Madras High Court
G.Manikandan @ Mani vs / on 13 October, 2022
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.R.C.No.546 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on :11.10.2022
Pronounced on :13.10.2022
Coram:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
Crl.R.C.No.546 of 2017
G.Manikandan @ Mani .. Petitioner
/versus/
State by
The Inspector of Police,
Vaitheeswarn Koil Police Station,
Sirkali,
Crime No.261 of 2005. .. Respondent
Prayer: Criminal Revision Case has been filed under Section 397 r/w
401 of Code of Criminal Procedure to set aside the judgment passed by the
Hon'ble District Sessions Court, Nagapattinam in C.A.No.88 of 2011, dated
15.03.2017 thereby set aside the conviction imposed on the petitioner by an
order passed by the learned Judicial Magistrate, Sirkali dated 16.12.2011 in
C.C.No.94 of 2006.
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https://www.mhc.tn.gov.in/judis
Crl.R.C.No.546 of 2017
For Petitioner :Mr.Duraikannan
Legal Aid Counsel
For Respondent :Mr.N.S.Suganthan
Government Advocate (Crl.Side)
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ORDER
The Criminal Revision Petition is preferred by the third accused in the case tried for the offence under Section 394 IPC, wherein, the trial Court found him guilty and sentenced him to undergo 3 years Simple Imprisonment with fine of Rs.5000/- in default, to undergo 3 months Simple Imprisonment. The appeal in C.A.No.88 of 2011 dated 15.03.2017 preferred by him was dismissed confirming the judgment of conviction and sentence imposed by the trial Court in C.C.No.94 of 2006 dated 16.12.2011.
2. The brief facts of the prosecution case as narrated by its witnesses:
PW-1 and PW-2 are husband and wife. They are resident of Perunthottam Village near Sirkali. On 22/11/2005 at about 5.30 p.m, for medical check up, PW-1 and PW-2 left to Sirkali from their home in a two Page No.2/20 https://www.mhc.tn.gov.in/judis Crl.R.C.No.546 of 2017 wheeler Bajaj CT 100 bearing Registration No:TN 49 T 6553, since PW-2 was pregnant. After consultation, while they were returning home through Poombukar Road, at about 08.45 p.m, near Manalmedu Village, PW-1 saw three persons in a motor cycle following him menacingly. Suspecting danger, PW-1 raised the speed of his vehicle, however, the trio overtook him and restrained him from proceeding. Both PW-1 and PW-2 fell down and got hurt. When PW-1 and PW-2 raised alarm and screamed, one of them took a knife and threatened not to shout and snatched the chain from PW-2.
When PW-2 resisted, the chain got cut, her chain remained with PW-2, the trio removed 3 grams gold thali, 2 gold coins stringed to the chain and fled away on seeing the public rushing towards them.
3. The incident was reported to Sirkali Police and PW-1and PW-2, got admitted in the Government Hospital at Sirkali as in-patient for treatment to the injuries sustained. On receiving intimation, PW-15, the Sub-Inspector of Police attached to Vaitheeswaran Koil Police Station, came to the hospital and recorded the complaint (Ex.P-1) from PW-1 and Page No.3/20 https://www.mhc.tn.gov.in/judis Crl.R.C.No.546 of 2017 registered First Information Report (Ex.P-14), in Crime No.261/2005 for the offence under Section 394 IPC against three unknown persons. The investigation was taken up by PW-16, the Inspector of Police. PW-3- Doctor, who treated PW-1 and PW-2 certified stating that the injuries found on PW-1 and PW-2 are simple in nature. The Accident Registers of them were marked as Ex.P-2 and Ex.P-3.
4. In the course of investigation, the Investigating Officer has visited the spot, prepared sketch, observation mahazar and recorded statements of witnesses. A-1[Kothandaraman] was arrested on 24/11/2005 at 6.00 pm. He confessed the guilt and his statement was recorded in the presence of PW-10 and PW-14. The Hero Honda motorcycle bearing registration No:TN 22 E 6784 used for the crime by the trio and part of the stolen properties, (ie) the gold thali gundu with two copper tubes ( M.O 1 and M.O. 2) were recovered from A-1 based on his confession. However, the witnesses PW-10 and PW-14 turned hostile except admitting their signatures found in the recovery mahazar based on the A-1 confession.
