Kerala High Court
Sarmakani vs State Of Kerala on 27 May, 2020
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 27TH DAY OF MAY 2020 / 6TH JYAISHTA, 1942
CRL.A.No.2027 OF 2004(B)
AGAINST THE JUDGMENT IN SC 17/2003 DATED 18-11-2004 OF SPECIAL C
IDAMALAYAR INVN & 5 ADDITIONAL DISTRICT COURT .EKM
APPELLANT/S:
1 SARMAKANI,S/O. MARIYAPPAN,
DOOR NO.47, CHEMBAKAT ROAD, KANIYAN COLONY,,
SIVAKASI, KAMARAJ DISTRICT.
2 YESUDAS SO.DHANARAJ DOOR.NO.45
K.K.NAGAR, THIRUTHUNKAL P.O. SIVAKASI.
3 SAMBATH SO.PURUSHOTHAMA
DOOR NO.48, XIIA, K.K.NAGAR ROAD,, PURANIMEDU,
SIVAKASI.
4 AROGYADAS SOA.ROGYASWAMI DOOR NO.3
K.K.NAGAR, THIRUTHANGAL, SIVAKASI VILLAGE,, KAMARAJ
DISTRICT.
5 GOPI SO.KANNAMMA MUTHUVILPURAM
KAMARAJ COLONY, TAMIL NADU.
BY ADV. SRI.T.M.RAMAN KARTHA
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY STATE PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM.
2 DETECTIVE INSPECTOR C.B.C.I.D.C.F.S
ERNAKULAM, CRIME NO. Q3/1990 OF HILLS PALACE, POLICE
STATION.[DELETED]
3 THOMAS SO.AUGUSTINE VARIKODU VEEDU
KARIMANNOOR VILLAGE, THODUPUZHA, IDUKKI. [DELETED]
4 JOHNSON JOHNI SO.AUGUSTINE
VARIKODU VEEDU, KARIMANNOOR VILLAGE,, THODUPUZHA
IDUKKI. [DELETED]
5 BENNI SO.JOSEPH KUZHIPPILLIL VEEDU
CRL.A.Nos.2027, 2079 & 2080 OF 2004 2
THANKAMANI KAR, KARIMANNOR VILLAGE. [DELETED]
6 SURESH SO.KUNJUMON CHEMBIL VEEDU
ALLAPRA KARA, VENGOLA VILLAGE. [DELETED]
7 HARI ARTIST HARI SO.KUNJAN
NIVARTHIL VEEDU, THURAVOOR KARA,, THURAVOOR
VILLAGE. [DELETED]
8 SUKUMARAN NAIR SO.GOPALA PILLAI
ESSAR INDUSTRIES, KUNNATHOOR KARA AND VILLAGE.
[DELETED]
9 SOMAN PILLA SO.RAMAKRISHNA PILLA
KALIYIKKAL VEEDU, KOLLAMPILLY MURI KARA,, OCHIRA
PANCHAYATH AND VILLAGE.[DELETED]
*[RESPONDENTS 2 TO 9 DELETED VIDE ORDER DATED
18/08/2011 IN CRL.MA.6014/11 IN CRL.A 2027/2004.]
SR.PP. SANTHOSH PETER
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-05-
2020, ALONG WITH CRL.A.2079/2004, CRL.A.2080/2004(A), THE COURT
ON 27-05-2020 DELIVERED THE FOLLOWING:
CRL.A.Nos.2027, 2079 & 2080 OF 2004 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 27TH DAY OF MAY 2020 / 6TH JYAISHTA, 1942
CRL.A.No.2079 OF 2004
AGAINST THE JUDGMENT IN SC 17/2003 DATED 18-11-2004 OF SPECIAL C
IDAMALAYAR INVN & 5 ADDITIONAL DISTRICT COURT .EKM
APPELLANT/S:
JOHNSON JOHNY,S/O. AUGUSTIN,
VARIKODU VEEDU, KARIMANNOOR VILLAGE,, THODUPUZHA,
IDUKKI.
BY ADVS.
