Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE SUNIL THOMAS MONDAY, THE 23RD DAY OF MARCH 2020 / 3RD CHAITHRA, 1942 CRL.A.No.667 OF 2004(A) AGAINST THE ORDER/JUDGMENT IN SC 178/2003 DATED 07-04-2004 OF ADDITIONAL DISTRICT COURT,KOTTAYAM
APPELLANT/1st ACCUSED: THOMAS @ ROY SON OF MATHEW, ALUMKAL VEEDU, AYARKUNNAM KARA, AYARKUNNAM VILLAGE. BY ADV. SMT.K.DEEPA (PAYYANUR) RESPONDENT/COMPLAINANT: DETECTIVE INSPECTOR CB CID (CPS),ERNAKULAM, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-03-2020, ALONG WITH CRL.A.672/2004(B), THE COURT ON 23-03-2020 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE SUNIL THOMAS MONDAY, THE 23RD DAY OF MARCH 2020 / 3RD CHAITHRA, 1942 CRL.A.No.672 OF 2004 AGAINST THE ORDER/JUDGMENT IN SC 178/2003 DATED 07-04-2004 OF ADDITIONAL DISTRICT COURT,KOTTAYAM
APPELLANT/ACCUSED NO.2: GEORGEKUTTY JOSEPH @ SHIBU S/O. GEORGE, KAKKATTIL VEEDU, NEAR GOVT. I.T.I., ANICKADU KARA, ANICKADU VILLAGE. BY ADVS. SRI.P.VIJAYA BHANU (SR.) SMT.P.MAYA RESPONDENT/COMPLAINANT: STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SMT.ANEETHA A.G.,SPL.G.P.(CO-OPERATION) SR.PP. - D.CHANDRASENAN HIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-03-2020, ALONG WITH CRL.A.667/2004(A), THE COURT ON 23-03-2020 DELIVERED THE FOLLOWING:
COMMON JUDGMENT
These appeals are preferred by accused Nos.1 and 2 respectively, who stand convicted in S.C.No.178 of 2003 of the Additional Sessions Court, Kottayam, for offence punishable under section 489(C) r/w 34 of the Indian Penal Code.
2. Prosecution allegation was that, on 19.08.1992, PW1 the
detective Inspector of Crime Branch got information that one person was holding counterfeit currency notes at a specific place. He along with the party proceeded to the spot and intercepted the first accused. He was found in possession of MO1 to MO4, 400 counterfeit currency notes of Rs.10/- denomination, kept concealed in MO.5 and MO.6 bags. On interrogation, he revealed the complicity of the second accused.
Second accused was intercepted on the same day at 5.30p.m. On interrogation, he revealed the concealment of counterfeit notes at his
house. He led the party to his house. From there, MO8 series 76 counterfeit notes of Rs.10/- denomination were recovered. In the course of investigation, it was revealed that, accused Nos.3 and 4 have handed over the above currency notes to them. After investigation, final report was laid for offences punishable under sections 489B and 498C r/w 34
of the IPC. All the four accused faced trial before the Additional Sessions Court. On the side of the prosecution, PWs.1 to 12 were examined and Exts.P1 to P14 were marked. MOs.1 to 9 were identified. On the side of the accused, DW1 was examined and Exts.D1 to D3(a) were marked. Court below, on an evaluation of the entire materials, found accused Nos.3 and 4 not guilty and they were acquitted. Accused Nos.1 and 2 were found guilty of offence punishable under section 489(C) r/w 34 of the IPC. Both were sentenced to undergo RI for 5 years and to pay a fine of Rs.10,000/- and in default to undergo RI for one year.
3. Aggrieved by the above conviction and sentence, both the
accused have preferred these separate appeals. Heard learned counsel Mrs.K.Deepa (Payyannur) for first accused, Mr.Sarath for second accused and Mr.D.Chandrasenan learned senior Public Prosecutor. Examined the records.
