Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 15TH DAY OF JUNE 2020 / 25TH JYAISHTA, 1942 CRL.A.No.1758 OF 2004 AGAINST THE JUDGMENT IN SC NO.18/2004 DATED 07-10-2004 OF THE COURT OF VTH ADDITIONAL SESSIONS JUDGE, ERNAKULAM APPELLANT/1ST ACCUSED: RADHAKRISHNAN S/O. VASUDEVAN, RESIDING IN THE HOUSE OF THAIKKATTUSSERIL, MADATHIL KUTTAN, OLLUR. BY ADVS. SRI.P.JAYABAL MENON SRI.P.K.SOYUZ RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. OTHER PRESENT: SR.PP. SRI.B.JAYASURYA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15.06.2020, ALONG WITH CRL.A.1857/2004(C), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.APPEAL NO.1758 OF 2004 & 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 15TH DAY OF JUNE 2020 / 25TH JYAISHTA, 1942 CRL.A.No.1857 OF 2004(C) AGAINST THE JUDGMENT IN SC NO.18/2004 DATED 07-10-2004 OF THE COURT OF VTH ADDITIONAL SESSIONS JUDGE, ERNAKULAM
APPELLANT/2ND ACCUSED: SUHAS S/O. RAJAPPAN, 'SURJIT NIVAS', KANJIRAMATTOM, ERNAKULAM. BY ADVS. SRI.P.JAYABAL MENON SRI.P.K.SOYUZ RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SR.PUBLIC PROSECUTOR SRI. B.JAYASURYA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15.06.2020, ALONG WITH CRL.A.1758/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.APPEAL NO.1758 OF 2004 & 3
JUDGMENT
Dated this the 15th day of June, 2020 ... These appeals are filed by the accused in Sessions Case No. 18 of 2004 on the file of the V th Additional Sessions Judge, Ernakulam. First accused filed Crl.Appeal No.1758 of 2004 and the second accused filed Crl.Appeal No. 1857 of 2004. Since these appeals are filed by the first and second accused against the judgment in the same Sessions Case, I am disposing of these appeals by this common
judgment.
2. Two accused are stand charge sheeted by the
Detecting Inspector, CBCID, CIFS, Ernakulam alleging offences punishable under Sections 489-B and 489-C of the Indian Penal Code (hereinafter the parties are mentioned according to their rank in the trial court).
3. The prosecution case is that, on 26.02.2001, CRL.APPEAL NO.1758 OF 2004 & 4
PW10, the Sub Inspector of Police, Mulanthuruthy Police Station received information at 11 a.m. that two persons were going to exchange counterfeit currency notes and for that purpose they will be reaching the rubber estate near the house of Sasidharan Pillai, who was examined in this case as PW1. Accordingly, PW10 took PW9 and other Police Constables and proceeded to the house of PW1. After reaching there, they hide in one of the rooms of the house of PW1 waiting for the two persons coming there with counterfeit currency notes. At about 4 p.m., they saw the two persons coming along the lane situated in front of that house. PW10 and others hurried to the lane and intercepted the two accused persons. The names and addresses of those two persons were taken down. After that, the body of A1 was searched in the presence of the witnesses. Five bundles of currency notes wrapped in papers were found in the waist (in between the waist and the jeens). When those bundles were taken out and
CRL.APPEAL NO.1758 OF 2004 & 5
examined, altogether 10 bundles of hundred rupees currency notes were seen. Those currency notes were found to be counterfeit notes. When the body of the second accused was searched, a bundle of currency notes covered with paper was seen tucked in the waist cloths (in between the mundu and body of the accused). When that bundle was taken out and examined, there were hundred currency notes of the denomination of Rs.100/-. It was also counterfeit notes. There were currency notes of the value of Rs.99,800/- in the bundles taken out from the possession of the first accused. Counterfeit notes of Rs.10,000/- were in the bundle taken out from the possession of the second accused. A mahazar was prepared for the seizure of the counterfeit notes and other properties. The accused were arrested then and there. After reaching the Police Station, the F.I.R. was registered against the accused persons.
4. To substantiate the case, the prosecution examined PW1 to PW13. Exhibits P1 to P15 are the CRL.APPEAL NO.1758 OF 2004 & 6
exhibits marked on the side of the prosecution. Exhibits D1 to D3 are the exhibits marked on the side of the defence. MO1 to MO5 are marked as material objects.
5. Ongoing through the evidence and documents,
the trial court found that, the accused are not guilty under Section 489-B IPC. But, the trial court found that, the accused are guilty under Section 489- C IPC. The accused are sentenced to undergo rigorous imprisonment for three years each and to pay a fine of Rs.25,000/- each. In default of payment of fine, the accused are directed to undergo rigorous imprisonment for one year each. Aggrieved by the conviction and sentence, the accused filed these appeals.
