Madras High Court
Selvaraj vs The State Rep. By on 10 November, 2016
Author: P.Devadass
Bench: P.Devadass
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.11.2016 CORAM THE HON'BLE DR.JUSTICE P.DEVADASS Crl.R.C.No.16 of 2011 1 Selvaraj 2 Ravi .. Petitioners/Accused 1 & 2 Vs. The State rep. by The Inspector of Police, Vadalur Police Station, Cuddalore District .. Respondent/Complainant (Crime No.69/2006) This Criminal revision is filed under Section 379 & 401 of Cr.P.C., against the judgment made in C.A.No.73 of 2008, dated 29.9.2010 on the file of the Additional Sessions Judge (Fast Tract Court No.II), Cuddalore confirming the judgment, dated 18.8.2008 of the Judicial Magistrate No.III, Cuddalore in C.C.No.85 of 2006, dated 18.08.2008. For Petitioners : Mr.S.N.Arunkumar for Mr.C.Ramkumar For Respondent : Mr.R.Sekar, G.A.(Crl.side) ***** O R D E R
A-1 and A-2 in C.C.No.85 of 2006 on the file of the learned Judicial Magistrate No.III, Cudddalore are the revision petitioners.
2. They were tried for the offences under Sections 457 and 380 I.P.C. before the said Court.
3. To substantiate the charges, prosecution examined P.Ws.1 to 11, marked Ex.P1 to P14 and exhibited M.Os.1 to 3.
4. Relying on the said evidence, the trial Court convicted and sentenced them as under:
Conviction Sentence
(i) 457 I.P.C One year R.I. and fine Rs.1000/- each
(ii) 380 I.P.C.
One year R.I.and fine Rs.1000/- each Both sentences were directed to run concurrently. Fine amount paid.
5. The case of the prosecution briefly runs as under:
P.Ws.1 and 3 are spouses. P.Ws.2 and 4 are their sons. They are residing in Karunguzhi in Cuddalore district. On 25.3.2006, P.Ws.1 and 3 have left Puducherry. They returned home on 27.3.2006. There was house-breaking. 25 sovereigns of gold jewels and cash Rs.1,25,000/- were missing from the bureau. Inspite of search, they cannot be found. On 29.3.2007, at Vadalur Police station, P.W.1 gave Ex.P1 complaint to P.W.10 S.I. of Police. He registered this case (Ex.P10 F.I.R.). P.W.11 Inspector took up his investigation. He visited the scene house. Prepared Ex.P2 Observation Mahazar in the presence of P.W.6 and another person. Drew Ex.P11 Rough sketch. At a place, near Vadalur, P.W.1 seized gold chain from A-1 based on his confessional statement Ex.P3. It was witnessed to by P.W.7 and one Rajendran. P.W.11 also recorded Ex.P7 confessional statement from A-2 in the presence of P.Ws.8 and 9 and recovered gold jewel under Mahazar in the presence of said witnesses. A-1 and A-2 were produced before the Court. Case properties were also produced before the Court.
6. The trial Court solely relying on Sec.27 Evidence Act recoveries, convicted and sentenced them.
7. Aggrieved, A-1 and A-2 preferred an appeal in C.A.No.73 of 2008 before the learned Additional Sessions Judge (Fast Track Court No.2), Cuddalore.
8 The learned Appellate Judge confirmed their conviction and sentence and dismissed the appeal. In the circumstances, they have directed this revision.
9. The learned counsel for the revision petitioners contended that the available evidence as against A-1 and A-2 is Section 27 Evidence Act recovery. In this case, it is a stage- managed. It is a drama. It is a make-believe affair. No prudent man will believe this artificial recovery. There is inconsistencies in the evidence of the prosecution witnesses. Further, the evidence of recovery witnesses would show that they have not actually seen the recoveries. Based on such evidence, a conviction cannot be sustained.
10. In this connection, the learned counsel for the revision petitioners cited Vijayakumar @ Kutty Vs. State through Inspector of Police, Kovilpatti East Police Station, Thoothukudi Dist. (2012(1) MWN (Cr.) 463 (DB) and Chinna Pillai & another Vs. State through the Inspector of Police, Krishnagiri (MANU/TN/1068/2012).
11. On the other hand, the learned Govt. Advocate (Crl.side) submitted that in this case the recovery evidence is clinching. The case properties were recovered based on the confessional statement of the accused. Recovery items belongs to P.W.1. Recovery witnesses P.Ws.7 and 9 have clearly stated about recording of the confession and recovery of the gold items. This evidence is sufficient to convict the accused. In the circumstances, the trial Court as well as the Appellate Court have rightly convicted and punished them.
12. I have anxiously considered the rival submissions, perused the impugned judgments, entire materials on record and also the decisions cited at the bar.
13. Now, the question is whether the finding of guilty recorded by both the Courts below suffers from legality and propriety.
14. This case is solely based on Sec.27 Evidence Act recovery. With respect to recovery of M.Os.1 and 2, the prosecution relied on the evidence of P.Ws.7 and 9. The recoveries were stated to have been effected by P.W.11 Investigation officer. M.Os.1 and 2 gold chain belong to P.W.1/defacto complainant who identified them as of his own.
15. The question arose whether both Courts were right in recording finding of guilty solely based on the evidence of P.Ws.7, 9 and 11 and Ex.P3 and P6 confessional statements.
