Mytheen Kunju v. State — 1953 DIGILAW 183 (KER)

Judgment :- 1. Both of these appeal arise out of the decision in Sessions Case No. 45 of 1952 on the file of the Sessions Court at Trivandrum. The 1st accused in the case is the appellant in Criminal Appeal No. 48 of 1953. The 2nd accused is the respondent in Criminal Appeal 78 of 1953. 2. The charge against both the accused in Sessions Case No. 45 of 1952 was for offences punishable under Ss. 459, 380 and 463 of the Travancore Penal Code (corresponding to Ss. 454, 380 and 461 of the Indian Penal Code). The prosecution case is that on the night of 24.9.1123 these accusee forcibly broke open the outer door of the piece-goods shop of PW.1 at Pazhavangady within the limits of the Trivandrum City and entered the shop and broke open a box and committed theft of currency notes and silver and nickel coins, totaling in value to Rs. 4863. A gold ring with the letter 'K' inscribed on it and another silver zone kept in the box have also been stolen by these accused. On the next morning when PW.1 came to the shop as usual, he noticed that the locks of his shop had been broken and that a burglary had been committed. On the basis of the information given by him the Police came to the spot and prepared the Mahazar Ext. B describing the condition of the shop at that time and registered a case and proceeded with the investigation. Such investigation led to the arrest of the 1st accused on 11.11.1123 from his residence at Pettah, Trivandrum, and on the information obtained from him a search was conducted at his residence and some of the stolen articles were recovered from that place as described in the Mahazar, Ext. J. prepared at the spot. This Mahazar is signed by PW.18, the investigating Officer, and also by the 1st accused and by other independent witnesses. The articles thus recovered from the residence of the 1st accused have been identified and marked as Material Objects Nos. 4 to 11. M.O. No. 7 consists of hundred-rupees currency notes, 11 in number. M.O.4 is the gold ring with the letter 'K' inscribed on it. This ring has been identified by PW.1 as the ring which he had kept in the box in his shop at Pazhavangady. The other material objects recovered as per Ext. 4 to 11. M.O. No. 7 consists of hundred-rupees currency notes, 11 in number. M.O.4 is the gold ring with the letter 'K' inscribed on it. This ring has been identified by PW.1 as the ring which he had kept in the box in his shop at Pazhavangady. The other material objects recovered as per Ext. J Mahazar are not of much significance in this case. According to the prosecution the 1st accused had admitted that with the money obtained on theft from the shop of PW.1 a restaurant was being run by both the accused jointly. On the strength of that information the police conducted a search of the restaurant stated to have been conducted by 2nd accused in the vicinity of the cinema theatre at Pettah, and recovered a series of articles which have been marked as M.O. Nos. 7 to 67 in the case. This recovery was made on 11.11.1123 and the Mahazar prepared in connection with the same is Ext. C. After completing the investigation, both the accused were charged with having committed the offences already referred to. At the close of the trial the learned Sessions Judge agreeing with the unanimous verdict of the assessors found that so far as the 1st accused is concerned the prosecution has succeeded in establishing the offences charged against him. By this time the Indian Penal Code was made applicable to this State also and accordingly the 1st accused was found guilty of the offences punishable under Ss. 454, 380 and 461 of that Code. Since the 1st accused has had to his credit previous convictions for similar offences, additional charge under S. 75 of the Indian Penal Code was also framed against him and such previous convictions were duly proved. Thus the trial against him ended in his being convicted under Ss. 454, 380 and 461 of the Indian Penal Code read with S. 75 of the same Code and sentenced to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs. 200/- and in default of payment of fine, to undergo rigorous imprisonment for a further period of 2 months. The Sessions Judge found that the prosecution has not succeeded in proving the charge against the second accused who was accordingly acquitted. It is against such acquittal that the State has preferred Criminal Appeal No. 78 of 1953. 200/- and in default of payment of fine, to undergo rigorous imprisonment for a further period of 2 months. The Sessions Judge found that the prosecution has not succeeded in proving the charge against the second accused who was accordingly acquitted. It is against such acquittal that the State has preferred Criminal Appeal No. 78 of 1953. The 1st accused has preferred Criminal Appeal No. 48 of 1953 against the conviction and sentence passed against him. 3. Criminal Appeal No. 48 of 1953 may first be considered. This appeal was argued by the convicted prisoner himself. He has not chosen to challenge the correctness of the Mahazar Ext. J. or of the recoveries made thereunder. Among the valuables thus recovered from his residence there have been 11 currency notes of the hundred rupee denomination. Even in this court he has not put forward any claim that these currency notes belonged to him. On the other hand the position taken up by him is that he was working as an employee in the restaurant run by the 2nd accused and that these notes had been entrusted to him by the 2nd accused for being deposited to the latter's credit in the bank where the 2nd accused had an account in his name. Excepting such a bare assertion of the 1st accused there is no evidence at all in support of it. The 2nd accused does not claim these currency notes as belonging to him. His position is that he has nothing to do with the 1st accused. The story given by