Kochu Mani, S/O.Balan vs State Of Kerala Represented By
2023 Latest Caselaw 6644 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
           THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
     TUESDAY, THE 20TH DAY OF JUNE 2023 / 30TH JYAISHTA, 1945
                          CRL.A NO. 99 OF 2007
[AGAINST THE JUDGMENT DATED 20.09.2006 IN S.C.NO.1179/2005 ON THE
FILE OF THE ADDITIONAL DISTRICT & SESSION'S JUDGE (ADHOC), COURT-
                              III, KOLLAM]
APPELLANTS/ACCUSED NOS.3 AND 5

    1     KOCHU MANI, S/O.BALAN,
          CANALPURAMBOKKE, SIVAGIRI DESOM, VARKALA VILLAGE.
    2     JINU, S/O. ILABIBULLAH
          KUMAR HOUSE, (A5), NEAR S.N.COLLEGE, SRINIVASAPURAM
          DESOM, VARKALA VILLAGE.

          BY ADV.POOJA PANKAJ, AMICUS CURIAE


RESPONDENT/COMPLAINANT:

          STATE OF KERALA REPRESENTED BY
          THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF
          KERALA, ERNAKULAM.

          BY ADV. RANJIT GEORGE, SR.PUBLIC PROSECUTOR


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.05.2023,
THE COURT ON 20.6.2023 DELIVERED THE FOLLOWING:
 CRL.APPEAL No.99 of 2007               2

                                 JUDGMENT

The appellants are the accused numbers 3 and

of Additional Sessions Judge(Adhoc)III, Kollam.

The aforesaid case arises from Crime No.96/2004

of Paravur Police Station. As per the final

report submitted therein, six persons were

implicated as accused persons alleging offences

punishable under section 395 of the Indian

Penal Code (IPC).

2. The prosecution case is as follows:

On 10.3.2004 at about 1.30 p.m. accused

persons came in an autorickshaw bearing

registration No. KL01 J 3930, driven by the 5th

accused near the house of CW1 taking building

No.13/134 of Paravur Municipality. Thereafter,

accused Nos.1,3,4 and 6 trespassed into the

residence of CW1 after breaking open the door

at the eastern side and keeping the 2 nd and 5th

accused outside the house to guard them.

Thereafter, they committed theft of 44

sovereigns of gold ornaments and currency note

worth Rs.1,000/- kept locked in a suitcase on

the table placed in the bedroom, including two

sovereigns of gold bangles and three sovereigns

of gold chain with locket kept inside the

almirah in the dining room thereby committed

theft of gold ornaments and currency notes

worth Rs.1,55,000/-. The investigation was

conducted by the Sub Inspector of Police,

Paravur and the final report was submitted

before the Judicial First Class Magistrate

Court, Paravur, where it was taken into file as

C.P.No.58/2005. Later, the matter was committed

to the Sessions Court, Kollam, and the same was

made over to the Additional Sessions Court

(Adhoc)III, Kollam, where it was tried as

S.C.No.1179/2005. Even though the offence

alleged against the accused persons in the

final report was under section 395 IPC, the

learned Sessions Judge framed the charge

against the accused persons for the offences

punishable under Sections 380,454 and 461 r/w.

Section 34 of the IPC.

3. In support of the prosecution case,

PWs.1 to 15 were examined, Exhibits P1 to P23

were marked, and material objects 1 to 4 were

identified. After completion of the prosecution

evidence, the accused persons were examined

by the court under section 313 of the

Code of Criminal Procedure Code (Cr.PC) and

incriminating materials brought out during the

trial were put to them. All of them denied the

same and pleaded not guilty.

4. After appreciating the materials placed

on record, the learned Sessions Judge arrived

at the finding that the appellants herein, who

are accused Nos.3 and 5, are guilty of the

offences, whereas the other accused were found

not guilty. Consequently, the appellants herein

were sentenced to undergo simple imprisonment

for four years under section 380 of the IPC and

two years under section 454 and 1 year under

section 461 r/w section 34 of the IPC. This

appeal is submitted in such circumstances

challenging the aforesaid conviction and

sentence.

