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Andhra High Court · body

2003 DIGILAW 1589 (AP)

Ahmed Saadi v. State Of A. P.

2003-12-26

S.R.K.PRASAD

body2003
S. R. K. PRASAD, J. ( 1 ) THE accused has preferred this appeal against the judgment of conviction and sentence of rigorous imprisonment for a period of one year and imposition of fine of Rs. 5,000. 00 for the offence under Section 353 IPC, passed by the in Additional Metropolitan Sessions judge-cum-Special Judge for Trial of cases under the Essential Commodities Act in S. C. No. 516ofl995. ( 2 ) THE factual matrix that arise for consideration can be briefly stated as follows: rigorous imprisonment for six months. Aggrieved thereby, the accused has preferred this appeal. ( 3 ) THE point that arises for consideration is "whether the prosecution has proved the guilt of the accused beyond all reasonable doubt for the offence punishable under Section 353 IPC"? ( 4 ) THE learned Counsel appearing for the appellant contends that non-examination of Sirajul Hasan is fatal to the version of the prosecution. It is further contended that recovery was not made by the officer who recorded the confession statement and it was recovered by another police officer, who took charge of this case. Moreover, there is discrepancy in the evidence of police officials and the independent witnesses regarding recovery of the property. Therefore, it is contended that the accused is entitled to be given benefit of doubt. ( 5 ) THE learned Public Prosecutor on the other hand contends that the evidence of police officials is reliable and has to be accepted. It is also contended that the lower court has rightly come to the conclusion in finding the accused guilty of the offence punishable under Section 353 IPC. ( 6 ) ADVERTING to the said contentions, i am of the view that the prosecution has to prove that there was an attack on the sirajul Hassan, and the prosecution had to examine Sirajul Hassan. Non-examination of the said witness is certainly fatal to the prosecution case; since no explanation is forth coming for failure to prove the said version. Further no independent evidence is forthcoming corroborating the evidence of police officers. In the absence of such evidence, I am of the considered view that much reliance cannot be placed on the testimony of police officials. The contention of the police officials that PW. Further no independent evidence is forthcoming corroborating the evidence of police officers. In the absence of such evidence, I am of the considered view that much reliance cannot be placed on the testimony of police officials. The contention of the police officials that PW. 1 fired two rounds aiming below the knees of the accused, when the accused tried to attack them, cannot be believed, since the necessary material is not forthcoming with regard to the same. The prosecution ought to have placed the documentary evidence in support of its version. In the absence of any such material, it cannot be said that they have fired two rounds aiming below the knees of the accused. The only piece of evidence is Ex. P-2-F. I. R, and the same cannot form part of evidence. More so, the Trial Court ought not to have proceeded with the premise that the accused is a rowdy-sheeter, as the prosecution has come with a specific case that the accused is a rowdy-sheeter. The Court has to again record evidence after framing charge about that aspect and can consider the same so as to impose enhanced punishment. The accused is entitled to take the plea of innocence and the Court has to presume until the contrary is proved. Moreover, no record is produced before the court to show that he is a rowdy-sheeter. The prosecution cannot ask the Court to presume that a particular person is a rowdy- sheeter, without producing any documentary evidence. ( 7 ) COMING to the aspect of recovery of the property, it is to be seen that PW. 6 is said to have recorded the confessional statement of the accused under Ex. P. 3. PWs. 3 and 4 are the persons who attested the panchanama and they turned hostile. PW. 4 did not identify the accused in the Court hall and he clearly stated that the police have not taken him to anywhere but shown a knife stating that they seized it from a person and further asked him to sign on some papers, and hence, he signed. The version of the independent witness is different from that of the police. There is no cogency and consistency in their version with regard to recovery of the weapon. Moreover, this is a case where the confessional statement of the accused is said to have been recorded by one police officer namely, PW. The version of the independent witness is different from that of the police. There is no cogency and consistency in their version with regard to recovery of the weapon. Moreover, this is a case where the confessional statement of the accused is said to have been recorded by one police officer namely, PW. 6, and ultimately, due to his transfer and handing over of charge to PW. 7, the recovery of the weapon is made by another person i. e. , PW. 7 on 11-10-1994. ( 8 ) SECTION 27 of the Indian Evidence act (for short the Act ) reads as follows:"section 27: How much of information received from accused may be proved : provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a Police Officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. " ( 9 ) IT is not mentioned in Section 27 of the Act as to whether confession can be made before one police officer and the recovery can be made by another succeeding police officer. Interpretation of Section 27 of the Act has fallen for consideration in a decision reported in Dasu Ram v. State, air (39) 1952 Raj. 20. The relevant portion of which reads thus:para-12: "the only portion of the statement, which can be read in evidence, is that the appellant stated that the ornaments were in his house and that he would recover them. This statement has been attempted to be proved by the evidence of the Sub-Inspector sohanlal and two witnesses Ummed andmoti. The evidence of the Sub-Inspector, however, is that the accused had already told him that he would recover the ornaments from his house and that he told so in the presence of Ummed and Mati for a second time who were not present when this disclosure for the first time was made to the Sub-Inspector. Under these circumstances, the evidence of Ummed and Moti about the accused having shown his readiness to recover the property is not admissible. Under these circumstances, the evidence of Ummed and Moti about the accused having shown his readiness to recover the property is not admissible. It was held in public Prosecutor v. Subbareddi, air (26) 1939 Mad 15, that where a Circle inspector knew beforehand what the accused was going to say, but finding it necessary to have more trustworthy persons present as witnesses, when the information should disclosed, he sent for two witnesses to go to the police station where the accused was kept in custody and on the arrival of those witnesses, the accused was brought out of the lock-up and examined by the circle Inspector and the statement of the accused was embodied in a Panchayatnama and signed by the witnesses and the information said to have been then given by the accused led to the discovery of certain instruments, by which the accused was alleged to have committed the murder, it was impossible to say that anything was discovered in consequence of the statement made by the accused to the Inspector in the presence of the witnesses. Hence the evidence regarding the statement of the accused embodied in the Panchayatnama and spoken to the witnesses was wholly inadmissible. It was again held in in re kottameedi Chennareddi AIR 1940 Mad 710 , that it is the first statement of the accused to whomsoever made that leads to the discovery of the fact, after a fact is discovered. Thus it cannot be said that the ornaments in question were discovered on the information given to the Sub-Inspector in the presence of Ummed and Moti. The only information that can be said to have led to the discovery was the information said to have been given to the Sub-Inspector when he was alone. " ( 10 ) SIMILARLY, the High Court of Punjab in a decision in V. V. Joshi v. State, AIR 1968 Punjab 120, held in paras 7 and 8, as under:"7. So far as Inder Jit accused is concerned, the prosecution has sought to bring the case against him under Section 201 of the indian Penal Code, because it is alleged that he caused disappearance of the evidence of the offence of receiving illegal gratification by Joshi accused by concealing the currency notes in cassette Exhibit P. 18. So far as Inder Jit accused is concerned, the prosecution has sought to bring the case against him under Section 201 of the indian Penal Code, because it is alleged that he caused disappearance of the evidence of the offence of receiving illegal gratification by Joshi accused by concealing the currency notes in cassette Exhibit P. 18. In order to show that the currency notes had been concealed in the cassette by Inder Jit accused and not by Joshi accused or anyone else, the prosecution has primarily relied upon the disclosure statement, which is alleged to have been made by Inder Jit accused to DSP Somji Mal in the presence of Shri H. L. Balla (PW. 6), Shri Rajinder signh (PW. 8) and Shri Kapoor Singh (PW. 12) that he had placed the currency notes in a cassette lying in the dark room and that he could produce the same. Memo exhibit P. 17 about this statement was then prepared. The six currency notes were thereafter recovered from the cassette. The important question, which arises for consideration is whether the statement which is alleged to have been made by Inder Jit accused to DSP Somji Mal and which was embodied in memo Exhibit P. 17 is admissible in evidence under Section 27 of the Indian evidence Act according to which when any fact is discovered in consequence of information received from a person accused of an offence, in the custody of a police officer so much of such information, whether it amounts to the confession or not as relates distinctly to the fact thereby discovered, may be proved. In this connection I find that the evidence of DSP Somji Mal (PW. 21) goes to show that at about 10 or 10. 