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2000 DIGILAW 710 (AP)

Mandagiri Keshava Rao v. State Of A. P.

2000-09-14

BILAL NAZKI

body2000
BILAL NAZKI, J. ( 1 ) IN Sessions Case No. 78/91, accused A1, A5, A6, A7, A8 and A10 were convicted by the learned Sessions Judge under Section 395, Indian Penal Code and they were sentenced to ten years imprisonment. They were also fined with Rs. 5,000. 00 each, in default they have to undergo two years simple imprisonment. A motor car No. APG 6689 which allegedly was used in the commission of offence was confiscated under Section 452, Cr. P. C. Three different appeals have been filed. One is filed on behalf of A1 and A5, another is filed by A6, A7, A8 and A10, and the third appeal is filed against the order of confiscation of vehicle by A5. All the appeals were taken together for hearing, arguments were heard and they are decided by this common judgment. ( 2 ) THERE were ten accused in all who were sent to the Court for facing the trial. During the pendency of trial two accused A4 and A9 absconded, charge was split and a separate S. C. No. 4/93 was registered against them. A2 and A3 also absconded, their case was also split up and another case S. C. No. 5493 was registered against A2 and A3. The present judgment of the trial Court concerns only accused A1, A5, A6, A7, A8 and A10. The prosecution proceeded on the following factual matrix. ( 3 ) THAT, on 1/10/1990 A1 to A10 armed with sticks and knives attacked the house of one Gudipati Veeraiah, broke open the doors by throwing boulders, trespassed into the house, tied Veeraiah and his sons Anil Kumar and Sunil Kumar with a rope and took away cash, gold and silver ornaments worth Rs. 31,000. 00. They were masked at the time of attack. They spoke Telugu, but one of them was speaking Hindi. They also attempted theft in the house of one Laxminarayana who was neighbour of the victim, but could not succeed as the inmates of that house raised alarm. While leaving the scene of occurrence the accused beat Laxminarayana who tried to intercept the offenders. He received knife injuries. F. I. R. was registered as Crime No. 142/90 by Station House Officer and the investigation started. While leaving the scene of occurrence the accused beat Laxminarayana who tried to intercept the offenders. He received knife injuries. F. I. R. was registered as Crime No. 142/90 by Station House Officer and the investigation started. The Circle Inspector of Police visited the scene of occurrence, drew up observation report in presence of two mediators, recorded statement of witnesses and made efforts to apprehend the accused. On 21/11/1990 C. I. of Police. Suryapet while investigating some other cases apprehended A6, A7, A8, A9 and A10. During the interrogation the accused A6 to A10 confessed that they along with A1 to A5 had committed the dacoity at Huzurnagar on the night of 1/10/1990 at 1. 00 a. m. They also stated that the stolen property had been taken away by A1 to A5, A6 to A10 further confessed that A1 to A5 who belong to Guntur had engaged a car to go over to Huzurnagar with an intention to commit the offence. Basing on the disclosures made by A6 to A10 the police kept vigil over the movements of offenders hailing from Guntur and on 8/12/1990 at 9. 00 a. m. A1 to A5 were apprehended at Munagala while they were travelling in Ambassador car APG 6689 which was proceeding towards Hyderabad on National High way No. 9. They voluntarily confessed about their involvement in the offence in presence of mediators. According to the prosecution, an Alwyn watch and one gold Nallapoosala golusu was recovered from A1, one pair of gold bangles, 8 gold nose sticks and one ladies HMT wrist watch was recovered from the possession of A3. One pusthalathadu and a wrist watch was recovered from the possession of A2, 4 gold rings were recovered from A4, 2 gold chains and 5 gold ear studs were recovered from the possession of A5 under a panchanama in presence of mediators. The accused were then remanded to judicial custody, A6 to A10 who had been arrested at Suryapet were also brought and remanded to judicial custody. Accordingly, the charge sheet was filed. ( 4 ) THE evidence of each of the witness is not needed to be considered in view of peculiar circumstances of the case. The accused were then remanded to judicial custody, A6 to A10 who had been arrested at Suryapet were also brought and remanded to judicial custody. Accordingly, the charge sheet was filed. ( 4 ) THE evidence of each of the witness is not needed to be considered in view of peculiar circumstances of the case. This has been all along the case of the prosecution as well as the complainant that the dacoits who entered into the house and took away the valuables were masked, therefore, the identification of the accused was always in