the 1st accused is highly improbable on the face of it and it has only to be rejected as having no basis except in the imagination of the 1st accused. At the trial of the case the 1st accused did not choose to cross examine any of the prosecution witnesses. He did not call any witness on his side to prove that he was an employee under the 2nd accused and that the 2nd accused used to entrust him with such large amounts. When his statement was recorded the Sessions Judge particularly drew his attention to the recovery of the aforesaid currency notes from his residence as per Ext. J. Mahazar and he was asked if he had any explanation to offer in respect of the same. When his statement was recorded the Sessions Judge particularly drew his attention to the recovery of the aforesaid currency notes from his residence as per Ext. J. Mahazar and he was asked if he had any explanation to offer in respect of the same. It is significant to note that the version given by the 1st accused in this Court was not given by him before the Sessions Court for explaining away the recovery of these currency notes from his residence. Then there is the recovery of the gold ring M.O. No. 4 with the letter 'K' inscribed, from the box found in the custody of this accused. He does not claim the ownership of this ring and has not been able to explain how this ring which has been identified by PW.1 as the ring which he had kept in his own box in his shop at Pazhavangady, was recovered from his house. The recovery of his ring from the custody of the 1st accused is by itself a conclusive circumstances sufficient to prove that the 1st accused was directly involved in the theft committed in the shop of PW.1 on the night of 24.9.1123. There is the further fact that when the charge was read over to the 1st accused in the Committing court, he pleaded guilty to the charge. This is evidenced by Ext. O the statement given by him before the committing Magistrate. The conviction of the 1st accused for the offences charged against him is based on the above-mentioned outstanding and clinching circumstances proved in the case and also on his own admission in the statement Ext. O that he has committed these offences. It follows therefore that there is no merit or substance in his appeal. The fact that he had previous convictions to his credit for similar offences, he also been clearly proved by the production of Ex. Q Convict Register maintained by the Jailer, PW. 21. Here again the 1st accused has unequivocally admitted in the statement given in the Sessions Court that he has had the previous convictions and sentences specified in the additional charge framed against him. Under these circumstances his conviction under sections 454,380 and 361 read with S. 75 of the Penal Code, has only to be confirmed. 21. Here again the 1st accused has unequivocally admitted in the statement given in the Sessions Court that he has had the previous convictions and sentences specified in the additional charge framed against him. Under these circumstances his conviction under sections 454,380 and 361 read with S. 75 of the Penal Code, has only to be confirmed. Since he has been proved to be a habitual burglar the sentence awarded to him by the Sessions Judge is also proper and it does not call for any interference. 4. Then there is the other appeal preferred by the State against the acquittal of the 2nd accused. The charge against him is identical with the charge against the 1st accused viz., that both of them conjointly broke open the shop of PW.1 and committed theft of currency notes and other valuable articles safely kept in a box inside the shop. The specific sections under which the 2nd accused also had been charged are Ss. 459,380 and 463 of the Travancore Penal Code. The main item of evidence relied on by the prosecution to prove the complicity of this accused in the alleged crime consists of the testimony of PW. 15 who is a dealer in ivory articles at Pazhavangady. His shop is close to the shop of PW. 1. The evidence of PW. 15 has been rejected by the learned Sessions Judge as totally unreliable. The learned Public Prosecutor urges that the reasons stated by the Sessions Judge for discarding the evidence of PW. 15 are not proper and acceptable. Unless this contention could be sustained on very substantial grounds, we have to be very cautious in forming an opinion different from that of the Sessions Judge on the question of the veracity of the witness. The version given by PW. 15 is that at about 1 O'clock on the night of 24.9.1123 when he stepped out of his shop for the purpose of passing urine, he noticed both the accused standing on the road in front of his shop under suspicious circumstances and that the answers given by the accused to his questions were unsatisfactory. In this cross examination he had to admit that ordinarily he would close his shop at 9.30 p.m. and go home. In this cross examination he had to admit that ordinarily he would close his shop at 9.30 p.m. and go home. To the question as to why he departed from the usual practice on 24.9.1123, the answer given was that he had some work to be attended to one that particular day. But when further questioned, he had to admit that he had no special orders to be urgently executed and that in fact there was nothing unusual to compel his being present in the shop till very late in the night. All the neighbouring shop had been closed and except for the space left for one plank the rest of the front portion of his shop had been closed. It is with aid of the light emanating from the small opening that was left that the witness is stated to have identified the two persons standing in front of his shop. The story appears to be artificial and improbable. It is extremely unlikely that the two persons who were out for committing theft would have so exposed themselves to the light coming out of the shop of