30 p. m. , on the day the trap was arranged he was informed by SI Bajaj that Inder Jit accused was prepared to point out the place where he had cancealed the money. The Deputy superintendent of Police then went to the special Police Establishment office and personally interrogated Inder Jit accused and was satisfied about the information conveyed to him by SI Bajaj. The Deputy superintendent of Police then went with Inder jit and others to the hospital where other witnesses were also joined. The Deputy superintendent of Police then went to the special Police Establishment office and personally interrogated Inder Jit accused and was satisfied about the information conveyed to him by SI Bajaj. The Deputy superintendent of Police then went with Inder jit and others to the hospital where other witnesses were also joined. Inder Jit then made the disclosure statement embodied in exhibit P. 17 and thereafter got recovered the currency notes, it is however, clear from the testimony of DSP Somji Mal that, before recording the statement embodied in memo exhibit P. 17 of Inder Jit accused, the Deputy superintendent of Police recorded another statement of Inder Jit which is on the police file and was not placed on the record of the case. There is nothing to show that the place, where the currency notes had been placed had not been indicated by Inder Jit accused in the said statement to the Deputy superintendent of Police. It is significant that the said statement was recorded by DSP somji Mal in the context of the information received by him on telephone that Inder Jit was prepared to point out the place where the currency notes had been concealed and it was with a view to satisfy himself about the correctness of the information conveyed to him that the Deputy Superintendent of Police interrogated Inder Jit and recorded his statement. The aforesaid statement having not been placed on the record, the learned counsel for Inder Jit has with plausibility argued that it cannot be said that it was the statement embodied in Exhibit P. 17 and not the earlier statement of Inder Jit which gave information about the cassette wherein the currency notes were lying. It is well settled that it is the first statement made by an accused leading to a recovery which is admissible in evidence. If the police already knows the place where an incriminating article is lying as a result of interrogation of the accused, the repetition of that statement by the accused, after witnesses are called would not make the statement before witnesses admissible in evidence. I may in this context refer to Public Prosecutor v. B. Subba Reddy, AIR 1939 Mad. 15. If the police already knows the place where an incriminating article is lying as a result of interrogation of the accused, the repetition of that statement by the accused, after witnesses are called would not make the statement before witnesses admissible in evidence. I may in this context refer to Public Prosecutor v. B. Subba Reddy, AIR 1939 Mad. 15. In that case a Circle Inspector knew beforehand what the accused was going to say, but finding it necessary to have more trustworthy persons present as witnesses when the information should be disclosed, he sent for two witnesses and on their arrival examined the accused. The statement of the accused was then embodied in a panchayatnama and was signed by the witnesses. The discovery of certain instruments was made in pursuance of the statement. It was held by a Division bench of Madras High Court (Burn and lakshmanna Rao, JJ.) that it was impossible to say that nothing was discovered in consequence of the statement made by the accused to the Inspector in the presence of the witnesses, and hence the evidence regarding the statement of the accused embodied in the Panchayatnama and spoken to by the witnesses was wholly inadmissible. In Re: K Chenna Reddy, AIR 1940 Mad. 710 , a Division Bench of the Madras High court held that it is the first statement of the accused to whomsoever made, that leads to the discovery of the fact, if a fact is discovered and as such is admissible in evidence under section 27 of the Evidence Act. In Dasu ram v. State, AIR 1952 Raj 20 , the evidence of the Sub-Inspector was that the accused had already told him that he would recover the ornaments from his house and that the accused repeated that statement for a second time in the presence of witnesses who were not present when the first disclosure was made to the Sub-Inspector. A Division Bench of the Rajasthan High Court held that it could not be said that the ornaments were discovered on the information given to the sub-Inspector in the presence of the witnesses and that the only statement that could be said to have led to the recovery was the information given to the Sub-Inspector when he was alone. A Division Bench of the Rajasthan High Court held that it could not be said that the ornaments were discovered on the information given to the sub-Inspector in the presence of the witnesses and that the only statement that could be said to have led to the recovery was the information given to the Sub-Inspector when he was alone. The evidence of the witnesses about the accused having shown his readiness to recover the property was held to be not admissible. 