doubt. It was important for the prosecution to establish that the persons who were put to trial were really accused persons who committed dacoity in the intervening night of 1st and 2/10/1990 in the house of the complainant. The so called eye-witnesses even deposed before the Court that they cannot identify the accused as they were masked. It appears that no efforts were made by the prosecution to ascertain the identity of the accused by any other evidence. P. W. 1, P. W. 12, P. W. 13 and P. W. 14 are the so called eye-witnesses. They deposed that the house was attacked and the valuables were taken away. But, they could not identify the accused persons. There is no other evidence connecting the accused persons to the crime except the alleged recovery from A1 to A5. There is another facet to this case. The case of A2, A3, A4 and A9 was split and they were tried separately, it is stated at the Bar that they were acquitted on the basis of the testimony of same witnesses. But, the trial Court in the present case believed recovery, it was of the view that since recovery has been made from A1 to A5, therefore their participation in the crime is not doubtful. ( 5 ) BEFORE coming to the question as to whether alleged recovery made from A1 to A5 can be made basis for their conviction it may be pointed out that from A6 to A10 no recoveries were made, therefore, there is no case at all against A6 to A10. The learned trial Court convicted A6 to A10 on the ground that A1 to A5 from whom recoveries were made had made a confessional statement before the Police about the alleged participation of A6 to A10 in the offence. The learned trial Court convicted A6 to A10 on the ground that A1 to A5 from whom recoveries were made had made a confessional statement before the Police about the alleged participation of A6 to A10 in the offence. This is absolutely illegal and not permissible. In Hari Charan v. State of Bihar AIR 1964 SC 1184 : (1964 (2) Cri LJ 344) which was also followed in Param Hans Yadav v. State of Bihar AIR 1987 SC 955 : (1987 Cri LJ 789) the Supreme Court while dealing with confession of a co-accused for the purpose of convicting the other accused, held (para 10 of AIR 1987 SC) :"thus, the confession may be regarded as evidence in that generic sense because of the provisions of S. 30, the fact remains that it is not evidence as defined by S. 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the Court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. "". . . . . . . . . THAT the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. "the rule for relying on confession of an accused for the purpose of conviction of another accused is that the confession should be used as a piece of corroborative evidence which would mean that, if there is any evidence against an accused person then that evidence may be corroborated by the confession of another accused person. Courts should not begin the process of dealing with conviction of a person on the basis of a confession made by co-accused. The beginning of the process has to be done with some cogent evidence which may then be corroborated with such a confession. This is the law which pertains to the confessions made before the Court. Courts should not begin the process of dealing with conviction of a person on the basis of a confession made by co-accused. The beginning of the process has to be done with some cogent evidence which may then be corroborated with such a confession. This is the law which pertains to the confessions made before the Court. I fail to understand how confession allegedly made before a police officer by accused A1 to A5 could be used against A6 to A10. Therefore, their conviction is absolutely based on no evidence at all. Accordingly conviction of A6, A7, A8 and A10 is set aside and the judgment is set aside to that extent. ( 6 ) THE learned Public Prosecutor, however, relies on S. 27 of the Evidence Act and submits that information received from the accused persons could be used for convicting the appellants. S. 27 relates to those facts which are discovered as a result of information given by the accused persons in the custody of police officer. In the present case there is no such fact which was revealed on the information of the accused persons. The learned Public Prosecutor relies on a judgment of Supreme Court in State of Maharashtra v. Damu Gopinath Shinde AIR 2000 SC 1691 : (2000 Cri LJ 2301) which says :"36. The basic idea embedded in S. 27 of the evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is now well settled that recovery of an object is not discovery of a fact as envisaged in the section. "going by S. 27 of the Evidence Act and by the judgment of the Supreme Court, I am of the view that this judgment is not in any way relevant for the purpose of the present case. ( 