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State of Kerala Vs. K. Chekkootty - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Appeal No. 310 of 1965
Judge
Reported inAIR1967Ker197; 1967CriLJ1332
ActsEvidence Act, 1872 - Sections 3 and 27; Code of Criminal Procedure (CrPC) , 1898 - Sections 162 and 367; Indian Penal Code (IPC), 1860 - Sections 380
AppellantState of Kerala
RespondentK. Chekkootty
Appellant AdvocateState Prosector
Respondent Advocate V. Bhaskaran Nambiar,; C.R. Natarajan and; M.K. Ananthak
Cases ReferredAghnoo Nagesia v. State of Bihar
Excerpt:
- - on this evidence, the theft as well as the identity of the part of the chain recovered, may be held to be proved. i am satisfied that both these reasons are unsustainable......to. the bar against signed statements in section 162, crl. p. c. has no application, because the statement attested is not that of the attestors. sometimes, it happens that on questioning the accused, he makes a statement which gives information to tie police-officer which ultimately leads to the discovery of a fact, but instead of relying on that statement, the police-officer proves a later statement of the accused containing the same information, but attested by witnesses and perhaps recorded in a more formal manner. this when done, is often due to a misapprehension on the part of the officer, that his own evidence as to the information, standing by itself, may not be accepted by a court of law, but that such evidence when fortified by that of attestors might be accepted. in such a.....
Judgment:

Velu Pillai, J.

1. This appeal has been preferred by the State against the acquittal of the respondent by the Munsiff-Magistrate, Purambra, on a trial for an offence under Section 380 I. P. C. The case of the prosecution was, that at 7-30 P.M. on the 25th July. 1964, when P. W. 2 was standing near an outer-window of her house, the accused standing outside, suddenly put his hand through the window, snatched a part of the gold chain which she was wearing on her neck and disappeared with it. The rest of the chain fell into her blouse. She reported the incident to her father P. W. 1, when he came home later in the night. Me preferred a complaint, Ext. P-1 to P. W. 6, the Sub-Inspector of police, Perambra, on the next morning. During investigation P. W. 6 seized the remaining part of the chain and the blouse into which it fell. On the 27th July, on suspicion, the accused was traced and was found in a paddy field in front of the shop of P. W. 8; he was then arrested. He then told P. W. 6, that he had buried the chain near the southern boundary of Kariyotta Paramba from where it was recovered under Ext. P-5 seizure list. The statement the accused made to P. W. 6, is recorded in Ext. P-6. The accused denied the charge and said Ext. P-6 is not voluntary.

2. At the trial, the chain M. O. 1, which comprised both parts, was identified by P. W. 3, a goldsmith, as what he made for P. W. 2 for her marriage. P. Ws. 1 and 2 identified M. O. 1 and P. W. 2 testified to the theft. With a part of the chain in the possession of P. W. 2, there was little difficulty in identifying the other part. On this evidence, the theft as well as the identity of the part of the chain recovered, may be held to be proved. The Magistrate has not said anything to the contrary.

3. The important piece of evidence te connect the accused with the crime, is the information supplied by him, which led to the recovery of the chain from Kariyottu Parainba. This information is part of the statement Ext. P-6, which was made in front of the shop of P. W. S and in the presence of P.W. 7 and P. W. 8 and which was therefore attested by them. The Magistrate hold Ext. P-6 to be inadmissible chiefly for two reasons, first, that it was attested by witnesses, and second, that it embodied confessional statement as to the commission of the crime itself. I am satisfied that both these reasons are unsustainable. As for the former I feel, that the Magistrate has misunderstood the rule in Karunakaran v. Stateof Kerala, 1960 Ker LT 959, on which he has relied. The true objection to attestation of a statement under Section 27 of the Evidence Act leading to discovery is not so much to the fact of attestation, as to the object with which it is sometimes resorted to. The bar against signed statements in Section 162, Crl. P. C. has no application, because the statement attested is not that of the attestors. Sometimes, it happens that on questioning the accused, he makes a statement which gives information to tie police-officer which ultimately leads to the discovery of a fact, but instead of relying on that statement, the police-officer proves a later statement of the accused containing the same information, but attested by witnesses and perhaps recorded in a more formal manner. This when done, is often due to a misapprehension on the part of the officer, that his own evidence as to the information, standing by itself, may not be accepted by a Court of law, but that such evidence when fortified by that of attestors might be accepted. In such a case the information, let alone the statement, which leads to discovery is really that contained in the first statement, and it is therefore that, which should be proved. But when the first statement is recorded and witnesses are present, nothing in law prevents them from testifying to it and even from attesting it, though such attestation is not necessary and might go against tbe spontaneity of the statement. In the case cited, the statement of the first accused relied on which was attested, followed the statement of the second accused which contained the relevant information, and so the discovery was not in pursuance of the former; the first accused's statement was held to be inadmissible. As for the latter reason, that Ext. P-6 contained confessional statements as to the commission of theft, the Magistrate ought to have eschewed all those statements and considered only that part of Ext. P-6 whichgave information leading to discovery, viz. 'I buried . . . the chain at the southern boundary of Kariyottu Paramba and covered it with grass. I shall show the place to you.'

