Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source also. He might have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered the weapon, he was the person who had concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the substantive evidence as regards the discovery of weapon is that the appellant disclosed that he would show the weapon used in the commission of offence.”

In Dudh Nath Pandey v. State of U.P. [(1981) 2 SCC 166 : AIR 1981 SC 911], the Honourable Supreme Court observed that the evidence of discovery of pistol at the instance of the appellant cannot, by itself, prove that he who pointed out the weapon wielded it in the offence. The statement accompanying the discovery was found to be vague to identify the authorship of concealment and it was held that pointing out the weapon may, at the best, prove the appellant's knowledge as to where the weapon was kept.

The Honourable Supreme Court in Ramanand @ Nandlal Bharti v. State of Uttar Pradesh [2022 KHC 7083], held in paragraphs 53 and 54 as follows:

If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of S.27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under S.27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter.

The reason why we are not ready or rather reluctant to accept the evidence of discovery is that the investigating officer in his oral evidence has not said about the exact words uttered by the accused at the police station. The second reason to discard the evidence of discovery is that the investigating officer has failed to prove the contents of the discovery panchnama. The third reason to discard the evidence is that even if the entire oral evidence of the investigating officer is accepted as it is, what is lacking is the authorship of concealment. The fourth reason to discard the evidence of the discovery is that although one of the panch witnesses PW – 2, Chhatarpal Raidas was examined by the prosecution in the course of the trial, yet has not said a word that he had also acted as a panch witness for the purpose of discovery of the weapon of offence and the blood stained clothes. The second panch witness namely Pratap though available was not examined by the prosecution for some reason. Therefore, we are now left with the evidence of the investigating officer so far as the discovery of the weapon of offence and the blood stained clothes as one of the incriminating pieces of circumstances is concerned. We are conscious of the position of law that even if the independent witnesses to the discovery panchnama are not examined or if no witness was present at the time of discovery or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the discovery evidence unreliable. In such circumstances, the Court has to consider the evidence of the investigating officer who deposed to the fact of discovery based on the statement elicited from the accused on its own worth.”

In this case, the independent witnesses examined from the side of the prosecution to prove the alleged recovery has turned hostile to the prosecution and the evidence of PW18 does not reveal the authorship of concealment and I find that the evidence of PW18 regarding the recovery does not satisfy the requirements for the applicability of Section 27 of the Indian Evidence Act as laid down by the Honourable Supreme Court in Ramanand’s case cited supra.

In the impugned judgment, conviction for the offence under Section 395 IPC is on the basis of the presumption under Section 114(a) of the Indian Evidence Act. But, I find force in the argument of the learned counsel for the appellant that only in those cases where mere possession or concealment of the subject matter of the offence by itself is an offence and such possession or concealment is proved by the recovery evidence, a conviction is possible without any further corroborative evidence. In this connection, it is pertinent to note that PW11 merely identified MOs 3 to 15 as his gold ornaments without mentioning its model, fashion or identifying features. In cross examination, when a specific suggestion is made to PW11 that MOs 3 to 15 do not belong to him, the witness stated that his gold ornaments bear a special seal. Even though, PW11 denied the suggestion of the defence that there is no such seal in MOs 3 to 15, there was no attempt from the side of the prosecution to identify the presence of any seal in MOs 3 to 15.

Further PW11 has also not deposed anything regarding the nature of the special seal said to be affixed in his gold ornaments. The evidence of PW11 shows that he is having licence to conduct sale of the gold ornaments and therefore, in the absence of satisfactory evidence regarding the identifying features of the gold ornaments alleged to be robbed on the night of 19.05.2003 from the possession of CW1, who was not examined as a witness in this case for the reason that he left India, I find that the accused/appellants are entitled for the benefit of reasonable doubt and that the prosecution has not established beyond reasonable doubt that MOs 3 to 15 are the subject matter of the crime.

In view of my findings above, the appeal is liable to be allowed. In the result, the appeal is allowed and the conviction and sentence imposed on the appellants/accused Nos. 2, 4 and 5 in S.C. No. 316 of 2007 on the file of the Additional Sessions Judge (Adhoc), Fast Track Court No.I, Thrissur is set aside and they are acquitted. Their bail bond shall stand cancelled and they are set at liberty. Interlocutory applications, if any pending, shall stand closed.