7 ) SECONDLY, this Court will have to deal with conviction of appellants A1 and A5. "going by S. 27 of the Evidence Act and by the judgment of the Supreme Court, I am of the view that this judgment is not in any way relevant for the purpose of the present case. ( 7 ) SECONDLY, this Court will have to deal with conviction of appellants A1 and A5. Their conviction is solely based on alleged recovery from them. It is not disputed by the learned counsel for the appellants that if the recovery had been proved the appellants A1 and A5 could be convicted. But, his contention is that this recovery was not proved at all before the Court and the recovery itself is doubtful for the reasons stated by the learned counsel. He submits that, it is not believable that even after two months of the occurrence the valuables which had been allegedly stolen would have been kept by the accused persons on their person, especially so, when accused A6 to A10 had been arrested on 21st November. The occurrence had taken place on 1/10/1990. Accused A6 to A10 had been arrested on 21/11/1990, and A1 to A5 were arrested on 8/12/1990. After the arrest of Accused 6 to 10 other accused persons would have become more apprehensive about their arrest and they would not travel in a car keeping the stolen valuables in their pocket. He further states that after the arrest of five of the accused the other five persons would not travel together in a car. These circumstances may not be sufficient to assume that the recovery was not made but certainly these circumstances create a doubt, whether in fact recoveries were made. The doubt gets further strengthened by the fact that the two mediators who according to the Investigating Officer were present at the time of recovery turned hostile. They did not support the prosecution story. P. W. 8 and P. W. 9 are the witnesses who were the mediators. P. W. 8 stated that he was taken by Police and was asked to sign on some Panchanama. He did not know the contents of panchanama. Police did not tell him about the contents of panchanama when the panchanama was signed by him. None of the accused was present. P. W. 8 stated that he was taken by Police and was asked to sign on some Panchanama. He did not know the contents of panchanama. Police did not tell him about the contents of panchanama when the panchanama was signed by him. None of the accused was present. Similarly, P. W. 9 stated that the stolen property was shown to him, he signed the panchanama, he was told that recoveries had been made by police from the accused persons, but recovery had not been made in his presence. The accused had not made any confession during his presence. The statement of the Investigating Officer P. W. 21 is also raising certain doubts. He stated that on 8-12-90 he organised checks of vehicles on National Highway No. 9. He was accompanied by two Head Constables. At 9-00 a. m. he intercepted a car bearing No. APG 6689 under suspicious circumstances, apprehended the accused, took them to police station, then called panchas P. W. 8 and P. W. 9 and then recorded the statement of accused persons which led to the recovery of stolen property from the person of the accused persons. Normally one expects that, when the police officer suspects and stops the car he would search the persons on the spot, he would not take them to police station, call persons to act as mediators and then search. This Court feels that, in over enthusiasm this story has been cooked up. Therefore, the whole story with regard to recovery cannot be believed as it appears to be unnatural and unusual. For these reasons, I find that the conviction of A1 and A5 also cannot sustain and it is also set aside. ( 8 ) BEFORE parting with the case, it may also be pointed out that, four accused persons whose case was split have already been acquitted and as stated at the Bar by the learned counsel for the appellants as well as learned public prosecutor, same witnesses were examined in those cases, the order of acquittal in favour of those accused persons has not been challenged. In the circumstances of this case, it will not be fair to uphold the conviction of the present appellants. ( 9 ) THE appeals were allowed. Order of conviction and sentence passed in S. C. No. 78/91 is set aside. Fine amount, paid if any, shall be reimbursed to the appellants. In the circumstances of this case, it will not be fair to uphold the conviction of the present appellants. ( 9 ) THE appeals were allowed. Order of conviction and sentence passed in S. C. No. 78/91 is set aside. Fine amount, paid if any, shall be reimbursed to the appellants. Since the conviction against the accused persons has been set aside and it is not proved that the car in question was used in commission of any offence, it shall be released to its owner. Appeal allowed.