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Vetha Vs. State rep. by the Inspector of Police, Pattabiram Police station, Pattabiram - Court Judgment

LegalCrystal Citation
CourtChennai High Court
Decided On
Case NumberCrl.R.C.No. 33 of 2011
Judge
AppellantVetha
RespondentState rep. by the Inspector of Police, Pattabiram Police station, Pattabiram
Excerpt:
.....confessional statement from accused in presence of two witnesses it is stated therein that accused has stated before them that he had robbed gold items in view of section 25, section 26 of act and section 161, section 162 crpc, it is totally inadmissible however, magistrate has not only admitted, recorded such evidence but also relied on such evidence it is very clear that in recording finding, both courts have taken into account evidence which they should not have taken into account what courts have done is totally against fundamental principles of criminal law revision is allowed. (paras: 40, 41, 42) cases referred: (a) ram pukar thakur and others vs. state of bihar {air 1974 sc 284} (b) bali ahir and others vs. state of bihar {air 1983 sc 289} (c) gurja bedia and..........statement of the accused and section 27 evidence act recovery of mos-2 to 4 and the finger print evidence, convicted the accused under section 392 ipc and sentenced him to 3 years r.i. and also fined him rs.4000/- in default to undergo 6 months r.i. 6. aggrieved, the accused preferred appeal in c.a.no.31 of 2008 before the learned additional sessions judge, fast track court no.iii, tiruvallur. 7. the learned appellate judge also placing heavy reliance on the confessional statement of the accused, section 27 evidence act recovery, the evidence of the recovery witnesses pws-7 and 8 and the finger print evidence, confirmed the said conviction and sentence and dismissed the criminal appeal. that is how, the present revision by the accused. 8. the learned counsel for the revision.....
Judgment:

(Prayer: This Criminal revision is preferred under Sections 379 and 401 of Cr.P.C., against the judgment, dated 24.12.2010 made in C.A.No.31 of 2008 by the Additional Sessions Judge, Fast Track Court No.III, Tiruvallur confirming the judgment, dated 20.5.2008 made in C.C.No.302 of 2006 by the Judicial Magistrate No.II, Tiruvallur.)

The sole accused in C.C.No.302 of 2006 on the file of the learned Judicial Magistrate No.II, Tiruvallur is the revision petitioner.

2. The prosecution version of the case as against the revision petitioner in brief is as under:

(i) PWs-1 and 2 are spouses. They reside in Pattabiram in Tiruvallur District. On 4.10.2006, night, PW-2 was sleeping on the cot, while her husband/PW-1 was sleeping on the floor in the same room. Around 3 a.m., the accused snatched gold thali chain from PW-2. She raised alarm. PW-1 caughthold of his legs. However, he had managed to escape with the gold chain.

(ii) At about 4.30 a.m., at the Pattabiram Police station, PW-1 gave Ex.P-1 complaint to PW-10 Inspector. He registered this case (Ex.P-17 FIR). He visited the scene house. In the presence of PWs-4 and 5, he prepared Ex.P-2 Observation Mahazar. Drew Ex.P-18 Rough sketch. Under Ex.P-7, he seized MO-1 Crowbar from the backyard of the house. He examined the witnesses and recorded their statement under Section 161 Cr.P.C.

(iii) On the same day, at about 7 a.m., near the Nemilicherry bus-stop, in the presence of PWs-7 and 8, PW-10 arrested the accused. Recorded his confessional statement Ex.P-8. In the presence of said witnesses, the accused produced MOs-2 to 4 gold thali chain along with gold items attached to it. PW-10 seized them under Ex.P-10 Mahazar.

(iv) PW-9 Finger Print Expert lifted chance print from wooden door of the scene house. They did not tally with the finger prints of PWs-1 and 2. On comparison of it with the specimen finger print of the accused, it tallied. (Ex.P-16 Finger Print Expert's opinion). Concluding his investigation, PW-10 filed the Final Report for an offence under Section 392 IPC as against the accused before the learned Magistrate.

3. The learned Magistrate took cognizance on the Final Report. Furnished the accused copies of the documents. Upon hearing both and on consideration of the case-records, the learned Magistrate framed a charge under Section 392 IPC as against the accused. He pleaded not guilty to the charge.

4. To substantiate the charge, prosecution examined PWs-1 to 10, marked Exs.P-1 to P-18 and exhibited MOs-1 to 4. When the accused was examined on the incriminating aspects in the prosecution evidence under Section 313 Cr.P.C., he denied his complicity in this case.

5. The trial Court placing heavy reliance on Ex.P-8 confessional statement of the accused and Section 27 Evidence Act recovery of MOs-2 to 4 and the Finger Print evidence, convicted the accused under Section 392 IPC and sentenced him to 3 years R.I. and also fined him Rs.4000/- in default to undergo 6 months R.I.

6. Aggrieved, the accused preferred appeal in C.A.No.31 of 2008 before the learned Additional Sessions Judge, Fast Track Court No.III, Tiruvallur.