5. The learned counsel for the appellants

has relinquished the vakkalath; consequently,

notices were issued to the appellants. However,

service of notice to the 1st appellant was not

returned after service of notice, whereas

notice to the 2nd appellant returned unserved

with a postal endorsement 'not known'. In such

circumstances, as per the order dated

25.11.2021, this Court appointed Advocate Pooja

Pankaj as Amicus Curiae to assist the court in

considering the appeal on merits. Accordingly,

Advocate Pooja Pankaj placed her arguments

before this Court in support of the contentions

raised by the appellants. Sri.Ranjit George,

Senior Public Prosecutor, appeared for the

State.

6. The learned Amicus Curiae contended that

the conviction and consequential sentence

imposed upon the appellants are without any

justifiable reasons and are liable to be

interfered with. It is pointed out that the

conviction was ordered by the learned Sessions

Judge by merely placing reliance upon the

disclosure statements allegedly made by the

appellants, which led to the recovery of gold

from PW2, PW4 and PW11. It is further contended

by the learned Amicus Curiae that apart from

the evidence of PWs.10 and 13, the police

officers who affected the respective

recoveries, no other independent evidence are

available. All the persons from whom the

alleged recovery was affected have clearly

stated that the recovery was not affected in

the manner as claimed by the prosecution.

Besides the same, it was also contended that

the conviction is only based on the recovery

effected under section 27 of the Evidence Act,

and it is not at all safe to rely upon the same

in the absence of any other evidence linking

the article recovered with the commission of

the crime. It is pointed out that, as far as

the disclosure statements under section 27 of

the Evidence Act are concerned, the evidentiary

value of the same is confined to the knowledge

of the accused as to the concealment of the

object recovered and unless it is established

the link between the article recovered with the

crime by adducing other evidence, no conviction

could be possible. The learned Amicus Curiae

places reliance upon Pulukuri Kottaya and Ors.

v. Emperor [MANU/pr/0049/1946] and Rajeesh v.

State of Kerala [ILR 2022(1) Kerala 569] and

Muhammed Yousaf v. State of Kerala [2022(2) KLT

SN 18(C.No.16].

7. On the other hand, the learned Public

Prosecutor would oppose the aforesaid

contention. It is pointed out that even though

independent witnesses have turned hostile to

the prosecution, the evidence of the official

witnesses, such as PW10 and PW13, is sufficient

to hold the appellants guilty of the offences.

     8.    It      is      further       contended     that       the

recovery        affected       based      on   the     disclosure

statement        of     the   accused     Nos.3      and    5   would

clearly indicate the culpability of the accused

herein, which was properly appreciated by the

learned Sessions Judge. In such circumstances,

the dismissal of the appeal was sought.

9. I have gone through the records. On

examining the materials placed before me, it

can be seen that as rightly pointed out by the

learned Amicus Curiae, the learned Sessions

Judge arrived at the conclusion that the

appellants are guilty of the offences by merely

placing reliance upon the fact that the

recovery of gold ingots was affected based on

the disclosure statements. When coming to the

factual aspects of the case, it is to be noted

that the crime was registered based on the

information furnished by PW1, the owner of the

house from which the gold ornaments and the

amount were stolen. The evidence of PW1 is in

the manner as follows:

She was working as Postmistress during the

relevant period, and on that day, when she came

back to her house from her office and on

opening the front door of the residence, the

door on the eastern side of her house found

opened by breaking the iron bolt. On further

examination, she could find that the gold

ornaments kept in the suitcase, which was

locked in an almirah in the bedroom, were found

broken, and articles were taken away.

Immediately, the matter was informed to the

Police and Exhibit P15 FIR was registered after

recording Exhibit P1 F.I. statement of PW1. On

the next day, she came to know that one gold

chain of three sovereigns and one gold bangle

of two sovereigns kept by her in the cupboard

in the dining hall were also stolen. An

additional statement was also recorded by the

Police.

10. When going through the evidence of PW1,

it can be seen that, even though the act of

burglary was revealed from her statement, there

is nothing in her deposition to connect the

accused persons with the aforesaid offence. It

is discernible from the materials placed on

record that after registering the FIR based on

the information furnished by PW1, an inspection

was conducted by PW10 in the premises

immediately thereupon, along with the police

party, dog squad and fingerprint experts.

