N. Nagarajan v. State of Tamil Nadu — 1995 DIGILAW 569 (MAD)

Judgment :- The unsuccessful petitioner in Crl. Appeal No. 1/88 before the learned Additional Sessions Judge, North Arcot at Vellore, aggrieved at his judgment in the above case dated 12-12-89 confirming the conviction and sentence passed by the Chief Judicial Magistrate, Krishnagiri in C.C. No. 145 of 1985 dated 9-2-1987 convicting revision petitioner who is the fourth accused for the offences under sections 409 read with 120(b), 409 and 477-A I.P.C. and consequently sentenced to undergo rigorous imprisonment for a period of three months on the first count, rigorous imprisonment for a period of two years with a fine of Rs. 500/- and in default to suffer rigorous imprisonment for a period of three months more on the second count and on the third count to undergo rigorous imprisonment for a period of one year, but all the sentences to run concurrently, which quantum of sentence was modified by the learned appellant Judge by setting aside the conviction and sentence for the offence under Section 409 read with 120 (b) I.P.C. but however, for the offences under sections 409 and 477-A I.P.C. he has modified the quantum of sentence of two years period as one for the period already undergone confirming the fine amount of Rs. 500/- under Section 409 I.P.C. but however, imposed a fine of Rs. 300/- and in default to undergo rigorous imprisonment for a period of three months under Section 477-A I.P.C 2. PW-1 is the District Supply Officer, Dharampuri and PW-2 is the District Revenue Officer and Additional District Collector. Both inspected the godown of Civil Supplies Corporation at Krishnagiri on 19-12-1981, on information at about 7-45 p.m. The first accused was the superintendent of the said godown. They had inspected Ex. P.1 the delivery order, Exs. P.2 to P. 5 the carbon copies of the said delivery order, Ex. P.6 the issue memo, Exs. P.7 to P.10 its copies kept in the godown, along with Ex. P.11 the delivery order with the its copies Ex. P.12 to P.15 and issue memo and its copies Exs. P.16 to P. 20. Having found two sets of delivery orders and memos with its explanation, they have verified the register Ex. P.25 and taken note of the entries relating to the distribution of the stocks as on 19-12-1981. However, they found that there was no entry with regard to the distribution of stock on 19-12-81, in Ex. P.16 to P. 20. Having found two sets of delivery orders and memos with its explanation, they have verified the register Ex. P.25 and taken note of the entries relating to the distribution of the stocks as on 19-12-1981. However, they found that there was no entry with regard to the distribution of stock on 19-12-81, in Ex. P. 25. During the said sojourn they found 9 tonnes of rice sent by Krishnagiri Co-operative Society in the Godown only in the name of the draft. They had visited the Krishnagiri Co-operative Society which was under the management and control of the fourth accused the revision petitioner herein 3. When both the witnesses inspected the registers and records and accounts of the Krishnagiri Co-operative Sales Society and perused Ex. P. 29 and found there was an entry for receipt of 9 tonnes of rice dated 19-12-1981, but however, distributed 7 tonnes of boiled rice and a quantum of two tonnes of rice was balance standing as stock. It has been stated that they found that the quantum of 7000 kilos of rice has been distributed to Kakkanpuram Co-operative Society and despatch was ascertained from the verification made in Ex. P. 29 the stock register of the Krishnagiri Co-operative Sales Society and it was found that 2000 kilos of balance rice was not available 4. On recording the voluntary statement given by the revision petitioner herein in the presence of PW-2, PW-1 has reduced into writing which has been marked as Ex. P. 39, in which the revision petitioner is stated to have admitted the entries made in Krishnagiri Co-operative Sales Society Stock register and that the corresponding entries found in the Kakkanpuram Co-operative Society's records and that the missking quantum of the rice has been sold by him to one Sakthi for higher monetary benefit and thus he has admitted his overt act. Both the whitnesses have also found that the ten accused have conspired among themselves between the period covering from 17-12-81 and 19-12-81 and made false accounts and entries in the relevant registers and records of the Krishnagiri Co-operative Sales Society and whereupon misappropriated 9 tonm'es of rice above referred, by examining several witnesses. Both the whitnesses have also found that the ten accused have conspired among themselves between the period covering from 17-12-81 and 19-12-81 and made false