SRI.J.JOSE
SRI.SHAJI THOMAS PORKKATTIL
RESPONDENT/S:
STATE, REPRESENTED BY THE DETECTIVE INSPECTOR,
C.B.C.I.D. C.F.S.,, ERNAKULAM, THROUGH PUBLIC
PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.
SR.PP. SANTHOSH PETER
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-05-
2020, ALONG WITH CRL.A.2027/2004(B), CRL.A.2080/2004(A), THE
COURT ON 27-05-2020 DELIVERED THE FOLLOWING:
CRL.A.Nos.2027, 2079 & 2080 OF 2004 4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 27TH DAY OF MAY 2020 / 6TH JYAISHTA, 1942
CRL.A.No.2080 OF 2004
AGAINST THE JUDGMENT IN SC 17/2003 DATED 18-11-2004 OF SPECIAL C
IDAMALAYAR INVN & 5 ADDITIONAL DISTRICT COURT .EKM
APPELLANT/S:
THOMAS, S/O. AUGUSTIN,
VARIKODU VEEDU, KARIMANNOOR VILLAGE, THODUPUZHA
IDUKKI.
BY ADVS.
SRI.J.JOSE
SRI.SHAJI THOMAS PORKKATTIL
RESPONDENT/S:
STATE,REPRESENTED BY THE DETCTIVE INSPTR
C.B.CID, C.F.S. ERNAKULAM, THROUGH THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
SR.PP. SANTHOSH PETER
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-05-
2020, ALONG WITH CRL.A.2027/2004(B), CRL.A.2079/2004, THE COURT
ON 27-05-2020 DELIVERED THE FOLLOWING:
CRL.A.Nos.2027, 2079 & 2080 OF 2004 5
JUDGMENT
[ CRL.A.2027/2004, CRL.A.2079/2004, CRL.A.2080/2004 ] Dated this the 27th day of May 2020 CR "Something is rotten in the state of Denmark". After going through the entire records and the impugned judgment in this case, that is my feeling. The incident in this case happened about 30 years back. PW19, the Circle Inspector of Police, Hill Palace Police Station, receives reliable information on 21.03.1990, regarding counterfeiting and possession of Indian Currency Notes in a building bearing No.XXX/750, situated within his jurisdiction. He proceeded to the place along with two witnesses, an accused in murder case and a tea seller in the Police Station. He searched and seized several counterfeit notes, machinery for printing counterfeit notes etc. from the building No. XXX/750. According to him, accused Nos.1 to 8 were present and found engaged in counterfeiting CRL.A.Nos.2027, 2079 & 2080 OF 2004 6 currency notes. The investigation was conducted in this case and a final report was filed after 10 years, i.e., on 25/08/2000. When trial started in the court, all the witnesses turned hostile except PW19 and PW20 Police Officers. They deposed that the accused Nos.1 to 8 were present at the place from where the seizure is made as per Ext.P1 search list. But, PW21, the investigating officer deposed before the court that, the accused Nos.1 to 8 were not present there and the prosecution declared him hostile. PW21 is the Detective Inspector, Crime Branch, Counterfeiting Squad. When he gave evidence in this case, he retired from service. After the retirement, he deposed before the court against the prosecution case and hence he was even declared hostile by the prosecution. The facts of the case in detail are narrated below.
2. The appellants in Crl.Appeal No.2027/2004 are the accused Nos.1 to 5 in CRL.A.Nos.2027, 2079 & 2080 OF 2004 7 Session Case No.17/2003 on the files of the 5th Additional Sessions Judge, Ernakulam. The appellants in Crl.Appeal Nos.2080/2004 and 2079/2004 are the accused Nos.6 and 7 in the above case. The above case is chargesheeted by the Detective Inspector, CBCID, Counterfeiting Squad, Ernakulam, against 13 accused including the appellants in these Crl. Appeals. Accused No.13 was absconding. Accused Nos.1 to 5 were also absconding originally and subsequently they appeared and the learned Sessions Judge proceeded against the accused Nos. 1 to 12 together. The offences alleged against the accused are under Sections 489A to 489D read with Section 120B IPC and also under Section 120B IPC(hereinafter the appellants are mentioned in accordance to their rank before the trial court).