Exhibit P3 is the mahazar prepared by PW7 after

inspection of the house of PW1 and recovery of

MO1 small tin box, MO2 star screw driver and

MO3 key. Thereafter, even though an

investigation was conducted, the Police could

not find out the accused persons, and thereupon

a UN report was submitted by PW10 showing the

same as undetected. Thereafter, accused Nos.1

to 5 were arrested by PW13, the Sub Inspector

of Police, Paravur station, at a later point of

time and during the course of interrogation,

the accused made a confession statement to the

effect that they committed the crime, which is

the subject matter of this case. Immediately

PW13, based on Ext.P17(a) disclosure statement

given by the 5th accused, recovered 172 ½ grams

of gold ingots from PW2, who was conducting a

jewellery shop. Thereafter, accused persons

were produced before the jurisdictional court,

and a request for re-opening the investigation

was submitted. Further investigation was

conducted by the PW10 Circle Inspector of

Police, and during his investigation, further

recovery of gold ingots was affected. Based on

Exhibit P2(a) disclosure statement made by the

3rd accused, who is the 1st appellant herein, 28

grams of gold ingots were recovered from the

possession of PW4. Similarly, based on

Ext.P7(a) disclosure statement made by the 5th

accused, the 2nd appellant herein, 40 gms of

gold ingots were recovered from the possession

of PW11. After completing the investigation,

the final report was submitted, and the trial

in the manner as mentioned above was conducted.

11. When coming to Exhibit P17(a) disclosure

statement allegedly given by the 2nd

appellant/5th accused, which led to the

recovery of 172½ gms of gold ingots from PW2,

the crucial evidence in this regard is the

deposition of PW13. Even though PW13 deposed in

tune with the prosecution case and Exhibit P17

seizure mahazar was marked through him., the

two other witnesses who were examined to prove

such recovery viz. PW2 and PW8 turned hostile

to the prosecution. PW2 is the owner of

the jewellery shop from whom the

recovery of the gold ornaments was allegedly

affected, as evidenced by Ext.P17. He

denied the recovery of gold ingots in the

manner as contained in Ext.P17. According to

him, as per the prosecution case, recovery as

per Ext.P17 was affected on 9.3.2005. However,

PW2 had stated that, on 8.3.2005 at 9 a.m., the

Sub Inspector of Police came to his shop along

with two other police officers and required him

to appear before the Circle Inspector of

Police. Based on the same, he, along with PW8,

went to the police station. Thereupon, the C.I.

of Police informed him that the theft of gold

ornaments had occurred and accused persons had

sold a portion of the gold stolen by them in

his shop. Thus, the C.I. of the Police required

PW2 to surrender the said gold. According to

him, he denied the fact that he purchased the

stolen articles from the 5th accused. However,

according to PW2, he was detained at the police

station in the evening and upon becoming fed

up, as he was denied food and water and food,

he required PW8 to go to the shop and get the

gold to be produced before the C.I. of Police.

Accordingly, his brother's son Manaf and

another staff had taken two chains, 8 bangles,

10 pairs of studs and one bracelet, melted and

converted into gold ingots with 171 ½ gms. The

same was handed over to Paravur Police at 9

p.m. However, the C.I. of Police insisted that

176 gms should be given, and thereupon 4½ gms

of gold ingot was provided to the Circle

Inspector of Police on the next morning. PW8 is

the person who accompanied PW2 to the Police

station when all the incidents narrated by PW2

occurred. He also stated in his deposition the

sequence of events which is exactly as stated

by PW2 in his testimony.