accounts and entries in the relevant registers and records of the Krishnagiri Co-operative Sales Society and whereupon misappropriated 9 tonm'es of rice above referred, by examining several witnesses. Therefore, PW-1 gave a complaint to PW-7 the Inspector of Police, Krishnagiri on 20-12-81 at about 6-45 p.m. which was registered by PW-7 in his police station Crime No. 718 of 1981 against all the ten accused for the offences under Sections 409 read with 120(b), 409, 477 and 109 I.P.C. on various counts in accordance with the offences alleged 5. The Learned Chief Judicial Magistrate, Krishnagiri after recording the oral evidence of seven witnesses PWs. 1 to 7 and the documentary evidence covered under Exs. P. 1 to P. 3 and six documents filed on behalf of the accused Exs. D. 1 to D. 6 and on consideration of the entire materials placed before him found the accused 1, 4, 6, 9 and 10 guilty under Section 409 read with 120(b) I.P.C. and accordingly convicted on the first count to undergo rigorous imprisonment for a period of three months, on the second count against A. 1 and A. 4 to undergo rigorous imprisonment for a period of two years with fine of Rs. 500/- and in default to suffer rigorous imprisonment for a period of three more months and on the third count against A. 1 and A. 4 to undergo rigorous imprisonment for a period of one year, but all the sentences to run concurrently. While delivering the judgment, the trial Court found the accused 2, 3, 5, 7 and 8 not guilty under any of the charges framed and according acquitted them of all the charges 6. The first accused though was found guilty and convicted, he has not preferred any appeal. However, rest of the accused viz. accused 4, 6, 9 and 10 preferred Appeal Nos. 1, 75, 76 and 77 of 1988 respectively challenging the judgment of conviction and sentence rendered by the trial Judge. The learned Additional Sessions Judge, North Arcot at Vellore, on the re-appraisal of the entire evidence and the materials placed before him and the judgment of the trial Court, allowed Appeal Nos. 1, 75, 76 and 77 of 1988 respectively challenging the judgment of conviction and sentence rendered by the trial Judge. The learned Additional Sessions Judge, North Arcot at Vellore, on the re-appraisal of the entire evidence and the materials placed before him and the judgment of the trial Court, allowed Appeal Nos. 75, 76 and 77 of 1988 and thus set the other accused at liberty, but however, confirmed the finding of the trial Court in regard to the revision petitioner herein with the modification of sentence into one of fine as above referred. Aggrieved this, challenging the propriety and legality of the findings given by the learned appellate Judge, the fourth accused alone herein has canvassed this present revision 7. I have heard the Bar for and on behalf of the revision petitioner as well as the learned Government Advocate on behalf of the respondent 8. Mr. Ravindran, learned senior counsel while challenging the impugned judgment of the lower appellate Judge has raised three contentions which go to the root of the controversy viz., the very edifice of the prosecution case, that the very findings of the lower appellate Judge given in para 6 of its judgment was mainly based upon the evidence of P.W. 1 and 2 on the one hand and Ex. P. 19 on the other hand coupled with the evidence of P.W. 7. Learned senior counsel would contend that in so far as Ex. P. 39, the so called confession statement which the fouth accused is said to have volunteered is concerned, it was recorded by P.W. 1, the District Supply Officer, the person in authority in the presence of P.W. 2 the Additional Collector of Dharmapuri District, and the Revenue Officer. Therefore, the learned senior counsel contended that Ex. P. 39 cannot be deemed to be a confession statement given by the fourth accused voluntarily without any fear or under threat and coercion. The second contention which he has raised was that the stock register of the Krishnagiri Co-operative Sales Society Ex. Therefore, the learned senior counsel contended that Ex. P. 39 cannot be deemed to be a confession statement given by the fourth accused voluntarily without any fear or under threat and coercion. The second contention which he has raised was that the stock register of the Krishnagiri Co-operative Sales Society Ex. P. 29 though was seized and mainly relied on, the fact remains that the relevant and various entries found therein have not been proved by the prosecution with reference to the maker or the author of the said entrires, and that for the said reason it is not known as to who was the person incharge of the maintenance of the said stock register, or who made the said entrires pertaining to the