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5. On 28/11/2005, at about 03.00 pm, A-3 (the revision petitioner herein) was arrested and his statement was recorded. Based on his confession, 2 gram thali ( M.O.3) and 2 gold coins- ½ gram ( M.O.4 ) were recovered. The witnesses to the recovery mahazar turned hostile and corroborated the version of PW-16.
6. Nearly after two months, Identification Parade in the prison was conducted by the Judicial Magistrate. PW-1 was not able to identify the accused persons. PW-2 identified A-1 and A-3. The Identification Parade proceedings recorded by the Judicial Magistrate marked through the Investigating Officer as Ex.P18.
7. Based on the testimony of PW-1 to PW-16, though PW-4 to PW-7, PW-10 and PW-14 turned hostile, relying upon the evidence of other witnesses namely PW-8, PW-9, PW-11, PW-12 and PW-13 who are the villagers corroborated the version of PW-1 and PW-2 about the incident, the Page No.5/20 https://www.mhc.tn.gov.in/judis Crl.R.C.No.546 of 2017 trial Court had held A-1 and A-3 guilty and acquitted A-2 for want of proof beyond doubt.
8. The appeal preferred by this petitioner was dismissed. Hence, the revision petition has been filed on the ground that the prosecution witnesses PW-10 and PW-14 did not support the case of the prosecution regarding the recovery of M.O.3 and M.O 4 from A-3, based on his confession. Further PW-2 has deposed that M.O. 2 series was recovered from A-1 at the police station. A-1 spit gold thali and gundu from his mouth, when he was hit by the police. The contradictions between the prosecution version regarding the registration of First Information Report, recovery and indentification of the accused renders the prosecution case as unreliable, hence the judgments of the Courts below is perverse.
9. The learned counsel for the petitioner also referring the Full Bench Judgment of the Allahabad High Court reported in MANU/UP/0084/1964 (Sheo Raj –vs- State) submitted that in this case, the Page No.6/20 https://www.mhc.tn.gov.in/judis Crl.R.C.No.546 of 2017 Judicial Magistrate who conducted the Identification Parade, was not examined, therefore the identification parade proceedings marked as Ex.P-
18 is inadmissible. Except PW-2, none of the prosecution witnesses have identified the accused. Even PW-2 has not clearly identified the petitioner/ 3rd accused and not deposed about his overt act specifically. In the said circumstances, the petitioner is entitled for the benefit of doubt.
10. Per contra, the Learned Government Advocate(Crl.Side) for the State submitted that, it is a case of chain snatching and the victim, who had a close fight with the offenders was able to identify A-1 and A-3 during the Identification Parade as well as in the Court, since she was not able to identify A-2, the trial Court has extended the benefit of doubt and acquitted him. Examination of the Judicial Magistrate, who conducted the ID parade is no necessary in all cases. When the witness has identified the accused in tune with the outcome of the Identification Parade, the Judicial Officer, who conducted the parade, need not be examined. PW-8, PW-9, PW-11 to PW-13 are the villagers, who rushed to the spot on hearing the commotion, Page No.7/20 https://www.mhc.tn.gov.in/judis Crl.R.C.No.546 of 2017 had deposed that when they reached the spot, PW-1 and PW-2 were on the road and they said that the trio who fled, snatched the chain and pulled them down. PW-3, Doctor and the Accident Registers (Ex.P-2 and Ex.P-3) prove the fact that PW-1 and PW-2 sustained injuries, when the accused tried to snatch the chain. PW-3 has identified the persons who snatched the chain.
M.O.3 and M.O.4 which belongs to PW-2 was later recovered from A-3.
Thus, the prosecution has proved the fact that the chain was snatched by causing hurt, satisfying the necessary ingredients to punish under Section 394 of IPC.
11. Heard the learned counsel representing the petitioner and the learned Government Advocate (Crl.Side)for the State. Records perused.