3. To substantiate the case, prosecution examined PW1to PW25. Exhibits P1 to P50 are the exhibits marked by the prosecution. CRL.A.Nos.2027, 2079 & 2080 OF 2004 8 Ext.D1 is marked as an exhibit on the side of the defence. MO1 to MO49 are the material objects.
4. After going through the evidence and documents, the learned Sessions Judge found that accused Nos.1 to 7 are guilty under Sections 489A, 489C and 489D read with Section 120B IPC and also for offence punishable under Section 120B IPC. They are found not guilty of the offence punishable under Section 489B IPC. The accused No.8 was not found guilty and he was acquitted. Accused Nos.1 to 7 are sentenced to undergo rigorous imprisonment for three years each for the offence punishable under Sections 489A, 489C and 489D read with 120B IPC and also to undergo rigorous imprisonment for three years for the offence punishable under Section 120B IPC. All the accused are sentenced to pay a fine of Rs.50,000/- each for the offence punishable under Section 489A. In default of payment of fine, the accused are directed to undergo CRL.A.Nos.2027, 2079 & 2080 OF 2004 9 rigorous imprisonment for one year each. The court ordered that the substantive sentence will run concurrently. The set off was also ordered. Aggrieved by the conviction and sentence, these appeals are filed by accused Nos.1 to 7.
5. Heard the counsel for the appellants and the Public Prosecutor.
6. The counsel for the appellants submitted that, even if the entire prosecution case is accepted in toto, no offence under Sections 489A, 489C and 489D read with Section 120B IPC are made out in this case. The counsel submitted that, there is only the evidence of PW19 and PW20 police officials, they are the detecting officer and his subordinate. All the witnesses including the alleged independent witness to the seizure turned hostile. The learned Sessions Judge erred in convicting the appellants, based on the evidence of PW19 and PW20 to the effect that the appellants were present at the time CRL.A.Nos.2027, 2079 & 2080 OF 2004 10 of seizure of the materials from the place, where the search is conducted. According to the counsel, PW21 the investigating officer in this case deposed before the court that, when he went there, he did not see accused Nos.1 to 8 in the place from where the seizure was effected. So according to the counsel, there is contradictory version regarding the presence of accused at the place from where the seizure is conducted. On one side, PW19 and PW20 who are the detecting officer and the Police Constable to the effect that, accused Nos.1 to 8 were present at the place from where the alleged seizure is effected. On the other hand, PW21, the detecting officer, CBCID, Counterfeit Squad deposed that, when he reached the place from where the seizure was effected, he did not see the presence of the accused at the place of seizure. The counsel for the appellants submitted that, in the light of the contradictory version regarding the presence of the accused at the place of CRL.A.Nos.2027, 2079 & 2080 OF 2004 11 seizure from the official witness itself, the same is not believable. Except this, there is absolutely no evidence to connect accused Nos.1 to 8 in this case.
7. The Public Prosecutor seriously opposed the submissions of the counsel for the appellants. The Public Prosecutor submitted that, it is true that, many of the witnesses in this case turned hostile to the prosecution and they were not able to identify the accused and there is no evidence to connect the accused based on their evidence. But he submitted that, there is a definite case to PW19 and PW20, who are the detecting officer and the accompanying officer. According to the prosecution, the evidence of PW21 is to be rejected because he is a hostile witness. According to the prosecutor, in the light of the evidence of PW19, PW20 and Ext.P1 search list, it is proved by the prosecution that, accused Nos.1 to 7 were present at the place of seizure and from the evidence adduced by CRL.A.Nos.2027, 2079 & 2080 OF 2004 12 these witnesses it is clear that huge quantity of counterfeit notes, machinery for printing counterfeit notes, etc. are seized in the presence of the accused. When there was no explanation for accused Nos.1 to 7 for their presence in the place from where huge quantity of counterfeit notes and the machinery for printing those counterfeit notes are seized, it can be safely concluded that accused Nos.1 to 7 committed the offences alleged. According to the Public Prosecutor, there is nothing to interfere with the conviction and sentence passed by the trial court.
