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2000 DIGILAW 14 (KER)

Aravindakshan Nair Alias Rajan v. State of Kerala

2000-01-06

M.R.HARIHARAN NAIR

body2000
Judgment :- The petitioner is the accused in C.C. 1049 of 1995 of the Chief Judicial Magistrate's Court, Ernakulam. The challenge is with regard to the conviction entered by the said Court as confirmed by the IVth Additional Sessions Judge, Ernakulam in Cri. A. 268 of 1998. The learned counsel for the revision-petitioner submits that the accused is still suffering the sentence and that the impugned orders had been passed without out proper appreciation of the facts and legal position. What is be decided is the correctness, legality and propriety of the impugned orders as also the propriety of the sentence imposed by the appellate Court namely rigorous imprisonment for two years and fine of Rs. 3, 000/- (in default, rigorous imprisonment for six months) for the offence under Section 420 of the Indian Penal Code. 2. The learned counsel for the petitioner highlighted the fact that the investigation in the case is defective in so far as no attempt was made by the Investigating Officer to verify the records maintained by the complainant with regard to the operation of his vehicle or with regard to the correctness of the version of the complainant that the accused borrowed money as also the gold chain of the complainant for the purpose of booking the air ticket. Yet another argument was that he appellate Court erred in relying on the version given by the accused when questioned about the sentence as a circumstance for finding him guilty of the offence. PW-1, it is stated, unbelievable not only because his evidence is full of embellishments but also because the case is not registered based on the complaint allegedly given by him on the day next after the occurrence. It is also argued that the evidence with regard to the recovery of the gold chain is inadmissible under Section 27 of the Indian Evidence Act. Delay in registering the case is pointed out to be yet another ground for acquitting the accused. The learned Public Prosecutor, who was heard, submitted that here is a case where the registration of the case itself was based on a confession statement of the accused made while in custody in connection with another case and that the conviction and sentence are based on sufficient material. The learned Public Prosecutor, who was heard, submitted that here is a case where the registration of the case itself was based on a confession statement of the accused made while in custody in connection with another case and that the conviction and sentence are based on sufficient material. The submission made by the accused to the Court, when questioned about the sentence, that he might be shown mercy and that he shall not repeat the offence of that nature is also highlighted by the learned Public Prosecutor. 3. It is true that PW-1 stated that he had complained about the occurrence in question to the police on the day after the occurrence and no case is actually seen registered. Whatever he the reasons therefore, the registration of the case which led to the conviction in question was not based on any such complaint, but suo motu based on an alleged confession made by the accused while in custody in connection with Crime No. 454 (sic) of 1994 of the Pala Police Station. It is because of this, that there has not been full-fledged investigation in this case and no attempt was made to seize the goods vehicle record relating to the tax driven by the complainant or with regard to the correctness of the booking of the air ticket for which purpose, the accused allegedly borrowed money and gold chain from the complainant. As regard the embellishments relied on by the learned counsel for the revision-petitioner, it is seen that the case diary statements of the complainant were not put to him during cross-examination. Merely based on a comparison of the case diary statement and the version in the box, PW-1 cannot be branded as an unbelievable witness. In order that the alleged embellishments deserve consideration, it should have been specifically put to the witness and contradictions/omissions elicited. In the absence of any such attempt, the accused cannot be heard to contend at this revisional stage that his version is unbelievable. 4. The contention of the accused that the ingredients of Section 420 are not attracted, had also no substance. The ingredients concerned are dishonest inducement leading to deception and delivery of properly. In the absence of any such attempt, the accused cannot be heard to contend at this revisional stage that his version is unbelievable. 4. The contention of the accused that the ingredients of Section 420 are not attracted, had also no substance. The ingredients concerned are dishonest inducement leading to deception and delivery of properly. In the instant case, what is evidence from the revision of PW-1 is that after using his taxi for some time and when it was stopped at the broad way, the accused got down, went somewhere stating that he would be back very soon and when he re-appeared he told PW-1 that he had to manage an air ticket for Delhi urgently, that he was in deficiency of funds for the purpose; that there was not enough time for him to go to his house and fetch money and that he urgently wanted some money from the complainant. The complainant then told him that he had only a sum of Rs. 1, 500/- and the accused then told him that that amount would not be sufficient and that if the gold chain of the complainant was also handed over he would raise the required money by pledge thereof and the ornament would be redeemed and returned in a week's time the reason given by PW-1 as to inducement of confidence leading to parting of the gold chain and money was the fact that the accused had represented that he was an Engineer in the P.W.D. with his residence at Perumbavoor and that he had taken over charge at Mannathoor very recently. Subsequent events would show that the accused had no intention at all to buy an air ticket or to return the ornament or the money and thus dishonest intention is very evident. What is clear from the evidence of PW-1 is that it was based on the dishonest statement and inducement that he delivered a sum of Rs. 1, 500/- as also the gold chain to the accused. Thus, the ingredients of the offence under Section 420 are evident from the evidence of PW-1. 