12. The petitioner along with two other accused persons was tried for the offence under Section 394 IPC. The incident has happened on 22/11/2005 at about 8.30 p.m on a public road near residential area. The sketch marked as Ex.P-15 indicates the presence of street lights near the Page No.8/20 https://www.mhc.tn.gov.in/judis Crl.R.C.No.546 of 2017 spot. PW-8, PW-9, PW-11 to PW-13 are the residents nearby and they have deposed that they all rushed to the spot on hearing scream and commotion.
They saw PW-1 and PW-2 wounded and heard saying they were robbed of the chain by the trio, who fled on seeing the villagers. They informed the police and arranged for admitting the injured persons in the hospital. This part of testimony is relevant and admissible in evidence being facts forming part of the same transaction. The confession of the petitioner herein/ 3rd accused has led to recovery of M.O.3 and M.O.4. Therefore, the portion of the confession leading to discovery of the fact is admissible in evidence under Section 27 of the Indian Evidence Act, 1872. In view of the fact that PW-16, the Investigating Officer's evidence is sufficient, since it is corroborated with the evidence of PW-2, who has identified the Material Objects as the articles snatched from her, the plea that PW-10 and PW-14 not corroborated the prosecution version of recovery does not carry much significance.
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13. The other point for consideration is whether the prosecution has proved the identity of the petitioner as the real offender.
14. The learned counsel appearing for the Petitioner relying upon the Full Bench Judgment of Allahabad High Court (cited supra) contended that the failure of the prosecution to examine the Judicial Magistrate, who recorded the Identification Parade proceedings is fatal to the prosecution.
15. The judgment cited supra is by Full Bench in connection with an order of reference: -
“whether the memorandum of identification proceedings held by a Magistrate acting under Section 164 of CrPC is admissible without proof” Answering in negative, the Full Bench has observed that, “3. Generally while the police investigate art offence committed by unknown persons and arrest persons suspected of having committed it they get identification proceedings held so that the eye-witnesses are confronted with them. Only the eye- witnesses can say whether they committed the offence or not and in order to make their statements acceptable as true the suspects are mixed up with other persons and the eye-witnesses are asked whether they can point out any of the offenders among them. These proceedings are known as identification proceedings and Page No.10/20 https://www.mhc.tn.gov.in/judis Crl.R.C.No.546 of 2017 the police get them conducted before a Magistrate so that whatever statements are made by the eye-witnesses and are recorded by the Magistrate can be placed before the Court when the suspects are placed on trial. Generally identification proceedings are held while the police are still investigating the offence: i.e. before they send a report under Section 173, Cr. P. C. to a Magistrate on the basis of which he can under Section 190 of the Code take cognizance of the offence. A statement made by a person to a police officer in the course of an investigation cannot be used for any purpose at any enquiry or trial in respect of the offence under investigation (except for contradicting him), vide Section 162; it is open to any person to make a statement or confession before a Magistrate (of a certain class) in the course of an investigation, or at any time thereafter, but before the commencement of an enquiry or trial and the statement or confession will be recorded by the Magistrate under Section 164 and is not subject to the bar imposed by Section 162. Such a statement, being a previous statement, may be used only to contradict the person when he appears as a witness at the enquiry or trial of the offence or to corroborate him.
A statement made by a person before a Magistrate of the required class holding an identification proceeding and recorded by him is a statement governed by Section 164: there is no dispute on this point. It is to be noted that Section 164 simply mentions "any statement or confession made to him in the course of an investigation" and not "any statement or confession made to him in the course of art investigation by any witness or accused person". It does not state whose statement or confession is to be recorded by him. Actually at this stage, when the offence is still under investigation, there are no witnesses and no accused persons (except in the sense of persons against whom a charge of having committed the offence is levelled and is under investigation), it is only after the investigation has been completed that the police can decide who is to be the accused of the offence before a Magistrate and who are to be the witnesses in the case. Till then there can be no decision about the status of a person as an accused person or as a witness and all persons examined by the police during the investigation are mere Page No.11/20 https://www.mhc.tn.gov.in/judis Crl.R.C.No.546 of 2017 interrogatories or informants or statement-makers.