8. I perused the entire evidence adduced in this case along with the exhibits and material objects produced by the prosecution. I will narrate the evidence produced by the prosecution in this case.
9. Ext.P1 is the search list prepared by PW19 for having conducted the search of the house bearing No.CC XXX/750 on 21.03.1990. PW2 and PW3 are the witnesses to Ext.P1. Both CRL.A.Nos.2027, 2079 & 2080 OF 2004 13 of them deposed that they did not see the police searching the house as mentioned in Ext.P1. PW2 has stated that when he had gone to the Police Station for supplying tea as usual, he was asked to sign the paper and accordingly he signed on Ext.P1. He admitted that he signed a paper which was already written up. He also identified his signature in Ext.P1. PW3 is an accused in a murder case. He was originally convicted by the trial court under Section 302 IPC and subsequently his sentence was reduced to five years by this court after altering the charge. PW19 is getting reliable information about the counterfeit notes and at that time it is surprising to see that, PW19 is going to search the place along with PW2 and PW3. PW2 is a tea seller in the Police Station and PW3 is an accused in a murder case. Section 100(4) of the Cr.Pc says that, before making a search under this chapter, the officer or other person about to make it shall call upon CRL.A.Nos.2027, 2079 & 2080 OF 2004 14 two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do. PW19 is the Circle Inspector of Police. He is getting information regarding the possession of counterfeit notes and printing of counterfeit notes. In such circumstances, he is proceeded to the place of occurrence with PW2 and PW3. As I stated earlier, PW2 is a tea seller in the Police Station and PW3 is the accused in a murder case. From the conduct of PW19 in taking PW2 and PW3 for searching the premises in a such a serious case itself is doubtful. Section 100(4) Cr.Pc clearly says that, two or more independent and respectable inhabitants of the locality should be witnessed, if the search is conducted in a closed place. In CRL.A.Nos.2027, 2079 & 2080 OF 2004 15 this case, PW19 is getting sufficient time to get independent witnesses. PW19 is not searching the premises all on a sudden. It is not a chance recovery. In such circumstances, the conduct of PW19 is highly doubtful. The doubt is strengthened because PW2 and PW3 turned hostile to the prosecution at the time of trial. PW19 has no case that, there are no independent and respectable inhabitants of the locality in which place the search was conducted or no such inhabitants of the said locality is available or is willing to be a witness to the search. This will strengthen the doubt about the conduct of PW19.
10. In the case of this nature, the Police officers are expected to get two independent and respectable witnesses of the locality. The house searched by PW19 is stated to be about 4 kms. away from the Police Station. It is also pointed out that PW19 and PW20 started the search at 2.30 p.m on 21.03.1990. The evidence shows that, the house is situated in CRL.A.Nos.2027, 2079 & 2080 OF 2004 16 an area where so many respectable persons are staying. There is also evidence to show that after the police reached there and started searching, the people of that locality had reached near that house. All these aspects will create doubt about the conduct of PW19. The next piece of evidence adduced by the prosecution is PW4. PW4 is the Manager of Kapoor Sales Corporation. PW4 was examined to prove Exts.P8 and P9. Exts.P8 and P9 are seized as per Ext.P10 seizure mahazur. Exts.P8 and P9 are the carbon copies of the bill Nos.3204 and 3249 of Kapoor Sales Corporation. According to the prosecution, Exts.P8 and P9 bills are seized by the police based on the confession statement of accused No.4. But PW4 has stated that no accused was shown to him by the police. PW4 did not remember who had paid the amount covered by Exts.P8 and P9. Ext.P8 is the carbon copy of the bill dated 13.11.1989, which was issued in the name of Popular Offset Printers, CRL.A.Nos.2027, 2079 & 2080 OF 2004 17 Thiruvalla. That bill shows the description of the goods sold by him. Ext.P9 is also another bill. However, according to the prosecution, it was accused No.4, Arogyadas, who was shown to them. Accused No.4 was stated to have purchased the article mentioned in Exts.P8 and P9, but PW4 did not support that version. Since the article were purchased in November 1989 and since the search was conducted by PW19 on 21.03.1990, no attempt was made by the prosecution to connect the printing machinery and other articles found and seized as per Ext.P1 with the properties purchased as per Exts.P8 and P9. The seizure of those two bills will not in