4. We have been taken through the evidence of P. Ws. 6 to 8 and I see no reason to doubt their veracity. According to their evidence, the accused made the statement Ext. P-6, in the presence of P. Ws. 7 and 8 and in front of the shop. This was in no sense a 'repeated statement' under Section 27 of the Evidence Act. The Magistrate's view, that Ext. P-6 was not a voluntary statement has no basis. The testimony of P. W. 8, that when the accused confessed having snatched the chain, P. W. 6 asked the accused to give evidence and point out the place where it is kept, which was relied on in support of the view, does not lead to the inference that Ext. P-6 was not a voluntary statement. The Magistrate has apparently confused information leading to discovery with the confession of an accused person recorded in accordance with the prescribed formalities. I hold, that this material piece of evidence was wrongly excluded by the Magistrate. I must state, that learned counsel for the accused did not support theMagistrate's view on the admissibility of Ext. P-6, but he pressed other contentions to maintain the acquittal of the accused.

5. According to learned counsel the recovery of a part of the chain from Kariyottu Paramba, may be the stolen chain, pursuant to information given by the accused, is not sufficient to enter a conviction for theft. It was urged, that the Paramba in which the chain was buried belonged to some one else and so the accused could not be beld to be in exclusive possession of the thing stolen. This is not one of those cases where a thing is found to be secreted in a house occupied by more than one person, or by some one other than the informant. What imputes possession to the accused is the extremely concealed manner in which the stolen thing was found, buried near the compound wall and covered with grass, under circumstances leading to the irresistible conclusion, that the place of concealment was known only to him who concealed it. In these circumstances, in the absence of any explanation by the accused as to how he came to Know about the concealment, except a bare denial of Ext. P-6, it is fair to presume that he committed theft. Aghnoo Nagesia v. State of Bihar, AIR 1966 SG 119 in which the recovery of dead bodies and a blood-stained weapon pursuant to information was by itself held to be insufficient to establish that the informant was the murderer, is hardly applicable to a case of presumption as to theft.

6. In this case there is also the circumstance, that shortly after the accused left the company of P. W. 4 and others with whom he was playing cards, there was a commotion in the house of P. W. 2 upon the commission of theft and that when P. W. 4 ran there, he found the accused among those who had collected but with an abrasion on the back of his hand, which, as contended might be caused while withdrawing his hand hurriedly through the window bars. Though when P. W. 4 asked him about the injury, the accused said he has had a fall, the accused gave no explanation as to the injury in his 342 statement. I see no reason to discredit P. W. 4. I am therefore of the opinion, that the evidence adduced by the prosecution is sufficient to fix the crime on the accused and that his acquittal by the Magistrate has to be set aside.

7. In the result, the order of acquittal a set aside and the accused is convicted under Section 380 I. P. C. and sentenced to undergo rigorous imprisonment for six months. The direction in the judgment of the Magistrate, for the return of M. O. 1 to P. W. 1, will stand.

Anna Chandy, J.

8. I agree. I only wish to add that though I do not approve of the procedure adopted by the police in recording a confessional statement of the accused with incriminating details about the actual theft and getting it signed by the accused and attested by witnesses, in the absence of any disquieting features about the recovery and in the face of the evidence of the recovery which practicallystands unchallenged that does not stand in the way of accepting and acting upon the recovery.


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