The provisions in the Code relating to investigation do not refer to any person as a witness. Though "witness" is not defined in the Evidence Act, Sections 118, 119 and 120 of it make it clear that a witness is a person, who testifies before a Court. Under Section 59 all facts may be proved by oral evidence and "oral evidence" is defined in Section 3 to mean and include all statements made by witnesses before a Court. The definition of "proved" shows that the question of proof of a fact arises only before a Court, so long as there is no Court there is no question of a fact being proved and consequently no question of oral evidence and witnesses.
Evidence can be given only in respect of the existence or non- existence of a fact in issue or a relevant fact, vide Section 5. Which is a fact in issue or a relevant fact is a matter that arises only before a Court because only before a Court there can arise the question whether a certain fact is proved or not. These provisions of the Evidence Act make it clear that no person can claim the status of a witness except in relation to a proceeding before a Court. It follows that while an offence is still under investigation there is nobody who can be called "witness" and there is no statement that can be called "evidence",
4. At the moment when a Magistrate records a statement under Section 164, Cr. P. C. there is no matter of fact under enquiry before him; the offence is still under investigation and the Magistrate may not be even a Magistrate entitled to take cognizance, of the offence. Since there is no matter of fact under enquiry before him, there is no question of his permitting or requiring a statement to be made before him by a witness and, therefore, there is no possibility of the statement made to him being "evidence", see the definition of "oral evidence" in Section
3. He may be a Court as defined in Section 3, but what he records is not "evidence". Every statement that is made to a Magistrate is not "oral evidence" and does not became a record of evidence when reduced to writing. Since he has not to give any finding he does not record a statement to enable, him to arrive at any finding. Such a statement can be used, if at all, only when somebody is put on trial before a Court for committing the offence investigated by Page No.12/20 https://www.mhc.tn.gov.in/judis Crl.R.C.No.546 of 2017 the police and the maker of the statement is examined as a witness, and that too only for contradicting him under Section 145 or corroborating him under Section 157 of the Evidence Act. There can be no controversy on this point; still Nazir Ahmad v. King Emperor MANU/PR/0020/1936, Brij Bhushan v. Emperor MANU/PR/0041/1945 and Bhuboni Sahu v. The King MANU/PR/0014/1949, may be cited in support.
Even when it is used at the trial it does not become "evidence" because it is not used to prove of disprove any fact in issue or relevant fact. That the witness had made a previous statement either corroborating or contradicting the evidence given by him in Court is neither a fact in issue nor even a relevant fact. The only possible section under which it can be said to be a relevant fact is Section 11, but the fact that he made a previous statement, even if conflicting with the evidence given in Court, cannot be said to be inconsistent with any fact in issue or relevant fact and the fact of making a previous statement whether conflicting or corroborating the evidence given in Court cannot be said to make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable. I may refer to what I said in the State v. Jagdeo 1955 All L J 380, regarding Section 11 not being applicable to the making of a statement. When it is used at the trial far either of the purposes mentioned above it does not become evidence at the trial and much more less is it evidence at the time when it is made and is recorded by a Magistrate.
The investigation may end in, what is called a final report, which may be accepted by the Court, and nobody may be placed on trial at all, in which case the statement becomes completely useless as if it did not exist, without any act being done by the maker or the Magistrate. This itself shows that it is not evidence at the stage when it is made; evidence cannot become as good as non-existent without any act by the person creating it. The status of a statement recorded under Section 164 is no better than, or different from, that of a mortgage or sale deed. Even though the mortgage or sale deed is the only means of proving the mortgage or sale it is not evidence at the moment it is executed. Merely because it may be used as evidence later when a Court has to inquire into whether Page No.13/20 https://www.mhc.tn.gov.in/judis Crl.R.C.No.546 of 2017 there was a mortgage or sale or not, at the time of its execution it is not evidence and cannot be said to be a memorandum of evidence. Exactly in the same way a record of a statement made under Section 164 is not a record of evidence merely because it might be used for a certain purpose in a trial before a Court. A memorandum of evidence within the meaning of Section 80 is a memorandum of a statement made as evidence, i.e. a deposition before a Court for the purpose of proving or disproving a fact in issue or a relevant fact.
