Kerala High Court
Raju Thomas vs State Of Kerala on 10 June, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 10TH DAY OF JUNE 2025 / 20TH JYAISHTA, 1947
CRL.A NO. 2375 OF 2006
AGAINST THE CONVICTION AND SENTENCE VIDE JUDGMENT DATED 02.12.2006 IN
S.C. NO.1075 OF 2003 ON THE FILES OF THE FIRST ADDITIONAL SESSIONS COURT,
KOLLAM
APPELLANT/1ST ACCUSED:
RAJU THOMAS
S/O THOMAS, RESIDING AT THE HOUSE OWNED BY AMBADI RAVI,
CHOZHIYAKKODU MURI, KULATHUPUZHA VILLAGE.
BY ADV SRI.RENJITH B.MARAR
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY ADV PUBLIC PROSECUTOR
SR PP - RENJITH GEORGE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02.06.2025, THE
COURT ON 10.06.2025 DELIVERED THE FOLLOWING:
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Crl.A. No. 2375 of 2006
2
"C.R"
JUDGMENT
Dated this the 10th day of June, 2025
The 1st accused in S.C. No.1075/2003 on the files
of the First Additional Sessions Court, Kollam, has filed this
appeal under Section 374(2) of the Code of Criminal
Procedure, 1973, challenging the conviction and sentence
imposed by the Sessions Judge as per the judgment dated
02.12.2006. The State of Kerala, represented by the Public
Prosecutor is arrayed as the sole respondent herein.
2. Heard the learned counsel for the appellant and
the learned Public Prosecutor, in detail. Perused the verdict
under challenge and the records of the trial court.
3. Parties in this appeal shall be referred as
'accused' and 'prosecution', hereafter.
4. Coming to the prosecution case, it is alleged that,
at about 8.15 p.m on 22.04.1992, after sharing common
intention to traffic fake Indian currency notes of the
denomination Rs.100/- and Rs.10/-, accused Nos.1 and 2,
possessed the said notes and used the same as genuine.
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Accordingly, the accused were arrested and the alleged
fake notes were taken into custody. It is on the said
premise, the prosecution alleges commission of offences
punishable under Section 489 B and C read with 34 of the
Indian Penal Code, by accused Nos. 1 and 2.
5. After, framing charge for the offences under
Section 489 B and C read with 34 of the IPC, the trial court
recorded evidence and tried the matter. PWs 1 to 11 were
examined, Exts.P1 to 15 and MOs 1 to 3 were marked on
the side of the prosecution. Even though, the accused were
given opportunity to adduce defence evidence after
questioning them under Section 313(1)(b) of Cr.P.C, they
did not opt to adduce any defence evidence.
6. On appreciation of evidence, the trial court found
that the 1st accused is guilty for the offence punishable
under Section 489 B and C read with 34 of the IPC. The
conviction and sentence imposed by the trial court against
the 1st accused are extracted as under:
(a) 1st accused is sentenced to undergo
rigorous imprisonment for a period of four
years and a fine of Rs.5,000/-. In default to
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undergo simple imprisonment for a further
period of one year u/s 489 B I.P.C.
(b) 1st accused is also sentenced to
undergo rigorous imprisonment for a period of
two years and a fine of Rs.2000/- and in default
to undergo simple imprisonment for a further
period of six months u/s 489 C I.P.C.
(c) The sentence shall run concurrently.
(d) The period of detention undergone by
the 1st accused in this case will be set off
against the substantive sentence of
imprisonment.
7. Further, the 2nd accused was acquitted by the
trial court for the reason that, the counterfeit currency note
recovered from him was given by the 1st accused.