12. Exhibit P7 is the mahazar evidencing

recovery of gold ingots weighing 40gms

recovered by PW10 on the basis of Ext.P7(a)

disclosure statement of the 2nd appellant/5th

accused. CW7 was the attestor to Ext.P7

mahazar, but the prosecution did not examine

him as he was given up in view of the fact that

he was in the Gulf country. The recovery, as

per Ext.P7, was allegedly affected from PW11,

and he denied the said recovery from him. He

denied the recovery of 40 gms of gold from his

possession, as evidenced by Ext.P7. According

to him, as the Circle Inspector of Police

required him to surrender gold which he

allegedly purchased from the 5th accused, his

mother made available to the police 80 gms of

gold. According to him, at the relevant time,

PW11 was in Pune. Similalry, 28 gms of gold

ingots was allegedly recovered as per Ext.P2(a)

disclosure statement made by the 3rd accused,

the 1st appellant herein. The aforesaid recovery

was affected from PW4, and the said mahazar was

witnessed by PW3. Both the said witnesses have

turned hostile to the prosecution. PW4, from

whose possession the recovery was allegedly

affected, stated that he made available 28

grams of gold as the police insisted on the

production of the same. He denied the recovery

of the gold in the manner as narrated in

Ext.P2.

13. Thus, on going through the evidence

adduced by the prosecution as regards the

recovery of MO1 series, which are the gold

ingots weighing 172½ gms, 28 gms and 40 gms,

respectively, it can be seen that the only

evidence available for the prosecution is the

deposition of PW10 and PW13. All the

independent witnesses examined by the

prosecution to prove the aforesaid recovery

have not only turned hostile to the

prosecution. All of them have specifically

denied that they have not purchased any

articles from the accused persons and that the

gold was made available by them to the police

as they insisted on the production of the same.

The learned counsel for the appellants places

reliance upon the decision rendered by a

Division Bench of this Court in Rajeesh's case

(supra), wherein it was observed that it is

unsafe to act upon recovery under section 27

based on the sole testimony of the

investigating officer. In paragraph 29 of the

said decision after referring to the precedents

in this regard, it was observed by this Court

in the manner as follows:

" 29. .................................. we have to caution ourselves that the evidence in the form of recovery under Section 27 of the Evidence Act is a weapon in the armoury of the investigating agency, often misused, and such evidence can be taken stock of and relied upon only when clinching evidence is adduced as regards its requirements. We shall also remind ourselves that Section 27 is only an exception to the general rule under Section 25 of the Evidence Act and, therefore, liable to be

analysed and appreciated strictly. Therefore, we repel the evidence regarding recovery of M.O.1 knife under Section 27 of the Evidence Act."

When the factual circumstances under which the

recoveries were affected in this case are

considered by keeping the principles in

Rajeesh's case (supra) in mind, I find some

force in the contention put forward by the

learned Amicus Curiae appearing for the

appellants. When considering the evidence of

PW10 and PW13 in the light of the depositions

of PW2, PW4, PW8 and PW11, I am of the view

that placing a conviction by merely relying

upon the evidence of the investigating officer

or the officer who affected the recovery is not

at all safe. In other words, the probable

conclusion that can be drawn from the

appreciation of materials available on record

is that there is a shadow of a doubt as to the

manner in which the recovery of the MO1 series

of gold ingots was affected. One of the crucial

aspects that fortify the view is that what was

stolen from the residence of PW1 were gold

ornaments, and what was recovered on the basis

of the disclosure statements of the appellants

are gold ingots. The recovery was affected

after almost one year of the theft. Thus, when

all these aspects are taken into consideration,

I am of the view that it is not safe to rely

upon the recovery alone to hold the appellants

guilty of the offence.

14. There is yet another aspect which

justifies the view taken by me as above. As

rightly pointed out by the learned Amicus

Curiae, the evidentiary value of the disclosure

statements made by the accused under Section 27

of the Evidence Act and the article recovered

consequent to such disclosure statement are

categorically considered by the Privy Council

in Pulukuri Kottaya's case (supra). The

relevant observations made in the said decision

in paragraphs 10 and 11 are extracted

hereunder:

"10. Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw, for the Crown, has argued that in such a case the "fact discovered" is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of Section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is

required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to Section 26, added by Section 27, should not be held to nullify the substance of the section. In their Lordships' view it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge; and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A", these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."

"11. High Courts in India have generally taken the view as to the meaning of Section 27 which appeals to their Lordships, and reference may be made particularly to Sukhan v. The Crown (1929) I.L.R. 10 Lah. 283, F.B. and Ganu Chandra v.