10. Thus I find that the statement made by a person under Section 164 cannot be said to be made in a judicial proceeding. Section 80, Evidence Act, is, therefore, not applicable to it. Since a memorandum of identification proceedings prepared by a Magistrate is no letter than a statement recorded by him under Section 164 Cr. P. C. it cannot be presumed to be genuine under Section 80. In Queen Empress v. Sundar Singh ILR 12 All 595 and Guja Majhi v. Emperor AIR 1917 Pat 247 a confession recorded under Section 164 by a Magistrate was presumed to be genuine under Section 80. Section 80, which is applicant to a confession recorded by a Magistrate under Section 164 of the Code cannot be held applicable to a statement not made by an accused person simply because it is also recorded by a Magistrate under Section 164. Section 80 applies to a confession because it is expressly mentioned in it. it cannot apply to a statement of a person other than an accused person recorded under Section 164 because neither is it expressly mentioned in Section 80 nor is it covered, as explained above, by the words "a record or memorandum..............to take such evidence".
In Nazir Ahmad's case MANU/PR/0020/1936 at page 257 their Lordships of the Judicial Committee denied that "the only effect of Section 164 is to allow evidence to be put in a form in which it can prove itself under Sections 74 and 80, Evidence Act" and pointed out that the scope and extent of it is far other than that Varma and Rowland, JJ., applied Section 80 to statements of persons other than accused persons recorded under Section 164 in Emperor v. Lalji Rai MANU/BH/0110/1935. The reason given by them is that "the statements were recorded during an investigation Page No.14/20 https://www.mhc.tn.gov.in/judis Crl.R.C.No.546 of 2017 in which oath could be administered to the witnesses by an officer authorized by law for the purpose" (P. 13); it is difficult to accept this reason. Coldstream J. did the same in Sadulla v. Emperor, AIR 1938 Lah 477; he gave absolutely no reason, did not discuss the provisions of Sections 80, Evidence Act, and 164, Cr P. C., and just said that a record of such a statement is presumed to be genuine. No assistance can be had from this decision. Bennet J. said in Suraj Bali v. Emperor MANU/UP/0136/1933 :
AIR1934All340 :
"The Magistrate who recorded the dying declaration was legally authorised to do so, and the inquiry which he was making was an inquiry directed for the purpose of recording that particular statement. Consequently.... ..............the dying deposition does amount to evidence within the meaning of Section 80".
As regard the applicability of Section 80, a statement recorded under Section 164 stands on the same footing as a dying declaration. If the offence is under investigation, the dying declaration would be recorded by a Magistrate under Section 164. So if Section 80 applies to a dying declaration it must also apply to any other statement recorded under Section 164, but I am not at all persuaded to accept that it does apply to a dying declaration. The Magistrate who recorded the dying declaration and did nothing else; certainly did not make any inquiry and much less did he record it for an inquiry. James and Takru, JJ., observed in MANU/UP/0043/1961 : AIR1961All153 that if a first class Magistrate prepares memorandum of identification proceedings, it is admissible in evidence under Section 80 without proof; the learned Judges did not discuss the relevant provisions or authorities. With great respect I think that their dictum cannot bear scrutiny. The correct law was laid down in the case of Ram Sanehi MANU/UP/0087/1963 : AIR1963All308 and Chandrapal, Govt. Appeal No. 1931 of 1961, D/- 18-8-1962 (All) in which the learned Judges rightly observed that a record of an identification proceeding is not a record of evidence of a witness. I also respectfully agree with the statement of Lindsay and Sulaiman, JJ., in Nagina v. Emperor MANU/UP/0400/1921at p. 216 that "these statements are of course not made on oath, and again, they Page No.15/20 https://www.mhc.tn.gov.in/judis Crl.R.C.No.546 of 2017 are made in the course of extra-judicial proceedings".