8. The learned counsel for the appellant/1 st accused
raised multiple challenges, while assailing the verdict of the
trial court. The prime and foremost challenge is that, there
was delay in producing the alleged fake currency notes
recovered from the accused before the Court and also
forwarding the same to the FSL. According to the learned
counsel for the appellant, even though the alleged fake
currency notes marked as MO1 series and MO2, which were
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seized from the accused, at about 8.15 pm on 22.04.1992,
as per Ext.P11 property list, the currency notes recovered
from the 1st and 2nd accused reached the Court only on
25.04.1992, as evident from Ext.P8 and Ext.P9 search lists
produced before the Court. It is also pointed out by the
learned counsel for the appellant/1 st accused that, on house
search of the 1st accused, two fake currency notes having
denomination of Rs.100/- and three fake currency notes
having denomination of Rs.10/- were recovered as per
Ext.P4 mahazar on 23.04.1992 and the same produced
before the Court only on 29.04.1992. Similarly, non
production of forwarding note of the MOs sent for FSL
Report also was pointed out as a serious flaw in the
prosecution case. According to the learned counsel for the
appellant/1st accused, even though no forwarding note
produced before the Court, Ext.P14 series FSL reports
would suggest that, the currency notes examined by the
expert are fake notes and the fake notes reached the FSL
on 22.04.1998 i.e. after six years. So, according to the
learned counsel for the appellant/1 st accused, the delay in
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producing MOs 1 to 3 before the Court as well as sending
the same to the FSL, is fatal to the prosecution and this
much delay would cast doubt on the genuineness of the
prosecution case in the matter of forwarding the recovered
MOs itself for scientific examination. Therefore, the same is
a point to the adjudged in favour of the appellant/1 st
accused.
9. According to the learned counsel for the
appellant, in this matter, even though MO3 series notes
were seized by preparing Ext.P4, the authorship of
concealment and recovery thereto as mandated by law are
not deposed by the Investigating Officer before the Court,
who was examined as PW7. Therefore, for the said reason,
recovery of MO3 series is not proved within the mandate of
law and the same also is a point to be adjudged in favour of
the 1st accused/appellant. In this connection, the learned
counsel for the appellant placed decision of the Apex Court
reported in [2024 (1) KLD 679 (SC)] Babu
Sahebagouda Rudragoudar v. State of Karnataka ,
wherein, the Apex Court held as under:
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"The statement of an accused recorded
by a police officer under Section 27 of the
Evidence Act is basically a memorandum of
confession of the accused recorded by the
Investigating Officer during interrogation
which has been taken down in writing. The
confessional part of such statement is
inadmissible and only the part which distinctly
leads to discovery of fact is admissible in
evidence as laid down by this Court in the
case of State of Uttar Pradesh v. Deoman
Upadhyaya.
63. In the case of Mohd. Abdul Hafeez v.
State of Andhra Pradesh, it was held by this
Court as follows:-
"If evidence otherwise confessional in
character is admissible under Section 27 of
the Indian Evidence Act, it is obligatory upon
the Investigating Officer to state and record
who gave the information; when he is dealing
with more than one accused, what words were
used by him so that a recovery pursuant to
the information received may be connected to
the person giving the information so as to
provide incriminating evidence against that
person." Similar view was taken by this Court
in the case of Ramanand @ Nandlal Bharti v.
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State of Uttar Prades, wherein this Court held
that mere exhibiting of memorandum
prepared by the Investigating Officer during
investigation cannot tantamount to proof of its
contents. While testifying on oath, the
Investigating Officer would be required to
narrate the sequence of events which
transpired leading to the recording of the
disclosure statement.
Further, in the case of Subramanya v.
State of Karnataka, it was held as under:
"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,
the site of burial of the dead body, clothes
etc., 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
would 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 etc. When the accused while in
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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 Section 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
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the discovery panchnama as contemplated
under Section 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."
10. It is argued by the learned counsel for the
appellant/1st accused further that, even though recovery of
MO1 series from the 1st accused and recovery of MO2 notes
from the 2nd accused found to be proved by the trial court,
the trial court acquitted the 2nd accused and convicted the
1st accused alone, on finding that he alone committed the
offences. According to the learned counsel for the accused,
the trial court should have given benefit of doubt given to
the 2nd accused to the 1st accused also. Contra view taken
by the trial court is wrong. Therefore, the finding of the trial
court that the 1st accused committed the offence
punishable under Section 489 B and C of the IPC is patently
wrong and the same would require interference.
11. Per contra, the learned Public Prosecutor, who
supported the conviction and sentence imposed by the trial
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court against the 1st accused submitted that, recovery of
MO1 and MO3 series from the possession of the 1 st
accused is proved satisfactorily and MO1 series were
recovered when the 1st accused used the same as genuine
notes at the cash counter of a liquor shop. Therefore, the
possession and use of counterfeit currency notes found as
fake currency notes as per Ext.P14 series FSL reports,
would substantiate that the 1st accused committed the
offence punishable under Section 489 B and C of the IPC.
Therefore, the conviction and sentence are liable to be
confirmed.
12. In view of the rival submissions, the points arise
for consideration are:
1. Whether the trial court went wrong in
finding that the 1st accused/appellant
committed the offence punishable under
Section 489B of the IPC and thereby convicted
and sentenced the 1st accused?