Emperor (1931) I.L.R. 56 Bom. 172, s.c. 34 Bom. L.R. 303 on which the appellants rely, and with which their Lordships are in agreement. A contrary view has, however, been taken by the Madras High Court, and the question was discussed at length in a Full Bench decision of that Court, Athappa Goundan, In re, [1937] Mad. 695, F.B. where the cases were referred to. The Court, whilst admitting that the weight of Indian authority was against them, nevertheless took the view that any information which served to connect the object discovered with the offence charged was admissible under Section 27. In that case the Court had to

deal with a confession of murder made by a person in police custody, and the Court admitted the confession because in the last sentence (readily separable from the rest) there was an offer to produce two bottles, a rope, and a cloth gag, which, according to the confession, had been used in, or were connected with, the commission of the murder, and the objects were in fact produced. The Court was impressed with the consideration that as the objects produced were not in themselves of an incriminating nature their production would be irrelevant unless they were shown to be connected with the murder, and there was no evidence so to connect them apart from the confession. Their Lordships are unable to accept this reasoning. The difficulty, however great, of proving that a fact discovered on information supplied by the accused is a relevant fact can afford no justification for reading into Section 27 something which is not there, and admitting in evidence a confession barred by Section 26. Except in cases in which the possession, or concealment, of an object constitutes the gist of the offence charged, it can seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case. It is only one link in the chain of proof, and the other links must be forged in manner allowed by law."

Thus it is evident that as far as the recovery

effected based on the disclosure statement

under section 27 of the Evidence Act is

concerned, the admissibility thereof is

confined to the knowledge of the accused as to

its concealment and the objects which were

recovered on the basis of such disclosure.

Merely because of the reason that the material

object was recovered, it cannot be concluded

that the accused are guilty of the offences

alleged against them unless there are materials

connecting the object so recovered with the

commission of the offences. Thus, the recovery

based on such disclosure statements by itself

is not a ground to hold the appellants guilty

of the offences unless there are other

materials indicating that the article recovered

was used for the commission of the crime or the

same was obtained by the accused through the

commission of the said crime. In this case,

even if it is assumed for the sake of the

argument that the MO1 series was duly recovered

based on the disclosure statements given by the

appellants herein, there are no other materials

indicating that MO1 series were the gold stolen

from the residence of PW1 and that act of

stealing of the articles was done by the

appellants. In Muhammed Yousaf's case (supra),

it has been categorically held by this Court

that no inference can be drawn against the

accused under Section 27 of the Evidence Act

only based on the recovery of material object

pursuant to the disclosure statement made by

the accused to the Police Officer. It is the

burden of the prosecution to establish a close

link between the recovery of material objects

and their use in the commission of the offence.

In this case, even after scanning through the

entire materials produced by the prosecution, I

am unable to find any link between the material

object with the commission of the crime. PW1,

in her cross-examination, had clearly mentioned

that the articles stolen from her residence

were gold ornaments, and she further deposed

that she could not say that the gold ingots

recovered by the police were made by using the

gold ornaments taken away from her residence.

No other evidence is forthcoming to establish

the link between the material object and the

commission of the crime. In such circumstances,

the finding of the learned Sessions Judge

holding the appellants guilty of the offences

by placing reliance only upon the recovery of

MO1 series of articles effected based on

disclosure statements given by the said accused

is not at all proper, and therefore it is

liable to be interfered with. As observed

above, apart from the aforesaid disclosure

statement, there is nothing to connect the

accused persons with the commission of the

offences, and since I have found that the

disclosure statements are inadequate for

holding the appellants guilty, the only

irresistible conclusion possible is that the

prosecution miserably failed in establishing

the guilt of the accused. In such

circumstances, I find merits in the contentions

raised by the learned Amicus Curiae, and the

findings entered by the learned Sessions Judge

are not legally sustainable.

In the result, this appeal is allowed. The

judgment rendered by the Court of Additional

Sessions Judge (Adhoc) III, Kollam on 20.9.2006

in S.C.No.1179/2005 is hereby set aside. The

appellants/accused Nos.3 and 5 are found not

guilty of the offences and are acquitted of all

charges accordingly. This Court is happy to

acknowledge the efforts of the learned Amicus

Curiae, Smt.Pooja Pankaj, in ably assisting

this Court to dispose of this appeal, which

were valuable and highly appreciable.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE pkk