any way improve the case of the prosecution. It is also to be noted that, PW4 was examined before the court on 03.08.2004. That means, he was examined after about 15 years of the alleged incident. In this case, even though all the investigation was completed, the final report was filed only after about 10 years CRL.A.Nos.2027, 2079 & 2080 OF 2004 18 after the alleged seizure by PW19 based on Ext.P1 search list. There is no explanation for the delay in submitting the final report before the court after 10 years from the date of seizure. In such circumstances, PW4 who is a business man working in Sivakasi, Tamil Nadu may not be able to identify the accused. But here also the doubt is increased and the fingers are pointing towards the investigating officer. The investigating officer without any reason, delayed in submitting the final report. The investigating officer knows that, after about 10 years, a business man cannot identify his customer who came to his shop about 10 years back. I doubt the delay in submitting the final report in this case is also a conspiracy by the officials of the police with the accused in this case.
11. PW5 is the Manager of another company run at Madurai. He was examined to prove Exts.P12 to P14. Exts.P12 to P14 are also carbon copies of the bill. Exts.P12 to P14 CRL.A.Nos.2027, 2079 & 2080 OF 2004 19 are seized based on Ext.P15 mahazar. Of course PW5 was examined to prove that bond white papers of medium thickness was sold by him based on the bill produced by him. He deposed that, it was sold to Thomachan, National Printers, Kottayam - 3. It was stated that, on 01.03.1990, he had sold Gateway Airmail Bond Paper to Priyadarsini Printers, Madurai. The carbon copy of that bill was marked as Ext.P13. Ext.P14 is the carbon copy of another bill dated 21.08.1999 issued by him. But prosecution witness No.5 did not identify accused Nos.4 and 6 as the person seen along with the Police, who were stated to have purchased the article mentioned in the aforesaid bill. He was not able to identify these accused. Simply because Exts.P12 to P14 are seized as per Ext.P15 seizure mahazar, that will not connect the accused in this case, unless there is evidence to show the same. PW5 in this case was examined before the court on 02.08.2004. The CRL.A.Nos.2027, 2079 & 2080 OF 2004 20 final report in this case was filed on 25.08.2000. PW5 is also a person from Madurai, Tamil Nadu. Nobody can expect that, they can identify their customers after about 15 years. At this time also I doubt the conduct of the investigating officer in submitting final report in this case after 10 years.
12. PW6 is the wife of the 11th accused. PW6, of course did not support the prosecution case. PW7 deposed that during 1990, he had worked as offset printer in an institution called S.K.Enterprises. According to the prosecution, it was with the help of PW7, the offset printing press was stated to have been sold by the proprietor and taken to another place and installed there. PW7 also disown his statement. Exts.P19 and P22 are the portions marked as contradictions to the statement given by PW7. Prosecution witness No.18 deposed that, he had gone to a place at Karimannoor for fitting their printing press. CRL.A.Nos.2027, 2079 & 2080 OF 2004 21 But the alleged place of seizure in this case is situated at Tripunithura and not in Karimannoor and therefore his evidence also has no value and it will not connect the accused in this case. He was also declared hostile by the prosecution and there is nothing to connect the evidence of PW8 with the accused in this case. PW9 is examined to show that, he was an electrician and his service was also utilized by the accused for fitting the printing machine and for giving electric connection. He was also declared hostile and Exts.P25 and P26 are the contradiction marked in his statement. According to the prosecution, accused No.6 has taken a printing machine and as permitted by PW10, A6 had kept certain parts of the press in the verandha of the outhouse and after a few days it was taken by A6. PW10 also betrayed the prosecution. PW11 to PW16 are cited by the prosecution to state that some of the accused persons were seen meeting each CRL.A.Nos.2027, 2079 & 2080 OF 2004 22 other. All these witnesses turned hostile and Exts.P28 to P30 are the portion of the statement marked as contradiction. PW17 is the Village Officer and through him, the prosecution adduced evidence that, the building mentioned in Ext.P1 is situated in Cochin Corporation. PW18 was examined to state that House No.29/3226 stood in the name of Gopala Menon, but no document was produced to prove that. It is not stated, whether the above said number correspond to the number XXX/750 shown in Ext.P1 search list.