7. The learned Appellate Judge also placing heavy reliance on the confessional statement of the accused, Section 27 Evidence Act Recovery, the evidence of the recovery witnesses PWs-7 and 8 and the finger print evidence, confirmed the said conviction and sentence and dismissed the Criminal Appeal. That is how, the present revision by the accused.

8. The learned counsel for the revision petitioner contended that both the Courts below have fell into error in appreciating the evidence and omitted to consider evidence which they have failed to consider. Thus their findings are flawed and they need to be revised.

9. The learned counsel for the revision petitioner further contended that in the FIR the accused has been shown as an unknown accused and the identity of the accused is not known to PWs-1 and 2. While-so, in the Court, they have stated that they knew the accused, earlier, he come to their house to do electrical repair work. In such circumstances, their evidence is unreliable. However, this aspect has been overlooked by both the Courts below.

10. In this connection, the learned counsel for the revision petitioner cited the following decisions:-

(a) Ram Pukar Thakur and others vs. State of Bihar {AIR 1974 SC 284}

(b) Bali Ahir and others vs. State of Bihar {AIR 1983 SC 289}

(c) Gurja Bedia and Others vs. State of Bihar {1990 SCR (3) 572}

11. The learned counsel for the revision petitioner further contended that the prosecution has to establish the charges levelled against the accused beyond all reasonable doubts by legal evidence. There cannot be moral conviction. However, both the Courts below have adopted such an approach.

12. In this connection, the learned counsel for the revision petitioner cited the following decisions:-

(a) Gunanidhi Sundara vs. State of Orissa {1984 Crl. L.J. 1215}

(b) Mousam Singha Roy and Others vs. State of West Bengal {(2003) 12 SCC 377}

(c) Esakkiammal and another vs. State {Crl.A(MD) No.398 of 2010 dt. 12.8.2015}

13. The learned counsel for the revision petitioner further contended that since proper procedure has not been followed in obtaining the specimen finger print from the accused, the report of the Finger Print Expert/PW-9 cannot be accepted. And no specific orders have been obtained from the Magistrate to obtain specimen finger print from the accused. These aspects were omitted to be considered by both the Courts below.

14. In this connection, the learned counsel for the revision petitioner cited the following decisions:-

(a) Mohmood vs. State of U.P.{AIR 1976 SC 69}

(b) Mohd. Aman and another vs. State of Rajasthan {1997 Crl. L.J. 3567}

(c) Manepalli Anjaneyulu vs. State of A.P. {1999 Crl. L.J. 4375}

15. The learned counsel for the revision petitioner further contended that Section 27 Evidence Act recovery of MOs-2 to 4 stated to have been effected by police on the basis of the disclosure statement of the accused/Ex.P-8 is farce and it cannot be relied on.

16. The evidence of mahazar witnesses, namely, PWs-7 and 8 is false, concocted and they were chosen for the occasion. So the recovery evidence cannot be believed.

17. In this connection, the learned counsel for the revision petitioner cited the following decisions:-

(a) Khalaksing and others vs. State of M.P. {1992 Crl. L.J. 1150}

(b) Jackaran Singh vs. State of Punjab {AIR 1995 SC 2345}

(c) Maharaj Deen and another vs. State {1996 Crl. L.J. 506}

(d) Peerappa and others vs. State of Karnataka and others {(2005) ACR 698}

18. The learned counsel for the revision petitioner further contended that confession to police is inadmissible, except to the extent provided in Section 27 of the Evidence Act. However, both the Courts below have admitted and relied on the confession stated to have been made by the accused to police in Ex.P-8. This is against law. Both the Courts have taken into account the said legally impermissible evidence to convict the accused.

19. The learned counsel for the revision petitioner further contended that the findings of both the Courts were not based on proper appreciation of evidence and they suffer from legality, propriety and fundamental judicial principles.

20. The learned Government Advocate contended that the Trial Court has rightly considered certain vital aspects of the case and appreciated the evidence in proper perspective.

21. The learned Government Advocate further contended that in the Trial Court, PWs-1 and 2 have clearly identified the accused. MOs-2 to 4 have been recovered based on the confessional statement of the accused. It is a corroborative evidence under Section 27 of the Evidence Act. Further the chance finger print lifted from the scene house tallied with the specimen finger print obtained from the accused.

22. Cumulatively, all goes to show that the accused has committed the offence. Thus both the Courts have rightly recorded the conviction and appropriately punished the accused.

23. I have anxiously considered the rival submissions, perused the impugned judgments, entire materials on record and the various decisions cited.

24. Now the question is whether the conviction recorded and the sentence inflicted by the Trial Court, which has been uphold by the Appellate Court suffers from legality and propriety.

25. According to prosecution, on 4.10.2006, night, around 3 a.m., when PWs-1 and 2 were sleeping in a room in their house, the accused had robbed MOs-2 to 4 gold thali chain from PW-2.

26. PW-1 lodged the FIR. In the FIR, the accused is stated to be an unknown person.

27. In the FIR, PW-1 had stated that while they were asleep, his wife/PW-2 raised alarm, he woke up, put on the light. Thus, it is seen that before the alleged occurrence, there was darkness in the room. So they could not have seen the accused.