case transaction and that in the absence of the same, it is quite unsafe for the courts to rely upon such information to prove the documents and that thirdly all the other accused in this case who were instrumental in one way or the other for the various reasonings and findings of the court below were acquitted, and that therefore there was a serious and inherent doubt which cuts the very root of the prosecution case 9. Controverting the said contentions Mr. A. N. Rajan, learned Government Advocate took me through the very contents of Ex. P. 39 and the evidence of P.W. 1 and by so doing, he argued that Ex. P. 39 was the voluntary confession statement which clinchingly demonstrates the overt act done by the fourth accused and the said aspect has been corroborated by P.Ws. 2 and 7 and no error has been committed by both the courts below in recording the finding of guilt and accordingly recorded the guilt committed by this accused. Learned Govt. Advocate would also point out the evidence of P.W. 1 that he has verified Ex. P. 29 stock register of the Krishnagiri Co-operative Sales Society. With regard to the inducement to the revision petitioner/4th accused in giving statement, it was the contention made on behalf of the respondent State that P.Ws. 1 and 2 were not the persons in authority but the statement was reduced by P.W. 1 in writing to the dictation and narration of the fourth accused and that, therefore, Section 25 of the Evidence Act will not come to the rescue of the revision petitioner 10. 1 and 2 were not the persons in authority but the statement was reduced by P.W. 1 in writing to the dictation and narration of the fourth accused and that, therefore, Section 25 of the Evidence Act will not come to the rescue of the revision petitioner 10. In the light of the rival contentions above referred, I have gone through the judgments rendered by both the courts below in extenso and the legal evidence both oral and documentary recorded in this case. The evidence of P.W. 7, the Investigating Officer during his cross-examination which assumes every importance and significance in this case is to the extent that he was present all through along with P.Ws. 1 and 2 when the fourth accused gave a statement under Ex. P. 39. It is quite probable and acceptable that his version must be true for the simple reason that a person in authority viz., higher officials of the district administration viz., the District Supply Officer and the Additional District Collector and the District Revenue Officer were on duty in the godown under their jurisdiction, for verification of the pilferage being done. On information, it is quite but natural to accept the Subordinate Police Officers to accompany them or present before their actual inspection. This circumstance would probabilise the evidence of P.W. 7, that he was present during the recording of the statement by the revision petitioner along with P.Ws. 1 and 2. It is evidently noticed that this Ex.P. 39 was recorded in the morning of 20-12-1981., more significantly, prior to the registration of the complaint given in this case as a FIR when the complaint Ex.P. 1 was registered in Krishnagiri Town Police Station. But however, it is noted that the presence of P.W. 7 has not been referred to therein for the obvious reason. This aspect of the case though has been challenged by the learned senior counsel has not at all been met with by and no behalf of the State. But however, it is noted that the presence of P.W. 7 has not been referred to therein for the obvious reason. This aspect of the case though has been challenged by the learned senior counsel has not at all been met with by and no behalf of the State. However, nevertheless it has become relevant for me to quote Section 24 of the Indian Evidence Act "Confession caused by inducement, threat or promise, when irrelevant in criminal proceedings; - A confession made by an acused person is irrelevant in a criminal proceeding, if the making of the confession, appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing the by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him." * The above section of law is very clear that if the court finds that any confession given by a person accused of an offence was the resultant position of a possible inducement, threat or promise having reference to the alleged offence, then court has to presume that confession statement may become irrelevant, to be used against him in the criminal proceeding. In a similar way, it can be taken note of, Section 25 also, which deals with the confession statement given to a Police Officer or in his presence. The combined effect of Sections 24 and 25 proceeds to postulate the fact that if any person claims to have