6. Sri.S.Sreekumar, the learned Senior Counsel
appearing for the accused, submitted that there is no corroboration to the evidence of PW9 and PW10. All other witnesses are turned hostile to the prosecution. Moreover, the learned Senior Counsel CRL.APPEAL NO.1758 OF 2004 & 7
also submitted that, the evidence adduced by the prosecution is artificial and unbelievable. According to the counsel, PW9 and PW10 were hiding in the house of PW1. PW1 was declared hostile. He deposed that, there was no such incident. In such circumstances, it is not possible to rely the evidence of PW9 and PW10. The learned Senior Counsel also submitted that, the evidence of PW1 and the evidence of Detecting Officers are interconnected. Since PW1 was declared hostile, the case of PW9 and PW10 cannot be believed because the evidence of PW9 and PW10 are connected to the testimony of PW1. Moreover, according to the learned Senior Counsel, the evidence of PW9 and PW10 itself is not believable. There are several contradictions in the evidence of PW9 and PW10 about the seizure itself. Therefore, the learned Senior Counsel submitted that the accused are entitled to the benefit of the doubt.
7. The learned Public Prosecutor submitted that, even though the witnesses turned hostile, there is CRL.APPEAL NO.1758 OF 2004 & 8
evidence adduced by PW9 and PW10, the Detecting Officer, and the accompanying Police Constable. There is nothing to disbelieve their evidence coupled with Ext.P1 seizure mahazar. According to the Public Prosecutor, the seizure is proved. There is nothing to interfere with the judgment passed by the trial court.
8. After hearing both sides, the point to be decided is whether the accused committed the offence under Section 489-C IPC.
9. To substantiate the case, the prosecution
examined PW1 to PW13. Admittedly, PW1 to PW8 turned hostile to the prosecution. PW9 is the Police Constable who accompanied PW10, the Sub Inspector of Police in the search. PW11 is the Investing Officer, who conducted preliminary investigation. PW12 conducted the subsequent investigation. PW13 submitted the charge sheet.
10. What remains is the evidence of PW9 and PW10 along with Ext.P1 seizure mahazar. The question is CRL.APPEAL NO.1758 OF 2004 & 9
whether evidence of PW9 and PW10 can be believed to convict the accused, even though the same is not corroborated by any independent witnesses. PW1, Sasidharan Pillai, who, according to the prosecution had given telephonic information to PW10 about the possession of counterfeit notes by the accused. He completely betrayed the prosecution. He deposed that he did not provide any information to the Police. He also stated that, PW10 and Police party did not hide in his house, nor did he see the police party apprehending the accused persons on the lane in front of his house on 26.2.2001 at about 4 p.m. But, he admits the signature in Ext.P1 seizure mahazar. He also admitted his signature in Ext.P2 scene mahazar, which according to the Circle Inspector was prepared on 27.2.2001 at 10 a.m. Exhibits P3 to P6 are the portions marked as contradictions in the statement of PW1 alleged to be given to the Investigating Officer. PW2 is another independent witness, and he also turned hostile to the prosecution. But, he admits his
CRL.APPEAL NO.1758 OF 2004 & 10
signature in Exts.P1 and P2. Exhibit P7 to P10 are the portions marked as contradictions in the statement given by him to the Police. PW3 is another independent witness relied by the prosecution. He was also declared hostile, and Exhibits P11 to P15 are the statements marked as contradictions. PW4 also deposed that, he did not see the Police seizing counterfeit currency notes from the possession of the accused. Exhibits P16 to P20 are the portions of his statements marked as contradictions. He was also declared hostile. PW5 was examined by the prosecution to contend that PW10 had inquired as to where the house of PW1 is situated. But, PW5 also did not support the prosecution case. Exhibits P21 and P22 are the portions of his statements marked as contradictions. PW6 and PW7 are the other witnesses examined by the prosecution. They also stated that they did not see the Police seizing the counterfeit notes from the possession of the accused. Exhibits P23 and P24 are the portions of the statements of
CRL.APPEAL NO.1758 OF 2004 & 11
PW6. Exhibits P25 and P27 are the portions of
contradictions in the statement given by PW7. PW8also did not support the prosecution. According to the prosecution, PW1 and PW2 had seen the entire incident, while PW3 to PW8 had witnessed part of the incident. But, PW1 to PW8 did not support the prosecution. Nothing in the evidence adduced by PW1 to PW8 can be relied on by the prosecution except the fact that PW1 and PW2 admit the signature in Ext.P1 seizure mahazar.
11. According to the prosecution, MO5 is a diary
that belongs to the first accused. That was practically admitted by the first accused, according to the learned Sessions Judge. It is pointed by the prosecution that, name and address of the first accused who belongs to Thrissur were noted in MO5. Even the blood group of the first accused was mentioned therein. There was no specific case for the accused as to how MO4 the purse cum pocket diary of the second accused and MO5 the pocket diary of the
CRL.APPEAL NO.1758 OF 2004 & 12 first accused happened to be in the rubber estate about 1.5 meters away from the place of occurrence. MO4 and MO5 were seized as per the scene mahazar. It is true that, the Investigating agency did not probe further with the help of telephone numbers available in MO4 and MO5.