this witness so as to be identified by him. Apart from this aspect of the matters, the conduct of PW.15 has been so extraordinary that it will be extremely unsafe to place any reliance on him. He admits that on the very next morning he knew of the theft committed from the shop of PW.1. If he had really seen the two accused on the night in question near the premises of the shop under suspicious circumstances, he would have been the first person to inform PW.1 and the police about that fact. But admittedly PW.15 kept the matter a close secret for nearly two months and until after a few days even after the arrest of the accused. Ext. IV is the charge-sheet filed in this case by the police on 26.11.1123. PW.18, the investigating officer, has stated that it was only on 22.11.1123 that PW.15 was questioned and information gathered from him that he met these accused in front of his shop on the night of 24.9.1123. Such being the highly suspicious and unsatisfactory nature of the evidence tendered by PW.15, we are in complete agreement with the learned Sessions Judge that the evidence of this witness has to be discarded as thoroughly unreliable. 5. Such being the highly suspicious and unsatisfactory nature of the evidence tendered by PW.15, we are in complete agreement with the learned Sessions Judge that the evidence of this witness has to be discarded as thoroughly unreliable. 5. The next question taken up by the learned Public Prosecutor is that even if there is no evidence to prove the complicity of the 2nd accused in the actual commission of the offence of theft, the evidence already on record is sufficient to sustain a conviction being entered against him under S. 411 of the Indian Penal Code for having dishonestly received and retained stolen articles with the knowledge that they were stolen property. As already stated, no charge was framed against this accused under S. 411. It is a fundamental rule of the Criminal Law as administered in this country that there should be a separate charge against the accused for every distinct offence alleged against him so that he may have notice of the charge which he has to meet and that the accused can be convicted only of the specific offences for which he has been charged. But this principle is subject to certain well recognised exceptions. These exceptions are provided for in Ss. 237 and 238 of the Code of Criminal Procedure. The three exceptions provided for in S. 238 are the following: "(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor, offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. (2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. (2A) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged." The present case does not come under any of these exceptions. (2A) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged." The present case does not come under any of these exceptions. On the other hand it is sought to be brought under the exception provided for in S. 237 which runs as follows: "If, in the case mentioned in S. 236, the accused is charged with one offence, add it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that Section, he may be convicted of the offence which he is shown to have committed, although he was not charged with it." It is obvious from the Section itself that it is not meant to be of general application so as to justify a conviction of the accused for an offence totally unconnected with and different from the offence for which he has been charged and tried. This section is controlled by S. 236 so that it can be invoked only in respect of cases coming under S. 236. S. 236 states: "If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some of the said offences". It is significant to note that the single act or series of acts alleged against the accused must be such as to make it doubtful as to the exact nature of the offences that may be made out on proof of those acts. In such a situation the conviction of the accused for an offence different from the offence with which he is charged will be justified under S. 237, provided the offence for which he was convicted is one which could have been charged against him under S. 236 and that the evidence on record has conclusively made out such offence. Even though there has been no specific charge for that particular offence it is of the utmost importance that all the necessary and relevant facts must have been averred and proved against the accused. Even though there has been no specific charge for that particular offence it is of the utmost importance that all the necessary and relevant facts must have been averred and proved against the accused. This principle has been emphasised in Meher Sheik v. Emperor (32 Criminal Law Journal 1931, P. 892). In that case it was ruled that: "S. 237, Criminal Procedure Code, applies only to cases which fall within the provision of S. 236 and S. 236 applies only to cases where, on the facts, proof of which is in the possession of the prosecution, it is clear beyond doubt, if the evidence be believed, that one or more of several offences, but doubtful in law which of them has been committed. When the facts themselves are in doubt the section does not apply". It was further laid down that: "The true test in such cases is whether the facts are such as to give the accused notice of the offence for which he is going to be convicted though he was not charged with it, so that he is not prejudiced by the mere absence of a specific charge". In Makkhan v. Emperor (AIR 1945 Allahabad 81) also the scope of the application of Ss. 236 and 237 of the Code of Criminal Procedure had come up for consideration and it was held that the facts are to be set out in the charge so that the accused may know what act or acts he is said to have done and the question only remains one of law as to what offence the act or acts constitute. 