8. Mr. Verma on behalf of the State has referred to Public Prosecutor v. India China lingiah, AIR 1954 Mad. 433 , wherein ramaswami, J. , observed that it has become the practice for Police Officers, when they expect the accused to make a confession either on information received or from deduction from surrounding circumstances to take with them or procure respectable mediators and to prepare a panchayatnama in writing containing the information given by the accused. It does not, in my opinion, however, follow from that where the police officer knows the exact place as a result of interrogation of the accused where the incriminating articles are lying and subsequently gets the same information by recording the statements of the accused in the presence of witnesses, the subsequent statement becomes admissible. It would indeed depend upon the circumstances of each case. If the information derived as a result of interrogation was merely vague and the precise information was received as a result of the statement made by the accused in the presence of witnesses the subsequent statement would be admissible in evidence. Likewise, if the previous statement made to the investigating officer merely indicated a willingness of the accused to disclose where the incriminating articles were lying and the actual information about that place was given in a subsequent statement made in the presence of the witnesses, the subsequent statement would be admissible if the incriminating articles are recovered in pursuance of the statement. Where, however, the accused has already disclosed the place where, the incriminating articles are lying in the course of his interrogation to the investigating officer and the latter gets the statement repeated in the presence of the witnesses in order to incorporate it in memo and to give it greater authenticity to the subsequent statement, in my view would not be admissible. There is nothing to show that the case against Inder Jit accused does not fall in the last category. Indeed the circumstances, which have been referred to above, lend colour to the contention advanced on behalf of Inder Jit that his case in fact falls under the last category. It was for the prosecution to show that the recovery of the six currency notes was made in pursuance of the disclosure statement embodied in memo Exhibit P. 17 and not in pursuance of the earlier statement. The prosecution has, however, failed to prove this fact by satisfactory evidence Section 27 engrafts an exception to the general rale which renders the statement made by an accused to the police inadmissible and in case the prosecution wants to bring a case within the exception it has to discharge the onus by clear and cogent evidence. This onus has not been discharged in the present case. I would, therefore, hold that the statement of Inder Jit embodied in Exhibit p. 17 is not admissible in evidence. " ( 11 ) IT was clearly stated that the confession made before the police officer, which led to recovery by another police officer, is inadmissible in evidence, and the first statement alone is admissible. According to Section 172 Cr. P. C. every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation. According to Section 173 of Cr. P. C. a report has to be submitted by the officer-in-charge after completion of investigation. ( 12 ) IT is clear from Section 173 (1) of cr. P. C. that every investigation under this chapter shall be completed without unnecessary delay. But in the instant case, the confession was made on 5-9-1994 and the weapon was recovered on 11-10-1994, as can be seen from the evidence of PW. 6. It cannot be believed that the dragger remained on the road at Barkas for so many days unnoticed by the persons passing on the road. The story appears to be artificial one and the same cannot be believed. 6. It cannot be believed that the dragger remained on the road at Barkas for so many days unnoticed by the persons passing on the road. The story appears to be artificial one and the same cannot be believed. Viewed from any angle, the evidence of police officials cannot be believed inasmuch as the same is not corroborated by any independent evidence. ( 13 ) FROM the above it is clear that the investigation has to be completed on day-to- day basis. If any delay occurs in recovering the property in pursuance of the confession, the same has to be explained properly, otherwise, the evidence of the prosecution shall not carry much credence and weight, and it has to be disbelieved. To sum up, I find that the proseuction has not proved its case, which led the police officials to rush to the scene of offence. Further, the prosecution failed to prove the recovery said to have been made in pursuance of confession. Hence, it is a fit case where the accused is entitled to be given benefit of doubt. Accordingly, I acquit the accused for the offence punishable under Section 353 ipc. The order passed by the learned hi Additional Metropolitan Sessions Judge- cum-Special Judge for Trial of cases under the Essential Commodities Act in SC No. 516 of 1995 is hereby set aside.