12. It is contended by the appellants that,
there is discrepancies regarding the place of occurrence in the statement of PW10 given to the Investigating Officer. The place of occurrence was noted by the PW12, the Investigating Officer, as the court-yard of the house of the first accused. PW9 and PW10 have stated in unambiguous terms that the pathway in front of the house of PW1 is in the same level of the court-yard of his house. It has also come out in evidence that, there is nothing on the ground to separate the court-yard and the pathway. In counterfeit currency note cases, the place of occurrence has no much importance. Here is a case where PW9 and PW10 categorically gave evidence that,
CRL.APPEAL NO.1758 OF 2004 & 13
the accused in this case were intercepted and some of the counterfeit notes were seized from their possession. MO1 series are seized from the first accused and MO2 is seized from the second accused. The evidence of PW9 and PW10 coupled with Ext.P1 seizure mahazar, it is clear that, MO1 and MO2 are seized from the accused numbers 1 and 2. Simply because, there is no corroboration to the official witnesses, there is nothing to disbelieve their evidence. No enmity is alleged against PW9 and PW10 to implicate the accused in this case. Exhibit P1 is a contemporaneous document in which the signature is admitted by PW1 and PW2. PW9 and PW10 seized MO1 and MO2 based on Ext.P1 which is a contemporaneous document. Even though, there is no independent corroboration to the evidence of PW9 and PW10; there is nothing to disbelieve the evidence of PW9 and PW10 in the light of Ext.P1 seizure mahazar, which is a contemporaneous document. Therefore, I feel that there is nothing to interfere with the findings of
CRL.APPEAL NO.1758 OF 2004 & 14
the trial court that the evidence of PW9 and PW10 can be believed. The trial court rightly found that, no offence under Section 489-B is made out in this case. The trial court convicted the accused under Section 489-C IPC. In the light of the facts and circumstances of the case, I think, there is nothing to interfere with the conviction of the accused under Section 489-C IPC. Therefore, the conviction of the accused under Section 489-C is confirmed.
13. When this appeal came up for consideration on
08.06.2020, the appeal was argued in part. The learned Public Prosecutor was directed to file a report on whether the appellants in these appeals involved in any other criminal case. The Detective Inspector, Crime Branch, Ernakulam, reported that the appellants in these case are not involved in any other case. Report dated 11.06.2020 of the Detective Inspector-IV, Crime Branch, Ernakulam, is extracted hereunder: “Report submitted by the Detective
CRL.APPEAL NO.1758 OF 2004 & 15
Inspector, Crime Branch, Ernakulam as directed by the Honourable High Court. It is humbly submitted that the investigation of the crime in the above Criminal Appeals filed by the appellants was investigated by the Detective Inspector, CBCID (CIFS), Ernakulam and submitted final report before the jurisdictional Court. After completion of trial, accused therein were convicted. Aggrieved by the
judgment of the trial Court the accused preferred
Criminal Appeals 1758/2004 and 1857/2004 before the Honourable High Court and the same are pending. I, Baiju Poulose M., Detective Inspector, Crime Branch, Ernakulam was directed to submit the antecedents of the accused/appellants (1) Radhakrishnan, S/o. Vasudevan, residing in the house of Thaikkattuseril Madathil Kuttan, Ollur,
(2) Suhas, S/o. Rajan, Surjith Bhavan,
Kanjiramattom desom, Amballoor Panchayat, Ernakulam, subsequently to the date of occurrence of the crime dated 23.10.2001. I humbly submit that the enquiries made at District Crime Records Bureaus of the native places of the accused, viz. Trissur City, Trissur Rural, Cochin City and Ernakulam Rural reveals that no Crime has been registered against them after the registration of the above crime. The
CRL.APPEAL NO.1758 OF 2004 & 16 report from State Crime Records Bureau, Thiruvananthapuram also shows the same. Sd/- Baiju Poulose M Detective Inspector-IV 11.06.2010 Crime Branch Ernakulam “
14. The incident, in this case, happened on
26.02.2001. Now, 19 years elapsed after the incident. The appellants, in this case, are not involved in any other case after the incident. As far as the offence under Section 489-C is concerned, the imprisonment is not mandatory. Section 489-C IPC prescribes punishment with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Therefore, it is clear that, the sentence of imprisonment is not mandatory. Compared to Section 489-B IPC, Section 489-C IPC is a lesser offence. In this case, in page 2 of the judgment of the court below, it is stated that, the accused in this case underwent pre-trial detention from 26.02.2001 to 20.03.2001, I think, the above period along with a sentence of fine will be sufficient in
CRL.APPEAL NO.1758 OF 2004 & 17 the facts and circumstances of the case. Hence;
(i) These Crl.Appeals are allowed in part;
(ii) The conviction imposed on the appellants/accused under Section 489-C is confirmed;
(iii) The sentence imposed under Section 489-C
IPC is set aside and the appellants/accused are sentenced to undergo simple imprisonment for a period of 20 days and to pay a fine of Rs.75,000/- (Rupees Seventyfive thousand only) each. In default of payment of fine, the appellants/accused are directed to undergo simple imprisonment for a period of two years.
(iv) Set off under Section 428 Cr.PC. is allowed. With these observations, these Crl.Appeals are allowed in part. Sd/- P.V.KUNHIKRISHNAN pkk JUDGE