2. Whether the trial court went wrong in
finding that the 1st accused/appellant
committed the offence punishable under
Section 498C of the IPC and thereby convicted
and sentenced the 1st accused?
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3. Whether the verdict of the trial court
would require interference?
4. Order to be passed?
13. In this matter, the prosecution case is that,
accused Nos.1 and 2 with common intention to traffic fake
Indian currency notes and use the same as genuine,
possessed MOs 1 to 3 counterfeit currency notes and the
same were recovered by the Police. PW7 is the detecting
officer and he had given evidence that, at about 8.15 p.m.
on 22.04.1992, while he was on duty at the Police Station, he
got information regarding a quarrel at the foreign Liquor
shop in Kulathupuzha Junction. The information was that,
some people had brought counterfeit currency notes to the
cash counter of the foreign liquor shop. Soon, PW7
proceeded to the place of occurrence, along with the Police
party. When he reached the liquor shop, he saw that accused
Nos.1 and 2 were standing near the cash counter and there
were others also at the cash counter. On questioning the
staff at the cash counter, he was told that accused Nos.1 and
2 gave counterfeit currency notes and tried to exchange the
same for the liquor they consumed. It was also stated by the
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staff that, the 2nd accused possessed the currency notes and
it was found by PW7 that the 2 nd accused possessed fake
currency note of Rs.100/-. The 2nd accused confessed before
the Police that the said counterfeit currency note was given
by the 1st accused, which was marked as MO2. When the 2 nd
accused was questioned again, he told PW7 that, he was not
in possession of the said note. Later, in the presence of
witnesses, when the body of the 1 st accused was searched, it
was found that he possessed three fake currency notes for
the denomination of Rs.100/- and also 21 fake currency
notes of Rs.10/-. MO1 series are the notes recovered from
the 1st accused and MO2 is the note recovered from the 2 nd
accused. Ext.P1 is the mahazar pertaining to recovery of
MO1 series and MO2. On the basis of Ext.P1, FIR was
registered. PWs 1 and 2 are two independent witnesses
examined by the prosecution, who are the staff of the foreign
liquor shop, where the alleged incident took place. They
admitted their signatures in Ext.P1 mahazar pertaining to
recovery of MO1 series and MO2. Though, PW1 has admitted
his signature in Ext.P1 mahazar, when he was asked about
the occurrence, he stated that he was not present at the
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liquor shop on the day of occurrence. Similarly, PW2 also
admitted his signature in Ext.P1, his version is that he put
signature in Ext.P1 at the Police Station and he was not
aware of the notes shown to him. Thus, the independent
witnesses, who singed Ext.P1 recovery mahazar turned
hostile to the prosecution. PW3 is an independent witness,
who was examined to prove Ext.P4 mahazar, prepared by
PW7, at the time of search of the house of the 1 st accused,
whereby MO3 series were recovered. During examination of
PW3, though he admitted signature in Ext.P4, it was deposed
that he was not aware about the recovery. Accordingly, PW3
was also declared as hostile. The prosecution case is that,
the 1st accused was residing in the house managed by PW4
on rent at the time of recovery. But, PW4, who was managing
the house that belonged to the brother of his father-in-law,
denied having given the said house to the 1 st accused. His
evidence is that the house was given for rent to one Shaji.
Thus, independent witnesses to prove the recovery of MO1,
MO2 and MO3, in fact, not supported the same and the
evidence of PW7 is the sole evidence available in this regard.
14. On perusal of the evidence given by PW7, it could
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be gathered that, PW7 failed to depose about the authorship
of concealment spoken by the 1st accused, which led to
recovery of MO3 series. As per the ratio laid down by the
Apex Court in Babu Sahebagouda Rudragoudar's case
(supra), it is obligatory upon the Investigating Officer to
state and record who gave the information, what words
were used by him so that a recovery pursuant to the
information received may be connected to the person
giving the information so as to provide incriminating
evidence against that person. If so, recovery of MO3 series
under Section 27 of the Indian Evidence Act, could not be
held as proved sufficiently, otherwise the recovery is in
serious doubt.
15. The cardinal argument at the instance of the
learned counsel for the appellant/1 st accused is by pointing
out the delay in sending the MOs before the Court and also
non production of forwarding note of the MOs for sending
the same to the FSL for scientific examination. It is true
that, MO1 series and MO2 were recovered from the 1 st and
2nd accused respectively, at about 8.15 pm on 22.04.1992.