16. With respect to recovery from A-1, P.W.7 has been examined. The recoveries stated to have taken place nearly 6 months after the occurrence. In his chief examination, P.W.7 stated that at about 9.30 a.m., near tea stall, in Vadalur, A-1 was having 5-1/2 sovereigns of gold chain M.O.2 in his hand and some policemen were around him. A-1 is stated to be a robberer. Whether he would carry the stolen item/s openly is a million dollar question. No prudent man will believe this. Further, in his cross examination, P.W.7 stated that the police had obtained his signatures in some papers. It indicates that P.W.7 has not witnessed the recovery. The same is to be viewed along with the subsequent recovery stated to have been effected based on the confessional statement of A-1 from one Nataraj's land in Karunguzhi.
17. With respect to the recovery from A-2, P.W.9 has been examined. P.W.9 says that at about 9.45 a.m. when he came out of Anandha Bhavan hotel in Vadalur, A-2 was having 2 sovereigns of gold chain in his hand and policemen were also there. He too did not directly witnessed the actual recovery of jewel. The other witness P.W.8 turned hostile. Further, P.W.9 flately stated that he did not know anything about the jewel.
18. P.Ws.7 and 9 have stated that A-1 and A-2 have told P.W.11, the Investigation Officer that they have stolen these jewels from the house of P.W.1. This evidence has also been recorded by the trial Court. It is totally inadmissible.
19.In this connection, it is profitable to note the following observations of this Court in Vijayakumar @ Kutty (supra):
53. The last circumstance relied on by the prosecution is Section 27 Evidence Act recovery, namely, M.O.1 bill-hook.
54. Under Section 27 of the Evidences Act, so much of information leading to the recovery of a material fact alone is admissible. Non-culpatory portion in the confession of an accused alone is admissible.
55. The scope and ambit of Section 27 were stated long ago by the Judicial Committee of the Privy Council in Pulukuri Kotayya v. King Emperor AIR 1947 PC 67 . It runs as under:
It is fallacious to treat the fact discovered within the Section as equivalent to the object produced, 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 knowledge of the accused as to this, and the informations 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 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. 56. Recently, in Mustkeem alias Sirajupden v. State of Rajasthan AIR 2011 SC 2769 : (2011) 3 SCC (Cri) 473 : LNIND 2011 SC 650 : (2012) 1 MLJ (Crl) 151 , with reference to Section 27 of the Indian Supreme Today With All High Courts Page 9 of 11 Evidence Act, Honble Apex Court observed as under:
25. With regard to Section 27 of the Act, what is important is discovery of the materials object at the disclosure of the accused but such disclosure alone would not automatically lead to the, conclusion!, that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the materials object and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution.
57. It is not all the statements connected with the production or finding of property, which are admissible; only those which lead immediately to the discovery of property, and so far as they do lead to such discovery alone are admissible. What is admissible under Section 27 of the Evidence Act is exculpatory/non-culpatory/non-incriminating part in the confessional statement of the accused. Inculpatory/incriminating part of the confessional statement is totally inadmissible under Section 27 of the Evidence Act.
58. From Exhibit P-4 confessional statement of the accused, the learned Principal Sessions Judge, Tuticorin, recorded that It means, if he is taken, from the concealed place, he will produce the bill-hook, which was used to kill Madasamy. Evidence recorded by the learned Principal Sessions Judge from the recovery witness P.W.10 Velusamy, V.A.O is also on similar line.
59. The Trial Court had admitted in evidence the culpatory part of the confessional statement of the accused also. It is the duty of the Court to dissect the evidence regarding the confession and to; divide the sentence into its component parts and only admit that part, which led to the discovery of the particular fact, viz., the hidden property.''
20. In Chinna Pillai & another (supra), similar view has been taken by this Court.
21. The principles laid down in the said cases squarely applicable to the facts of this case.
22. The recovery evidence introduced by the prosecution through P.Ws.7, 9 and 11 is unbelievable. Section 27, Evidence Act recovery is effected by the Investigation officer/P.W.11. Such kind of evidence deserves close scrutiny. The Court must be satisfied that the recovery witnesses are not obliging the police. The Court must also be satisfied that those recovery witnesses are not hand-picked witnesses of the police. Truth and genuineness of the recovery must be established by the prosecution.
23. In this case, both the trial Court as well as the Appellate Court have failed to note this important aspect of law and they have not appreciated the said evidence in proper perspective. In the circumstances, the finding of guilty recorded by both the Courts based on such evidence suffers from legality and propriety.
24. In the circumstances, ordered as under:
(1) This Criminal revision is allowed.
(2) The conviction recorded and sentence awarded by the trial Court as well as the Appellate Court are set aside.
(3) The revision petitioners/A-1 and A-2 are acquitted under Section 457 and 380 I.P.C.
(4) The fine amount paid shall be refunded to them.
10.11.2016 Index : Yes Internet : Yes vaan To 1 The Principal Sessions Judge, Cuddalore 2 The Additional Sessions Judge (Fast Tract Court No.II), Cuddalore 3 The Judicial Magistrate No.III, Cuddalore 4 The Public Prosecutor, High Court, Madras 5 The Superintendent, Central Prison, Cuddalore 6 The Inspector of Police, Vadalur Police station.
DR.P.DEVADASS, J., vaan Crl.R.C.No.16 of 2011 10.11.2016 http://www.judis.nic.in