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2003 DIGILAW 519 (AP)

DAVULAYYA v. State Of A. P.

2003-04-01

S.R.K.PRASAD

body2003
S. R. K. PRASAD, J. ( 1 ) THIS Criminal revision case is directed against the judgment of the of the learned Additional Metropolitan Sessions judge for trial of Communal offence cases, hyderabad rendered in Crl, Appeal No. 452 of 1999 dated 17. 7. 2000, confirming the conviction and sentence imposed against the revision petitioner-accused No. 3 by the xiv Metropolitan Magistrate, Hyderabad in cc No. 220 of 1996. ( 2 ) THE case of the prosecution is that PWs. l and 6 who are the constables of p. S. Chatrinaka, Hyderabad were on patrolling duty on 19. 1. 1994 apprehended the revision petitioner-accused No. 3 and two others while they were trying to dispose off the property i. e. the man - hole covers to PW. 3. There upon a case in crime No. 5 of 1994 was registered under section 41, and 102 of Cr. P. C. and the said property was seized from the accused in the presence of mediators. Thereafter, an Engineer of the Water Works department lodged Ex. Pl complaint reporting the loss of two man-holes from Aliabad and laxminagar areas. Thereafter, the charge sheet was filed against all the accused under section 379 IPC. ( 3 ) ON appearance of the accused, a charge under Section 411 IPC was framed against them. The revision petitioner A3 pleaded not guilty and claimed to be tried, while A2 is said to have pleaded guilty and the case against A1 has been split-up. ( 4 ) AFTER trial the learned XIV Metropolitan Magistrate found the revision petitioner-accused No. 3 guilty of the offence under Section 411 IPC and accordingly convicted and sentenced him to undergo r. 1. for ten months and M. Os. 1 to 3 were ordered to be released to the Assistant engineer, Water Works, Hyderabad after the expiry of appeal time. Aggrieved by the same, the matter has been carried in appeal to the Additional Metropolitan Sessions Judge for the Trial of Communal offences cases, hyderabad. The learned Sessions Judge by his judgment dated 17. 7. 2000 in Crl. Appeal 452 of 1999 confirmed the conviction and sentence imposed by the trial Court. Aggrieved by the same, the present revision has been preferred by the revision petitioner- accused No. 3. The learned Sessions Judge by his judgment dated 17. 7. 2000 in Crl. Appeal 452 of 1999 confirmed the conviction and sentence imposed by the trial Court. Aggrieved by the same, the present revision has been preferred by the revision petitioner- accused No. 3. ( 5 ) IT is mainly contended by the learned Counsel for the revision petitioner that there is no admissible evidence against the accused on the basis of which, the Court can find him guilty of the offence under Section 411 IPC. It is further contended by the learned Counsel for the revision petitioner that PW. 2 who is a panch witness in this case has acted panch witness in more than 20 cases and therefore he is a stock witness and hence no credence can be given to his evidence. It is also further contended that PW. 3 who was making a deal for purchase of the stolen property from the accused turned hostile. In view of the above, facts the learned Counsel for the revision petitioner contends that no case has been made-out against the revision petitioner-accused No. 3 for the offence under Section 411 ipc and he is entitled for acquittal. ( 6 ) ON the other hand the learned Public Prosecutor contends that there is admissible evidence in this case, since the property has been recovered from the possession of the accused and both the Courts below have rightly held scribe the revision petitioner-accused No. 3 guilty of the offence under Section 411 IPC and that interference by this Court is not warranted. ( 7 ) THE question that falls for consideration in this case is whether there is any admissible evidence against the revision petitioner to prove his guilty for the offence under Section 411 IPC. ( 8 ) I have perused the record. Ex. P1 is the confessional panchanama of A2. Ex. P2 is the confessional panchanama of A1. Ex. P4 is the confessional panchanama of A3. These three confessional statements said to have been recorded by the police in the police station have been marked by the Trial Court. ( 8 ) I have perused the record. Ex. P1 is the confessional panchanama of A2. Ex. P2 is the confessional panchanama of A1. Ex. P4 is the confessional panchanama of A3. These three confessional statements said to have been recorded by the police in the police station have been marked by the Trial Court. At this stage, it is relevant to note Sections 24 to 27 of the Indian EVIDENCE ACT, 1872 1872, which are extracted below: section 24: Confession caused by inducement, threat or promise when irrelevant in criminal proceeding :a confession made by an accused 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 for 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 that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. Section 25: Confession to police officer not to be proved :no donfession made to a police officer, shall be proved as against a person accused of any offence. Section 26: Confession by accused while in custody of police not to be proved against him :no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. 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 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 ) FROM the above provisions, it is clear that the confessional statements made to the police officers are not admissible in evidence. The case of the prosecution is that the revision petitioner- along with two others were apprehended by the police along with the property and they confessed to have committed the offence. ( 9 ) FROM the above provisions, it is clear that the confessional statements made to the police officers are not admissible in evidence. The case of the prosecution is that the revision petitioner- along with two others were apprehended by the police along with the property and they confessed to have committed the offence. Section 27 of the EVIDENCE ACT, 1872 makes it clear that the entire confessional statement of the accused recorded by the police is not admissible. The lower Court has failed to mark the admissible portion in the confessional statement of the revision petitioner-accused no. 3 clearly with red ink as directed by the high Court earlier in its Circulars. I once again state that it is the duty of the magistrates to see that only admissible portion in the confessional statements are specifically marked with red ink, so that the appellate Court and