6. The decisions relied on by the learned Public Prosecutor do not lay down anything opposed to these principles. Begu v. Emperor (AIR 1925 Privy Council 130) is the first of these cases. In that case the accused were charged with murder punishable under S. 302. The case as put forward by the protection was that all the accused jointly assaulted the victim and caused his death and carried away the dead body to some hidden place. Begu v. Emperor (AIR 1925 Privy Council 130) is the first of these cases. In that case the accused were charged with murder punishable under S. 302. The case as put forward by the protection was that all the accused jointly assaulted the victim and caused his death and carried away the dead body to some hidden place. The finding of the trial judge was that as against three of the accused the prosecution did not definitely prove that they had taken part in the commission of the crime of murder, but that the evidence established the fact that they were also responsible for the removal of the dead body and causing its disappearance. The Privy Council ruled that the conviction of the accused for the offence under S.201 of the Indian Penal Code for causing the evidence of crime to disappear was justified under S. 237 of the Code of Criminal Procedure even though there was no formal charge under S. 201. In Kashmir Singh v. State of Madhya Pradesh (AIR 1952 Supreme Court 159) also it was found that the evidence on record was not sufficient to sustain a conviction under S. 302 of the Penal Code but that the evidence clearly made out the offence punishable under S. 201. Accordingly the accused was convicted of the offence under S. 201 even though he had not been formally charged under that section. A similar question was considered by this court also in Pyli Yacob v. The State (AIR 1953 Travancore-Cochin 466). In that case it was found that the charge under Ss. 394 ad 457 of the Penal Code was not made out by the prosecution evidence which, however, was held to be sufficient to sustain the conviction of the accused under S. 411 for retaining possession of the stolen property knowing them to be stolen property. On the strength of S. 237 of the Code of Criminal Procedure the accused was convicted under S. 411 even though there was no specific charge under that section. In all these three cases the facts necessary for making out the offence for which the accused was ultimately convicted had been definitely alleged and proved against him at the trial so that the accused had sufficient notice of the comprehensiveness of those averments which could legitimately bring within their scope the offence for which he was ultimately convicted. 7. In all these three cases the facts necessary for making out the offence for which the accused was ultimately convicted had been definitely alleged and proved against him at the trial so that the accused had sufficient notice of the comprehensiveness of those averments which could legitimately bring within their scope the offence for which he was ultimately convicted. 7. The evidence against the 2nd accused has to be examined in the light of the principles explained above to see if on such evidence his conviction under S. 411 of the Penal Code would be warranted by S. 237 of the Code of Criminal Procedure. Such evidence falls under two items. The first item consists of the recovery of M.O. Nos. 12 to 67 as per the Mahazar Ext. C, from the restaurant run by this accused. The second item of evidence consists of the testimony of prosecution witnesses Nos. 2 to 5 and 7 to 15. The recovery under Ext. C was made on 11.11.1123. Among the articles thus recovered M.O. Nos. 12,13 and 14 consists of currency notes, while M.O. Nos. 15 to 20 consists of silver, nickel and copper coins of different denominations. The other material objects mainly consist of vessels and articles of furniture which were in use in the restaurant. The prosecution has no case that these articles recovered from the restaurant run by the 2nd accused form part of the articles stolen from the shop of PW.1 on the night of 24.9.1123. Such a case was put forward only in respect of M.O.12 consisting of hundred-rupee notes, three in number. The recovery of these currency notes by itself cannot make out that these identical notes were among the notes which stolen from the shop of PW. 1. No attempt was also made to prove such identity, which, undoubtedly, would have been a difficult job. In the earlier statement given by PW.1 to the police he had stated that the hundred rupee notes stolen from his shop could be identified with reference to their numbers. According to him his mother-in-law had obtained those notes from one Lekshmana Sastry, a hundi merchant at Trivandrum, by way of consideration under a sale deed executed in his favour by her. PW.1 had obtained these notes from the mother-in-law and had kept them in his shop. According to him his mother-in-law had obtained those notes from one Lekshmana Sastry, a hundi merchant at Trivandrum, by way of consideration under a sale deed executed in his favour by her. PW.1 had obtained these notes from the mother-in-law and had kept them in his shop. According to him the said Lekshmana Sastry had noted down the numbers of these currency notes. However the prosecution has not chosen to examine Lekshmana Sastri and the explanation offered is that on investigation it was known that he had not noted down the numbers of the currency notes handed over to the mother-in-law of PW. 1. Thus the link connecting the articles recovered from the restaurant run by the 2nd accused with the money stolen from the shop of PW.1 is missing in the prosecution evidence. 