4. Prosecution essentially relied on the oral evidence of PW.1
who was the detecting officer and also PW9, who was a member of the detection team. Prosecution sought corroboration of the materials from the evidence of PWs.2 to 8 who were claimed to be independent witnesses to the interception, search and preparation of contemporaneous documents. It also relied on Exts.P1 and P2 seizure mahazars, Ext.P4(a) confession statement given by the second accused which led to the recovery of MO8 series of notes.
5. Defence set up by the learned counsel for the accused was that, both the accused were absolutely innocent and they have been
falsely implicated. They also contended that, prosecution failed to establish the guilt against the accused. It was contended by the first accused that, he was arrested by the police on 15.08.1992 and kept in custody till 19th and on that day, at 12 noon, he was taken to a junction
and enacted a drama of interception, search and seizure. He was brought to the crime Branch office thereafter and produced before the Magistrate on 20.08.1992. It was contended by the first accused that a news item was published in a local daily on 17.08.1992 referring to the interception of the first accused by the Crime Branch along with the counterfeit notes. Hence, it was contended that the specific case of the prosecution that the recovery was effected on 19.08.1992 and all other allegations made consequent to that were false and cannot be relied on.
6. PW1 is the detecting officer. He deposed that, on the
relevant day, he got information regarding the possession of fake counterfeit notes by one person. He along with the party proceeded to the spot, intercepted the first accused and recovered MOs.1 to 4 which
were four bundles of counterfeit notes of Rs.10/- each. They were wrapped with MO7 newspaper. It was kept sealed in MO5 bag which was kept inside MO6 bag. Ext.P1 was the seizure mahazar in relation to that seizure. Ext.P2 was the report given to the police and Ext.P3 crime was registered as Crime No.151/TR/1992 by Manarkkad police station.
7. According to PW1, on questioning the first accused, he
revealed about the involvement of the second accused. Second accused was intercepted at a different place at 5.30p.m. on that day. He gave Ext.P4(a) confession statement about the place of concealment of the remaining notes. PW1 deposed that, second accused led PW1 to his house, from where, MO8 series of counterfeit notes tied with MO9 rubber band was recovered. He deposed that, all the counterfeit notes were sent for expert opinion and it was confirmed by Ext.P13 report that, they were counterfeit notes. Exts.P5 and P6 were the list of properties in relation to the counterfeit notes.
8. In the cross examination, the specific suggestion put to the accused was that the first accused was arrested from his house on
17.08.1992. He was further cross examined with reference to newspaper report dated 17.08.1992, stating that the first accused was arrested from his house with counterfeit notes worth Rs.7000/-. Both suggestions were denied by PW1.
9. PW2 was claimed to be an independent witness. However,
he did not support the prosecution case and turned hostile. However, he admitted the signature in Ext.P1 mahazar. He was declared hostile and was confronted with his previous statement. He deposed that, he was shown one person, who was sitting in the police jeep and police had enquired whether he knew that person. He could not identify that
person from among the accused. He asserted that, he had not seen any recovery effected from that person. He also deposed that, he had seen one packet held by the police, which contained counterfeit notes.
10. PW3 was another independent witness who also did not
support the prosecution case. He was declared hostile. PWs.4 and 5 were two other independent witnesses. Both turned hostile and hence were given up by the prosecution. PW6 in his evidence deposed that, the police showed him a person sitting in a jeep. He was informed that, he was involved in a counterfeit note case. He deposed that, he did not see the currency notes. He also deposed that, he had signed a paper. He asserted that, he was not questioned by the police. PW7 was a
witness to Ext.P4 seizure mahazar. He also was declared hostile. He asserted that, he was not questioned by the police. PW8 was the mother of the second accused who also did not support the prosecution case in its entirety. She was also declared hostile and was cross examined.