13. As I stated earlier, PW19 and PW20 are the detecting officers. PW21 is the investigating officer. PW22 was the Manager of Thankam Enterprises, Madurai. It was stated by him that the said institution deals with the equipments of offset printing press. Ext.P43 is the bill dated 25.04.1989, issued in the name of K.L.Muraleedharan of Thodupuzha East. As per that bill, a machine for the offset printing which is used for exposing the CRL.A.Nos.2027, 2079 & 2080 OF 2004 23 printing frame from the film to the plate, was sold. It was stated by him that, if the impression is carried to the plate, that plate can be used for printing purpose. It was stated that the said bill was seized by the Police as per Ext.P44 mahazar. But he states that, he cannot identify the person who has purchased the article mentioned in Ext.P43. Therefore, the evidence of PW22 and Ext.P43 also will not improve the case of the prosecution that accused has any connection to the seized articles in this case, based on Ext.P1 search list.
14. PW23 was the inspector who conducted part investigation in this case. PW24 is the person retired from Ernakulam Government Press. According to him, based on the requisition of the officer concerned, Ext.P46 report was produced by him, which was prepared by an expert foreman in the Government Press. He narrate about the functioning of the machinery found at the place of seizure. He CRL.A.Nos.2027, 2079 & 2080 OF 2004 24 deposed that, if there is electricity, machinery available at the seized premises, can be functioned. Except this, there is no other evidence from the side of PW24. PW25 is another investigating officer in this case. PW1 to PW24 are the prosecution witnesses.
15. The evidence adduced by the prosecution in this case are the following:-
(1) PW19 and PW20 searched the building No.XXX/750 of Cochin Corporation, situated in Poonithura Village, Poonithura Desom.
(2) The witnesses who accompanied PW19 and PW20 are not independent witnesses. They turned hostile to the prosecution also.
(3) According to PW19 and PW20,
the article mentioned in Ext.P1
search list was seized from the
building No.XXX/750 of Cochin
Corporation, on 21.03.1990. The search was started on 21.03.1990 at 2.30 p.m and it concluded on 22.03.1990 at 8 a.m. CRL.A.Nos.2027, 2079 & 2080 OF 2004 25 (4) PW19 and PW20 deposed that, accused Nos.1 to 8 were present at the place of seizure.
(5). PW21, the investigating officer deposed that, he also went to the place of search at the time of search because he was the detecting inspector, CBCID, Ernakulam. According to him, when he reached there, accused Nos.1 to 8 was not present there.
Except the above evidence adduced by the prosecution, there is no other evidence to connect with the accused in this case, because all other witnesses turned hostile.
16. The learned Sessions Judge rejected the evidence of PW21 and convicted accused Nos. 1 to 7 based on the testimony of PW19, PW20 and Ext.P1 search list. The learned Sessions Judge observed that, the evidence is creditworthy and even though it is not corroborated by independent witnesses, the search and seizure of the materials are proved by PW19 and PW20. The learned Sessions Judge CRL.A.Nos.2027, 2079 & 2080 OF 2004 26 also noted that, as per their evidence accused Nos.1 to 7 were present at the time of seizure and that itself is enough to connect those accused to the crime because they have no explanation for their presence at the place of search at the material time.