But, as per Ext.P11 property list, the same reached the
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Court only on 25.04.1992. Similarly, recovery of MO3 series
from the house of the 1 st accused as volunteered by him
was on 23.04.1992. But, the MO3 was produced before the
Court as per Ext.P11 property list only on 29.04.1992. The
argument of the learned counsel for the appellant/1 st
accused, while challenging the conviction and sentence
imposed by the trial court against the 1 st accused, is by
highlighting the delay in producing the alleged fake
currency notes recovered from the accused. It is worthwhile
to note that, the prosecution failed to produce the
forwarding note pertaining to production of MOs before the
FSL for getting scientific opinion. As per Ext.P14 series FSL
reports, it was stated that the MOs were forwarded to the
FSL on 22.04.1998. If so, the forwarding of the alleged fake
currency notes, recovered on 22.04.1992 and 23.04.1992
was done after six years i.e. on 22.04.1998.
16. In cases where the recovered items alone are
decisive to find the offence alleged to be committed by the
accused, it is absolutely necessary that those items should
be produced before the Court at the earliest opportunity,
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preferably on the next day, unless sufficient reasons for its
non production on the next day, acceptable to the Court not
offered and established. No doubt, when MOs produced
before the Court even after one day, with sufficient
explanation for such delayed production, the Court can
consider the same. Similarly, the items so produced before
the Court shall be forwarded to the FSL, within a reasonable
time, at least within a period of one month, taking note of
the procedural formalities regarding preparation of
forwarding note etc. If, the recovered items were not
forwarded to the FSL, within a period of one month at least,
there must be justification regarding the delay occurred,
acceptable to the Court.
17. In the instant case, apart from the delay in
producing the MOs before the Court as already pointed out,
Ext.P14 series FSL reports would show that MOs were sent
for chemical analysis report only on 22.04.1998 i.e. after six
years from the date of recovery. The reasons for the delay
not properly or even remotely explained in this case and
the same is fatal to the prosecution. Having noticed the
delay in production of MOs before the Court and most
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importantly, the inordinate delay of six years in sending the
same to the FSL, it could not be ensured that the disputed
fake currency notes recovered from accused Nos.1 and 2
itself reached the FSL without being tampered or altered.
The delay would shadow doubt regarding this aspect. To be
more explicit, in cases involving delay in producing the
recovered MOs before the Court and sending the same to
the FSL, as discussed herein, it could not be said that the
items recovered from the accused itself reached the hands
of the expert to examine its nature and the said procedural
irregularity would go to the root of the matter.
18. It is interesting to note that, the available
evidence would prove that, MO2 was recovered from the 2 nd
accused. But the trial court acquitted the 2 nd accused, on
the ground of a confession made before PW7 by the 2 nd
accused that, MO2 was handed over by the 1 st accused. It is
strange to note that that, in this case, the 2 nd accused was
the person who had allegedly given the fake currency note
of Rs.100/- to the liquor shop counter. If so, recovery of the
same, if found to be established, the trial court could not
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acquit the 2nd accused, merely on the basis of confession
given by the 2nd accused before PW7. When, on the same
evidence, one accused is acquitted, similar benefit should
be given to the co-accused to avoid discrimination among
accused, who faced trial, where common evidence
regarding their complicity was let in.
19. Having found so, I am of the view that the trial
court went wrong in finding that the 1 st accused committed
the offences punishable under Sections 489 B and C read
with 34 of the IPC, since the prosecution failed to prove the
case beyond reasonable doubts. Therefore, the 1 st
accused/appellant herein is entitled to the benefit of doubt
and as such the conviction and sentence imposed by the trial
court in the above circumstances cannot sustain. It is
strange to note that, once the 2nd accused was acquitted by
the trial court for the offences punishable under Sections
489 B and C of the IPC, how could Section 34 of IPC come
into place. In view of the matter, the conviction and
sentence imposed by the trial court against the 1 st
accused/appellant are liable to be set aside.
20. In the result, the appeal is allowed. Conviction and
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sentence imposed by the trial court against the appellant/1 st
accused are set aside. Consequently, the appellant/1 st
accused is acquitted for the offences under Sections 489 B
and C read with 34 of the IPC . The bail bond executed by the
appellant/1st accused shall stand cancelled. He is set at
liberty forthwith.
Amount, if any, being part of the fine deposited by the
appellant/1st accused by order of this Court shall be refunded
to him, in accordance with the procedure established by law.
Sd/-
A. BADHARUDEEN
SK
JUDGE