The cases of Alagu Kone ILR 16 Mad 421, Suppa Thevan 3 Cri LJ 370 (Mad), Nagalinga MANU/AP/0150/1959 :
AIR1959AP250 , Vishwanath Krishna, 8 Bom LR 589, Emperor v. Parma Nand 34 Cri LJ 469 ;AIR 1933 Lah 321 and Queen Empress v. Khem ILR 22 All 115 are authorities for the proposition that a person is guilty of perjury if he makes a false statement under Section 164. We are not concerned in the instant case with whether making a false statement is punishable under Section 193, I. P. C., or not, but I must confess that the reasons given in these authorities are inconsistent with the view that I have taken above. If those cases cannot be distinguished and must be either followed or dissented from, I respectfully dissent from them.
11. ............
A memorandum of evidence can be proved not only by the Magistrate recording it but also by the person giving the evidence and if the person giving the evidence proves it the necessity of examining the Magistrate or of relying upon the presumption of Section 80 is obviated. Further the deposition made by a witness at the trial does not gain materially from the corroboration consisting of the mere previous statement made before the Magistrate conducting the identification proceedings; it would gain if it was also proved that the witness pointed out the accused person when he was mixed with others and without his description being given to him by some one who had seen him earlier. Of course these facts could be proved by the witness himself, but usually this is not done and the prosecution itself undertakes to prove them from the mouth of the Magistrate conducting the identification proceedings. If it has not got them proved by the witness it must examine the Magistrate to prove them if it wants to add to the weight of the deposition of the witness. I am not considering the provisions of Section 35, Evidence Act, which has not been relied upon before us at all and what I have said above is subject to Section 35 being not applicable to the proof of the other facts stated in the memorandum of identification proceedings.” (Emphasis Added) Page No.16/20 https://www.mhc.tn.gov.in/judis Crl.R.C.No.546 of 2017
16. This Court, on perusal of the judgment cited supra, finds that the proposition canvassed by the petitioner's counsel is not correct and in fact the Full Bench of the Allahabad High Court has clarified the legal position stating that, the statement recorded by the Judicial Magistrate during the identification proceedings is not at all an evidence in strict sense.
The content has to be spoken by the maker of the statement or the person, who recorded it (Judicial Magistrate), on oath before the Court. If the maker is examined and corroborates the facts found in the proceedings, the Judicial Magistrate, who recorded the statement, that obviate the necessity of examing the Judicial Magistrate.
17. Precisely, in the case in hand, PW-2 has deposed before the Court and identified the accused 1 and 3 as the assailants and persons, who snatched her chain and robbed the gold thali, coins etc.( M.O.2 to M.O.4).
Therefore, omission to examine the Judicial Magistrate, who recorded the proceedings as a witness to speak about the identification proceedings, Page No.17/20 https://www.mhc.tn.gov.in/judis Crl.R.C.No.546 of 2017 which is not a fact in issue or relevant fact, is not fatal to the case of the prosecution.
18. Therefore, this Court finds no error or perversity in the manner in which the evidence appreciated by the Courts below and the reasoning for convicting the accused/petitioner.
19. As a result, this Criminal Revision Case is dismissed. The judgments of the Courts below is hereby confirmed. Bail Bond executed by the petitioner shall stand cancelled. The respondent police is directed to secure the accused and send him to prison for the remaining period of sentence imposed by the trial Court. The period of sentence already undergone by the petitioner shall be set off under Section 428 of Cr.P.C.
13.10.2022 Index:yes/no speaking order/non speaking order ari Page No.18/20 https://www.mhc.tn.gov.in/judis Crl.R.C.No.546 of 2017 To :
1.The District Sessions Court, Nagapattinam.
2.The Judicial Magistrate Court, Sirkali.
3.The Inspector of Police, Vaitheeswaran Koil Police Station, Sirkali.
4.The Public Prosecutor, High Court, Madras.Page No.19/20
https://www.mhc.tn.gov.in/judis Crl.R.C.No.546 of 2017 DR.G.JAYACHANDRAN,J.
ari Delivery Order made in Crl.R.C.No.546 of 2017 13.10.2022 Page No.20/20 https://www.mhc.tn.gov.in/judis