the revisional Court can have an opportunity to verify as to whether the admissible portions in the confessional statements are correctly marked or not. This marking is not intended for the use of the magistrates only, but it is intended for making use by the appellate as well as the revisional Court. In this case, the Trial court had failed to follow the said procedure, inspite of the statutory provisions and the circulars issued by this Court from time to time to mark only the admissible portions in red ink in the confessional statements. Since the entire statements in Ex. P1 to Ex. P3 are marked, they are inadmissible. One more circumstance placed before this Court by the learned Counsel for the revision petitioner is that the person who had acted as a panch witness in 20 cases had been picked-up and the panchanama was signed by him. In support of his contention, he relied on a decision of the Supreme Court in hiralal v. State of Bihar, AIR 1971 SC 356 . Relevant portion at para-4 reads as under:"kundanlal was himself a participant in the offence as the offer was made to him and he accepted the offer though, according to him, it was with the object of working out a case against the appellant of offering a bribe. He was, therefore, an interested witness. Relevant portion at para-4 reads as under:"kundanlal was himself a participant in the offence as the offer was made to him and he accepted the offer though, according to him, it was with the object of working out a case against the appellant of offering a bribe. He was, therefore, an interested witness. The other two witnesses examined are Amir Singh and Ram Rang Singh, on his own admission, has appeared as a prosecution witness four or five times in police cases pertaining to this police station. The evidence of such a witness can hardly carry any value in Court. The other witness Ram Rang, no doubt, was a Municipal Commissioner, but it is significant that, while Amir Singh, according to his evidence, became a witness as he happened to came to the police station for a purpose of his own. Ram Rang was specially sent for by Kundanlal. The fact that kundanlal particularly chose Ram Rang as the person to be called to be a witness itself makes the evidence of Ram Rang of doubtful value". ( 10 ) IN the above decision, it is clearly held by the Supreme Court that the evidence of such a witness does not carry any value. The learned Counsel for the revision petitioner also relied upon a decision of the bombay High Court in Mohd, Husaain v. State of Maharashtra, 1994 Crl. LJ 1020, wherein it was held that when the investigating Officer knowingly takes pliable witness as a panch witnesses, then he will be called as a stock-witness and his evidence has to be viewed with suspicion. In that view of the matter, in the present case, no value can be given to the evidence of PW. 2 who is the panch witness. Coming to the evidence of PW. 3 who said to be present at the time of recovery of the property, he turned hostile. The evidence of PW. 3 is only to the effect that police arrested the accused about two years back and took them. From the above, it is clear that there is absolutely no evidence regarding recovery of the property and confessional statement. It is a case where a report of theft was given after recovery of the property on some suspicion and it shows that all is not well with the prosecution and the investigating agency. From the above, it is clear that there is absolutely no evidence regarding recovery of the property and confessional statement. It is a case where a report of theft was given after recovery of the property on some suspicion and it shows that all is not well with the prosecution and the investigating agency. Moreover, no identification was conducted identifying the properties recovered from the accused. PW. 6 admits in his cross-examination that he did not give the descriptive particulars of the properties i. e. , the man-holes and he did not conduct the panchanama at the spot of inspection and he gave Ex. Pl report to the police. ( 11 ) MORE over in the present case the plea of the accused is not recorded in his own words. At the time of conducting the examination of accused under Section 313 cr. P. C. also the answers given by the accused are not recorded in his own words. Therefore, I am of the considered view that the Magistrates have to be given directions to record the plea accused in his language and in his own words, unless the Magistrate is not aware of the language and the accused gives his answers in a different language other than the language of the Court. The answers given by the accused under Section 313 Cr. P. C. shall also be recorded in the language of the court and the plea of the accused shall be recorded neatly and not scribbled by the magistrates, since the appellate Courts has to peruse the same. ( 12 ) THUS on a re-appraisal of the entire matter, I am of the considered view that absolutely there is no admissible evidence placed before this Court to give a finding that the revision petitioner-accused No. 3 is guilty of the offence under Section 411 IPC. I state that the evidence placed on record in this case is inadmissible and there is no proper investigation by the investigating agency. Further the blea of the accused is not recorded in his own words and the answers given by the accused under section 313 Cr. P. C. are not recorded in the words of accused and the confession of co-accused is said to have tendered as evidence which is inadmissible. Further the blea of the accused is not recorded in his own words and the answers given by the accused under section 313 Cr. P. C. are not recorded in the words of accused and the confession of co-accused is said to have tendered as evidence which is inadmissible. The procedure contemplated under Sections 24 to 27 of the Indian EVIDENCE ACT, 1872 has not been followed by the Magistrate as well as by the appellate Judge who dealt with the case. There is no proper reappraisal of the evidence by the appellate Court. In that view of the matter, the conviction and sentence imposed by the Trial Court and as confirmed by the appellate Court against the revision petitioner-accused No. 3 is liable to be set aside. ( 13 ) THE Criminal Revision Case is, accordingly allowed, and the conviction and sentence imposed against the revision petitioner-accused A3 by the Trial Court and as confirmed by the appellate Court is hereby set aside and he is acquitted of the offence under Section 411 IPC. The order of the Trial Court insofar as the property is concerned, is confirmed.