17. I am not in a position to agree with the learned Session judge on this aspect. All the witnesses turned hostile to the prosecution. PW19 and PW20 are proceeding to the place for search after getting sufficient time. PW19 and PW20 is taking an accused in a murder case and a tea seller in the Police Station as independent and respectable witnesses to witness the search. Even if, for the sake of argument that, the evidence of PW19 and PW20 are accepted to the effect that, they searched the building No.XXX/750 of Cochin Corporation, there is nothing to connect the accused Nos. 1-7 to the crime. Of course PW19 and PW20 deposed that, accused Nos. 1 to 7 were present at the time of search CRL.A.Nos.2027, 2079 & 2080 OF 2004 27 and seizure. But that version is an uncorroborated testimony of the Police Officers. It is true that it is a settled position that the uncorroborated testimony of the Police Officers can be accepted if the same is credit worthy. But in this case, PW21, the investigating officer deposed before the Court that, he also went there at the time of search and he didn't see the presence of accused Nos. 1- 7 at the place of seizure. What remains is the contradictory version of PW19 and PW20 on one side and the evidence of PW21, the investigating officer regarding the presence of accused Nos. 1 to 7 at the place of seizure. The presence of accused is a material evidence to connect the accused with the crime. When there is contradiction about the presence of the accused among the Police Officials itself, can this Court convict the accused or this Court should give benefit of doubt to the accused is the question. I think, this is a case in which the benefit of doubt CRL.A.Nos.2027, 2079 & 2080 OF 2004 28 will go to the accused. PW21 is not a stranger. PW21 is the Detecting Inspector of crime branch. He is not a lay man. He knows the effect of the evidence he deposed before the Court. He was examined after the examination of the independent witness and other witnesses. He knows that, the only material evidence available in this case is the deposition of PW19 and PW20 to the effect that accused Nos. 1 - 7 were present at the place of occurrence. Knowing fully well that, PW21 deposed before the Court that, he didn't see accused Nos. 1 - 7 at the place of occurrence. When such contradictory versions are given by the Police Officials themselves, I am not in a position to accept the version of PW19 and PW20 to the effect that, accused Nos. 1 - 7 were present at the time of seizure of the articles based on Ext.P1 search list.
18. Moreover, except the evidence of PW19 and PW20, the prosecution was not able to produce any other evidence to connect accused CRL.A.Nos.2027, 2079 & 2080 OF 2004 29 Nos. 1 - 7 to the case. The prosecution relies the version of PW19 and PW20 regarding the presence of accused Nos. 1 - 7 at the place of seizure. I requested the Public Prosecutor to verify the records to find out whether there is any other materials to connect the accused, except the oral evidence of PW19 and PW20 coupled with Ext.P1 search list regarding the presence of accused Nos. 1-
7. Public Prosecutor fairly conceded that, this is the only evidence to connect the accused to the crime. When such an evidence is contradictory to the evidence of PW21, the Investigating Officer, I am not in a position to accept the evidence of PW19 and PW20 to convict accused Nos. 1 - 5. I think, accused Nos. 1- 7 are entitled to the benefit of doubt.
19. Before concluding I have to mention the sorry state of affairs in this case. I think the Director General of Police should conduct an enquiry regarding the investigation CRL.A.Nos.2027, 2079 & 2080 OF 2004 30 in this case by a senior officer of the Police Department. After reading the evidence and documents produced in this case by the prosecution, I doubt an unholy relationship of the accused in this case, with the Police Officers who detected the case and who investigated the case. Following are some of the doubts created in my mind.
(1) PW19 and PW20 are getting
definite information regarding the
possession of counterfeit notes and
the printing of counterfeit notes in building No. XXX/750 of Cochin Corporation. Section 104 of the Cr.PC states that, at the time of search, respectable and independent witnesses should be there. The officer is going for search with an accused who is involved in a murder case and a tea seller in the Police Station.