8. The evidence of the witnesses examined on the prosecution side is not of much help in this direction. PW. 15 has been found to be unreliable. PW. 8 has been examined to show that the building in which the 2nd accused was conducting his restaurant was taken on rent by him on 30.10.1123. Ext. G is the rent deed executed by PW. 8 to this accused. PW. 2 has stated that these two accused had entrusted him with three hundred rupee currency notes on 9.11.1123 for the purpose of purchasing a she-buffalo. Subsequent to the arrest of the accused this witness produced those notes before the police and Ext. F is the Mahazar prepared in that connection. Those notes have been marked as M.O.6. PW. 3 to 5, 7,10 and 14 are merchants and they have been examined to prove that the 2nd accused had purchased provisions, vessels and other articles of furniture from them during the months of Edavam and Mithunam 1123. They have stated that the 1st accused was also in the company of the 2nd accused when those purchases were made. Some of these witnesses have also stated that even when small amounts had to be paid towards the price of the articles purchased these accused had tendered hundred rupee notes. PWs.11 and 12 have deposed that during these two months the two accused were seen changing hundred rupee notes. Some of these witnesses have also stated that even when small amounts had to be paid towards the price of the articles purchased these accused had tendered hundred rupee notes. PWs.11 and 12 have deposed that during these two months the two accused were seen changing hundred rupee notes. Even accepting the evidence of these witnesses at its face value, it is clear that such evidence does not go to establish that the investment made by the 2nd accused in his restaurant had come out of the money which the 1st accused had stolen from the shop of PW.1 or, in other words, that the 2nd accused had received and utilised the stolen articles. The fact that the 2nd accused associated the 1st accused also in the conduct of his business some time after the date of the theft committed by the 1st accused, is not sufficient in itself to show that the 2nd accused was in the know of the theft committed by the 1st accused. Even if the prosecution suggestion that the 2nd accused had derived financial help from the 1st accused is accepted as true, that will be necessarily lead to the inference that such help was rendered with the stolen money and that the 2nd accused was aware of the same. The evidence in the case does not rule out the possibility of other sources of income for the 2nd accused in the absence of any evidence for the prosecution to fix him also with the responsibility for the crime, he was not bound to explain the source from which he obtained the necessary funds for investment in his hotel business. The best that can be said in favour of the prosecution evidence is that it creates a suspicion that the 1st accused, who had come into possession of the money stolen from the shop of PW. 1, might have rendered financial help to the 2nd accused for running the restaurant. Such a suspicion alone, however strong it might be, will not be sufficient to warrant a conviction of the 2nd accused under S.411 of the Penal Code. The first essential element required by S. 411 is that the person accused of an offence under that Section must be proved to have received or retained stolen property. Such a suspicion alone, however strong it might be, will not be sufficient to warrant a conviction of the 2nd accused under S.411 of the Penal Code. The first essential element required by S. 411 is that the person accused of an offence under that Section must be proved to have received or retained stolen property. The next element required is that he received such stolen property knowing it to be stolen property or under circumstances justifying an inference that he had every reason to believe such article to be stolen property. The third element required is that he must have acted dishonestly in receiving and retaining such property. In the nature of the evidence in this case, it cannot be said that any of these elements has been clearly and conclusively brought home to the 2nd accused. There is also the significant fact that the charge framed against him was silent regarding averments in these directions. In these circumstances it will be unjustified and unwarranted to invoke the aid of S. 237 of the Code of Criminal Procedure and to enter a conviction against the 2nd accused under S. 411 of the Penal Code. The learned Sessions Judge's order acquitting the 2nd accused does not, therefore, call for any interference. 9. On other point alone remains for consideration. On behalf of the State it is contended that the Sessions Judge has gone wrong in directing M.O. No. 12 to be returned to the second accused. We think that this contention has to prevail. The 2nd accused has no claim that the 3 currency notes included in M.O.12 belong to him even though the Mahazar Ext. C refers to those notes as having been recovered from his restaurant. When PW.10 who made the recovery under Ext. C was cross-examined on behalf of the 2nd accused, the definite suggestion put forward was that these three notes really belonged to the 1st accused and were recovered from his residence. In view of such a definite stand taken by the 2nd accused, there is no justification for directing these notes to be returned to him. C was cross-examined on behalf of the 2nd accused, the definite suggestion put forward was that these three notes really belonged to the 1st accused and were recovered from his residence. In view of such a definite stand taken by the 2nd accused, there is no justification for directing these notes to be returned to him. His plea that these notes were also recovered from the 1st accused has only to be accepted and a direction made to return them also to PW.1 along with the other material objects directed to be returned to him as forming part of the properties stolen from his shop. It is so directed. 10. Subject to the direction made above, both these appeals are dismissed. Dismissed.