given any statement to a person in authority or his superiors in the presence of Police Officers, may in all the limbs, come within the category of inducement, threat and coercion in the context that the said confession has been mde by the accused after the inspection. P.W. 7 in this case, on par with the above ratio, has candidly admitted that he was present in the morning of 20-7-81 when P.W. 1 reduced the same into writing in the presence of P.W. 2 at Krishnagiri Co-operative Sales Society. P.Ws. P.W. 7 in this case, on par with the above ratio, has candidly admitted that he was present in the morning of 20-7-81 when P.W. 1 reduced the same into writing in the presence of P.W. 2 at Krishnagiri Co-operative Sales Society. P.Ws. 1 and 2 being the persons in authority, on supervision and surprise inspection, found the accused and recorded his statement in the presence of a Police Officer which has been relied on concurrently by the both the courts below, in my considered opinion, directly attracts all the limbs of sections 24 and 25 of the Evidence Act and that therefore Ex.P. 39 is tainted with admissibility question. It is strange that the learned trial Magistrate as well as the lower Appellate Judge has overlooked this aspect and has not considered even the semblance of the said legal position 11. Then coming to the next point, evidently, none has been examined on behalf of the prosecution pertaining to the relevant entries made between the period of offence alleged in Ex.P. 29 the stock register of the society. What has been done in this case is, Ex.P. 29 has been seized and placed before the trial court and marked by the prosecution. To speck out each of the entry pertaining to the stock verification and disbursement or the distribution with all details, none has been cited by the prosecution and in this regard, there is no proper proof and relevancy placed before the trial Court. It is not known as to who made the relevant entries in Ex.P. 29, on what date and under what circumstances, and that it is also not known who is the author of the entries and that in this regard Section 34 of the Evidence Act comes in all the limbs in this case for the reason none of the entries has been spoken to, nor any corroboration forthcoming by and on behalf of the prosecution. Mere production of a document and the statement of evidence given by the two superior heads of the district administration will not be enough and adequate in my considered view to mulct, to attribute a person with a criminal liability. Therefore, in this regard I have to accept that there is every force in the contention raised by the learned senior counsel 12. Therefore, in this regard I have to accept that there is every force in the contention raised by the learned senior counsel 12. I do not propose to lay any weight on the third ground that has been emphasised for the reason that simply because the other co-accused have been acquitted by the court below for want of legal evidence or for other reasons, that does not mean that a presumption will arise that the convicted accused is also to be on the same category. What is expected to be available by a court of law is the legal evidence and the legal evidence alone to establish the guilt of the accused person beyond all reasonable doubt and if that is available., he should be mulcted with criminal liability. If not available for any serious doubt then that should be ascribed to and in favour of the accused by way of acquitting him thereupon. Since both the courts below have mainly relied on the confession statement Ex.P. 39 and the stock register Ex.P. 29 and the evidence of P.Ws. 1, 2 and 7 as the corroborative portion of the entire case proving against the accused, for all the reasons given above, I am constrained to hold that the impugned judgment delivered by the lower appellate Judge is vitiated with every illegality and impropriety when the above said aspect has not been considered by the courts below. Therefore, the impugned court is liable to be set aside for its want of legality and propriety. Though the sentence has been coverted into one of fine by the lower appellate court against the revision petitioner, for the reasoning aforementioned, I have to allow this revision by setting aside the conviction and sentence recorded against the revision petitioner 13. In the result, the revision succeeds. Accordingly, the judgment of conviction and sentence rendered by the learned Additional Sessions Judge, North Arcot at Vellore in Crl. Appeal No. 1 of 1988 D/- 12-12-1989 is hereby set aside. The revision petitioner is set free of all charges. The fine amount, if any, paid by him., is hereby ordered to be refunded to the revision petitioner immediately.