11. PW9 is a crucial witness relied on by the prosecution. He was a police officer of the Crime Branch. According to him, he had
accompanied PW1 and intercepted the first and second accused. He deposed exactly in terms of the prosecution case and in consonance with the version spoken by PW1.
12. Prosecution heavily relied on the evidence of PW1 and PW9
to establish the allegations against the accused. Corroboration was sought from the stray versions of PW2 to PW8 given by them in support of the prosecution case though they were declared as hostile. Prosecution also relied on contemporaneous documents, Exts.P1 and P4 which were the seizure mahazars and also other documents, Ext.P4(a) confession statement and Ext.P13 report which established that Mos.1 to 4 and 8 were fake currency notes.
13. In the background of the confession of the first and second
accused, crucial question that arises is whether prosecution has succeeded in establishing that MOs.1 to 4 and 8 were recovered from the first and second accused and they knowingly possessed it. Court below had held that the only evidence to connect Exts.A3 and A4 was the evidence of PW8. She turned hostile and nothing could be elicited from her to establish the allegation against third and fourth accused. Court below relied on the evidence of PWs.1 and 9 along with the contemporaneous documents to convict accused Nos.1 and 2.
14. The evidence of prosecution was assailed by the learned
counsel for the accused on several grounds. It was specifically contended by the learned counsel that the recording of the evidence of PWs.2 to 8 who were hostile witnesses was improper and court below should not have relied on any part of the their evidence to the extent it
supported the prosecution case. It was contended by the learned counsel that, PWs.4 and 5 were given up after they were offered for evidence. Regarding the other hostile witnesses, it was contended by the prosecution that, after declaring them as hostile, instead of inviting their attention to the specific portions of the previous statement given to the police and marking specific portions denied by the witness, entire section 161 Cr.P.C statement in support of the prosecution case were got recorded and at the end of the cross examination and one of the
specific portions of the entire evidence alone was marked. By this method, entire materials in support of prosecution case stated in the 161 statement were brought on record, it was contended.
15. Reference to the evidence of PW2, PW3, PWs.6, 7 and 8 show one common feature. The above did not support the prosecution case in any manner in the chief examination. They were declared as
hostile. Thereafter, statement recorded in the section 161 statement supporting the prosecution are seen recorded and at the end of the statement, one question was put to them referring to a specific portion of the section 161 statement and that portion alone was marked. Hence, it would appear that though they were declared as hostile, several materials were recorded, as if they have been voluntarily spoken by the witness. In the re-examination of the accused, respective
witnesses stood by the evidence given in the chief examination. The typical instance is the case of PW8, who is the mother of the second accused. In the chief examination, she completely denied the prosecution case. After declaring her hostile, several statements in support of the prosecution case incriminating materials connecting her own son are seen recorded. At the end of that version, one specific allegation is denied and marked on the side of prosecution. However, in the re-examination, she stood with the accused.
16. It is true that the court below did not completely rely on
PWs.2 to 8. However, this method of recording the entire section 161Cr.P.C statement and recording as if it has voluntarily come through the mouth of each hostile witnesses, appears to have caused prejudice to the accused. Highly incriminating materials have been brought on record through these witnesses as if they were voluntarily spoken by them.
17. Further, PW4 and PW5, turned hostile in the chief
examination. On finding that they have turned hostile, they were given up. In fact, prosecutor should have given up them even before offering them for examination. Once they are sworn in, even if they turn hostile, the accused should be given an opportunity to cross examine them. The method of giving up of witnesses, after declaring them hostile denied the opportunity to the accused to cross examine such witnesses and elicit facts in support of them. Evidently, the versions of PWs.2 and 3
are to be eschewed completely in so far as it touches upon the facts
supporting the prosecution case.