28. At the time of occurrence, PW-2/wife was sleeping on a cot, while her husband/PW-1 was sleeping near her on the floor. It is pertinent here to note that in the Trial Court, PWs-1 and 2 have identified the accused as the robberer. They have also stated that the accused was already known to them as earlier he had visited their house to do electrical repair work.

29. In Bali Ahir and others vs. State of Bihar {AIR 1983 SC 289}, it was held that when the accused was already known and he was not named in the FIR and during the trial when the complainant says that the accused is known to him, his evidence is unreliable.

30. When the accused was already known to PWs-1 and 2, why in the FIR the accused has been shown as an unknown accused. Further, the evidence of PW-3 would also show that some unknown person is stated to have committed robbery in the house of PW-1. In the circumstances, it is difficult to rely on the evidence of PWs-1 and 2. This aspect has been completely overlooked by both the Courts below.

31. PW-9/Finger Print Expert has lifted chance finger print from the scene house. It did not tally with the finger prints of PWs-1 and 2. PW-9 had stated that he has compared the said chance finger print with the specimen finger print of the accused and both tallied.

32. The reliability of the specimen finger print is very important. Neither in the investigation nor in the evidence of witnesses, no information as to the adopting of a genuine procedure in taking the specimen finger print from the accused has been obtained. Further, according to PWs-1 and 2, the accused did electrical repair work in their house and in such circumstances, the chances of his finger print having been found in the scene house cannot be ruled out. Further, the very specimen finger print has not been made available to the defence to test the veracity of the evidence of PW-9.

33. To establish the credibility of the specimen finger print obtained from the accused, the prosecution has to establish the genuineness, genuine manner in which such finger print has been obtained from the accused. (see Manepalli Anjaneyulu vs. State of A.P. {1999 Crl. L.J. 4375}). But, in this case, it was not so established. This aspect has been completely overlooked by both the Courts below and they simply placed reliance on the finger print evidence of PW-9.

34. MOs-2 to 4 are gold thali chain and other items attached to the same. They were stated to be recovered by the Investigation Officer based on the confessional statement/Ex.P-8 of the accused.

35. PWs-7 and 8 were examined to speak about recording of the confessional statement from the accused and recovery of MOs-2 to 4 at the instance of the accused. PWs-7 and 8 were not specific whether they have actually seen when the accused has produced MOs-2 to 4 from a particular place. Recovery of MOs-2 to 4 from the exclusive possession of the accused has to be established. However, PWs-7 and 8 were not specific as to when and from where they were recovered from the accused.

36. Actually, the very production of the articles from an hideout by the accused has to be witnessed by the mahazar witnesses. In this case, it does not show that they have so witnessed. Further, as per the evidence of PWs-1 and 2, a portion of the gold chain was snatched away by the accused and the remaining part of the gold chain was in the hands of PW-2. However, MO-2 gold chain was intact. Both the Courts below have missed this aspect.

37. In the circumstances, the Section 27 of the Evidence Act recovery, pressed into service in this case cannot be relied on.

38. It is basic, fundamental and rudimentary, that according to Section 25 of the Evidence Act, 'confession made to police is inadmissible' except when it is made 'in the presence of a Magistrate' or 'to the extent' provided in Section 27 of the Evidence Act, namely, 'so much of information' leading to the 'discovery of a fact'.

39. Unless the information stated to have been given by the accused to the police, while he was in custody of the police, is leading to the discovery of a fact, any amount of information given to the police is inadmissible. Such information cannot be acted upon. It is also because any statement given by the accused to police under Section 161 Cr.P.C., cannot be proved against the accused because of the bar under Section 162 Cr.P.C. These are all basic principles of Criminal Law, Criminal Procedure and evidence in a criminal case.

40. Now in the instant case, according to the the Investigation Officer, he had recorded the confessional statement/ Ex.P-8 from the accused in the presence of PWs-7 and 8. It is stated therein that the accused has stated before them that he had robbed the gold items from PW-2. In view of Sections 25, 26 of Evidence Act and Section 161 r/w Section 162 Cr.P.C., it is totally inadmissible. However, in the instant case, the learned Magistrate has not only admitted, recorded such evidence but also relied on such evidence.

41. In para-8 of its judgment, the Trial Court states Tamil (in his voluntary confession to police, the accused has confessed that he had stolen the jewels from the house of PW-1). Thus, the Trial Court and also the Appellate Court have relied on such inadmissible, impermissible evidence to convict the accused.

42. Thus, it is very clear that in recording the finding, both the Courts have taken into account evidence which they should not have taken into account. What the Courts have done is totally against fundamental principles of Criminal Law.

43. In view of the foregoings, the finding recorded by the Trial Court as well as by the Appellate Court suffers from legality and propriety. Consequently, the sentence of imprisonment based on such a flawed finding must also go.

44. In the circumstances, it is ordered as under:-

(a) This Criminal Revision is allowed;

(b) The conviction recorded and the sentence imposed upon the accused by the Trial Court which was upheld by the Appellate Court are set aside;

(c) The accused is acquitted from the charge under Section 392 IPC;

(d) He shall be refunded the fine amount paid by him.


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