5. Of course there was inordinate delay in the registration of the case. The reason therefore is very obvious from the F.I.R. itself. 1, 500/- as also the gold chain to the accused. Thus, the ingredients of the offence under Section 420 are evident from the evidence of PW-1. 5. Of course there was inordinate delay in the registration of the case. The reason therefore is very obvious from the F.I.R. itself. Probably because the police found it difficult to believe the version of the complainant earlier that he had handed over a gold chain merely based on representations of a stranger, no case was registered in time. It was actually registered on 4-10-1994 i.e., after seven months from the actual date of occurrence based on the confession statement allegedly given by the accused when arrested in connection with Crime No. 354 of 1994 of the Pala Police Station. Based on the said statement, the accused himself led the Investigating Officer to a jewellery shop at Thrissur and it was therefrom that the gold chain in question, which was duly identified by PW. 1 during trial, was recovered. Learned counsel for the revision petitioner argued, based on the decision in Joseph v. State, 1997 1 Ker LJ 764 : (1997 Cri LJ 4289) that a statement as in Ext. P. 1(a) cannot be admissible under Section 27 of the Indian Evidence Act. In the statement, which was considered by the learned Judge, the accused had also stated that if taken to a particular place, the accused would show the man to whom he had given a necklace. It was found that he recovery is inadmissible under Section 27 of the Evidence Act. 6. In the instant case, the information divulged by the accused was that he had given the chain to a shop owner hear Puthenpally at Thrissur and that if taken there he would show the shop as also the person to whom the chain was given and accordingly, the accused himself led the investigating officer to building No. 25/1906 and while was there, he pointed out the shop keeper as the person to whom the chain had been handed over. The shop keeper, in turn, admitted the occurrence and thereupon surrendered the chain in question. It has to be remembered that but for the information divulged by the accused, there was no possibility. The shop keeper, in turn, admitted the occurrence and thereupon surrendered the chain in question. It has to be remembered that but for the information divulged by the accused, there was no possibility. It was the specific information which had not been known to any other person divulged by the accused, that led to the recovery and accordingly to me such recovery is admissible under Section 27 of the Indian Evidence Act. Reference in this regard may be made to the decision of a Division Bench of this Court in Vasudevan Pillai v. State of Kerala, IIR 1968 Kerela 303 : (1968 Cri LJ 1362) as also to the decision of the Hon'ble Supreme Court in Prasad Ramakant Khade v. State of Maharashtra, 1999 SCC (Cri) LJ 1487 : (2000 Cri LJ 55). In the latter case a recovery as held in the present case has been upheld as valid under Section 27 of the Evidence Act by the Hon'ble Supreme Court the recovery of M.O. 1 based on Ext. P. 1(a) confessional statement, according to me is admissible in evidence against the accused herein had provides sufficient link between the accused and the occurrence. In view of the decision of the Division Bench and of the Supreme Court cited above I find it difficult to follow, Joseph case 1997 1 Ker LJ 764 : (1997 Cri LJ 4289) as laying down the correct law. 7. In Ext. P. 3 F.I.R., the time of occurrence is said to be 7.30 p.m. whereas the evidence of PW. 1 is to the effect that it took place at 12 Noon. In this regard, it is to be remembered that the version in Ext. P. 1 is not one given by the complainant - PW. 1, but the version contained in the confession statement of the accused. The discrepancy in time, in the circumstances, does not at all throw any doubt with regard to the prosecution case. 8. The learned Sessions Judge has mentioned above the statement of the accused made during questioning that he might be shown mercy and that he shall not repeat the offence as a ground giving credence to the prosecution case. The discrepancy in time, in the circumstances, does not at all throw any doubt with regard to the prosecution case. 8. The learned Sessions Judge has mentioned above the statement of the accused made during questioning that he might be shown mercy and that he shall not repeat the offence as a ground giving credence to the prosecution case. It is true that the said version is not given at the time when the accused was question on the basis of the prosecution evidence under Section 313 of the Code of Criminal Procedure, but only when he was asked about the sentence after the conviction. There is some merit in the contention of the counsel for petitioner that the said aspect cannot be taken as a relevant factor while arriving at the aspect of the guilt of the accused. Even so, the other evidence available in the case and the aspect of recovery of the gold chain in question give sufficient credence to the prosecution case with regard to the commission of the offence under Section 420 of the Indian Penal Code. I am, therefore, of the view that this is not a fit case where the conviction entered by the two Courts concurrently can be interfered with in exercise of the revisional jurisdiction of this Court. 9. As regards the sentence, the appellate Court has already shown some leniency and reduced the substantive term of rigorous imprisonment from three years to two years. The fine has also been reduced from Rs. 5, 000/- to Rs. 3, 000/- with corresponding reduction in the default sentence from one year to six months. I do not think that any further leniency is due to the revision petitioner. The revision petition is without merit. It is accordingly dismissed.Petition dismissed.