18. Evidently, PWs.1 and 9 are the only witnesses supporting the prosecution case. Both are official witnesses. There is nothing wrong in exclusively relying on the evidence of official witnesses, if they are
found to be convincing. It is to be noted that, some of the hostile witnesses have mentioned that, they have seen the first accused sitting in the jeep and holding a bag. In fact, they did not support the recovery at all. The entire evidence has to be appreciated in the background of the specific defence set up by the accused. According to the learned counsel for the accused, the first accused was taken into custody and had a seizure on 17.08.1992, kept in custody and a farce of a recovery
effected on 19.08.1992. This suggestion was put to all the crucial witnesses in the cross examination.
19. To substantiate this defence, accused relied on a newspaper
report produced as MO3(a). It was marked through DW1. The content of the above publication was that counterfeit notes corresponding to 7000 rupees was recovered from the house of one Baby, Muttappalli at Ayarkunnam. It was further reported that, it was understood that a 19 year old person, by name Thomas Kutty was in the custody of the police. Newspaper item was published on 17.08.1992. There is no dispute that such a news item was published. Prosecution did not even suggest that,
this information relate to a different incident and was totally unconnected with the present incident. Records shows that the first accused was known as Thomas @ Roy. He belonged to Ayarkunnam.
He was aged 19 years. It is true that, DW1 in his evidence could not
assert the genuineness of the news item or its source. Evidently, defence, version is to be appreciated on the yardstick of broad probability and defence need not establish it beyond reasonable doubt. A perusal of the above defence coupled with MO3(a) and the oral evidence of DW1 shows that the newspaper item is substantially in consonance with the defence set up by the accused. If the recovery as suggested by the prosecution was on 19th, definitely, on 17th such a newspaper could not have been published. In other words, this material is sufficient to cast serious doubt on the evidence of PW1 and PW9 that the first accused was intercepted on 19.08.1992. Necessarily, the entire prosecution case has to be approached with greater care and caution.
20. According to prosecution, recovery of the notes from the
possession of the second accused was pursuant to disclosure of the first accused. It is seen that the court below heavily relied on the confession statement of the second accused leading to the alleged involvement. Hence, if interception and recovery of notes from the first accused is doubtful, necessarily, that benefit should enure to the second accused also. It is also to be seen that the house from where the notes were
allegedly recovered was not in the exclusive possession of the second accused. Prosecution has not established that no other person than the second accused had access to the house.
21. The credibility of the versions spoken by PW1 and PW9 have
to be tested against the versions of PW2 to PW8. It is pertinent to note that, six witnesses who were heavily relied on by the prosecution and who were claimed to be independent witnesses did not support the prosecution case. On the other hand, some of the witnesses has specific version that, they have not seen the recovery and they were only shown the presence of the first accused in the police jeep along with the remaining accused. This tally with the defence that first accused was in custody prior to 19th, and on that day, he was taken to a junction and a farce of a recovery was done. It is also to be noted that, in the above circumstance, versions of PW1 and PW9 are totally unreliable.
22. According to PW1, on the same day of interception, he had
questioned 12 witnesses. He gave the names of persons questioned. It does not include PW9. It was also seen that, though he stated that 12 witnesses were questioned by him, CD produced did not show the statements of these witnesses. On the other hand, PW9 stated that, on the same day of interception, PW1 had recorded his statement. He asserted that, he had given statement only to PW1. On the other hand, PW12 the investigating officer stated that, CWs.11 to 15 which included PW9, were questioned and their statements recorded by CW17, the investigating officer. This makes the evidence of PW9 doubtful.
23. Having considered the entire facts, I feel that, it is not safe to
rely on the oral evidence of PW1 and PW9 alone to convict the accused. The evidence let in by the prosecution through the above witnesses are not sufficient to inspire confidence. To that extent, I am inclined to given them the benefit of doubt. Accused are liable to be acquitted. In the result, appeals are allowed. Conviction and sentence of the first and second accused entered into by the court below stands set aside. Accused are acquitted. Bail bonds executed by them stands discharged. Sd/- SUNIL THOMAS Sbna JUDGE