(2) The alleged seizure in this
case was on 21.03.1990. As far as
CRL.A.Nos.2027, 2079 & 2080 OF 2004 31
counterfeit notes are concerned,
seizure, arrest and an expert opinion regarding the alleged counterfeit note are the main points to be investigated. In this case, the seizure was effected on 21.03.1990. The expert opinion regarding the counterfeit notice were obtained before 1995. The Final Report was filed after about 5 years from that date. Absolutely no explanation for the prosecution for the delay in submitting the Final Report. It is a fact that, witnesses in the case may not be able to identify the accused and remember the facts, if there is a long delay in submitting charge sheet. I doubt a criminal intend on the part of the officials to delay the investigation and to submit final report in this case. Prima facie, according to me, the investigating CRL.A.Nos.2027, 2079 & 2080 OF 2004 32 officer, delayed the investigation and submitted the final report after 10 years, only to help the accused to see that, the witnesses will not identify the accused if there is delay and the accused can escape in such situation. That exactly happened in this case. All the witnesses were not able to identify the accused and therefore the entire prosecution case collapsed.
(3). PW21 is the detecting
Inspector, Crime Branch. Crime Branch
is a wing which investigates important cases in the State. PW21 deposed before the Court that he didn't see the presence of the accused at the place of seizure, whereas, PW19 and PW20, the detecting Officers deposed before the Court that, accused Nos. 1
- 7 were present at the place of occurrence. PW21, the Police Officer was declared hostile to the CRL.A.Nos.2027, 2079 & 2080 OF 2004 33 Prosecution by the Public Prosecutor.
An enquiry on this aspect is
necessary. PW21 deposed before the
Court, after his retirement. It is
the duty of the Director General of Police to see that the retired officers from the Police Department give proper evidence in the respective cases in which investigation is conducted by such retired officers. In this case, PW21 is giving evidence after his retirement from service. I doubt that the deposition of PW21 about the absence of accused Nos. 1 - 7 at the place of seizure, which is against Ext.P1 seizure, is because of some unholy relationship between PW21 and the accused in this case.
(4). There cannot be any thinking to the officers of the Police Department that, after retirement, they can depose before the Court about CRL.A.Nos.2027, 2079 & 2080 OF 2004 34 a case anything and even against the Prosecution case, which they themselves witnessed or investigated. A mechanism to protect the criminal investigation system is necessary.
20. The Court cannot be a silent spectator in these situations. From the facts stated above, I think there is a chance for an unholy relationship between the Police Officers and the accused in this case. I am not making any further opinion about this, because it is a matter to be enquired by a senior Police Officer. If this attitude is continued, the criminal jurisprudence will not reach anywhere. It is to be noted that, the accused in these cases were alleged to be found in possession of counterfeit notes and machinery for printing counterfeit notes. According to the Prosecution, seizure of counterfeit is worth about 75 lakhs. It is also to be noted that, machineries for printing the counterfeit notes are also CRL.A.Nos.2027, 2079 & 2080 OF 2004 35 seized. In such situations, the Police Officer, himself turning hostile to the Prosecution, will create doubt to the Court. That is why, I started this Judgment with the sentence, "Something is rotten in the State of Denmark". I don't want to make any further comments on this. Untrammeled by any observations in this judgment, the Director General of Police, State of Kerala will depute a Senior Officer to conduct an enquiry regarding the investigation and submission of Final Report in this case. In the enquiry, if any criminal offence is made out, a case should be registered and investigated in accordance to law. The Director General of Police should submit an action taken report before the Registrar General of this Court within 6 months from the date of receipt of a copy of this judgment.
21. In the light of the findings in the earlier paragraphs, I think, accused Nos. 1-7 in this case is entitled benefit of doubt. CRL.A.Nos.2027, 2079 & 2080 OF 2004 36 Therefore, Crl. Appeal Nos. 2079/2004, 2080/2004 and 2027/2004 are allowed. The conviction and sentence imposed on the appellants as per judgments dated 18/11/2004 in Sessions Case No. 17/2003 on the file of the Vth Additional Sessions Judge, Ernakulam is set aside. The Appellants are set at liberty. The bail bond if any, executed will stand cancelled.
The Registry will forward a copy of this judgment to the Director General of Police, State of Kerala, forthwith for compliance of the directions in paragraphs 19 and 20 of this judgment.
Sd/-
P.V.KUNHIKRISHNAN JUDGE uu 28.05.2020