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2025 DIGILAW 1621 (KER)

Raju Thomas S/o Thomas v. State of Kerala

2025-06-10

A.BADHARUDEEN

body2025
JUDGMENT : A. BADHARUDEEN, J. The 1 st accused in S.C. No.1075/2003 on the of the First Additional Sessions Court, Kollam, has filed this appeal under Section 374 (2) of the Code of Criminal Procedure , 1973, challenging the conviction and sentence imposed by the Sessions Judge as per the judgment dated 02.12.2006. The State of Kerala, represented by the Public Prosecutor is arrayed as the sole respondent herein. 2. Heard the learned counsel for the appellant and the learned Public Prosecutor, in detail. Perused the verdict under challenge and the records of the trial court. 3. Parties in this appeal shall be referred as ‘accused’ and ‘prosecution’, hereafter. 4. Coming to the prosecution case, it is alleged that, at about 8.15 p.m on 22.04.1992, after sharing common intention to traffic fake Indian currency notes of the denomination Rs.100/- and Rs.10/-, accused Nos.1 and 2, possessed the said notes and used the same as genuine. Accordingly, the accused were arrested and the alleged fake notes were taken into custody. It is on the said premise, the prosecution alleges commission of offences punishable under Section 489 B and C read with 34 of the Indian Penal Code , by accused Nos. 1 and 2. 5. After, framing charge for the offences under Section 489 B and C read with 34 of the IPC , the trial court recorded evidence and tried the matter. PWs 1 to 11 were examined, Exts.P1 to 15 and MOs 1 to 3 were marked on the side of the prosecution. Even though, the accused were given opportunity to adduce defence evidence after questioning them under Section 313(1)(b) of Cr.P.C, they did not opt to adduce any defence evidence. 6. On appreciation of evidence, the trial court found that the 1 st accused is guilty for the o under Section 489 B and C read with 34 of the IPC . The conviction and sentence imposed by the trial court against the 1 st accused are extracted as under: (a) 1 st accused is sentenced to undergo rigorous imprisonment for a period of four years and a fine of Rs.5,000/-. The conviction and sentence imposed by the trial court against the 1 st accused are extracted as under: (a) 1 st accused is sentenced to undergo rigorous imprisonment for a period of four years and a fine of Rs.5,000/-. In default to undergo simple imprisonment for a further period of one year u/s 489 B I.P.C. (b) 1 st accused is also sentenced to undergo rigorous imprisonment for a period of two years and a fine of Rs.2000/- and in default to undergo simple imprisonment for a further period of six months u/s 489 C I.P.C. (c) The sentence shall run concurrently. (d) The period of detention undergone by the 1 st accused in this case will be set o against the substantive sentence of imprisonment. 7. Further, the 2 nd accused was acquitted by the trial court for the reason that, the counterfeit currency note recovered from him was given by the 1 st accused. 8. The learned counsel for the appellant/1 st accused raised multiple challenges, while assailing the verdict of the trial court. The prime and foremost challenge is that, there was delay in producing the alleged fake currency notes recovered from the accused before the Court and also forwarding the same to the FSL. According to the learned counsel for the appellant, even though the alleged fake currency notes marked as MO1 series and MO2, which were seized from the accused, at about 8.15 pm on 22.04.1992, as per Ext.P11 property list, the currency notes recovered from the 1 st and 2 nd accused reached the Court only on 25.04.1992, as evident from Ext.P8 and Ext.P9 search lists produced before the Court. It is also pointed out by the learned counsel for the appellant/1 st accused that, on house search of the 1 st accused, two fake currency notes having denomination of Rs.100/- and three fake currency notes having denomination of Rs.10/- were recovered as per Ext.P4 mahazar on 23.04.1992 and the same produced before the Court only on 29.04.1992. Similarly, non production of forwarding note of the MOs sent for FSL Report also was pointed out as a serious flaw in the prosecution case. Similarly, non production of forwarding note of the MOs sent for FSL Report also was pointed out as a serious flaw in the prosecution case. According to the learned counsel for the appellant/1 st accused, even though no forwarding note produced before the Court, Ext.P14 series FSL reports would suggest that, the currency notes examined by the expert are fake notes and the fake notes reached the FSL on 22.04.1998 i.e. after six years. So, according to the learned counsel for the appellant/1 st accused, the delay in producing MOs 1 to 3 before the Court as well as sending the same to the FSL, is fatal to the prosecution and this much delay would cast doubt on the genuineness of the prosecution case in the matter of forwarding the recovered MOs itself for scientific examination. Therefore, the same is a point to the adjudged in favour of the appellant/1 st accused. 9. According to the learned counsel for the appellant, in this matter, even though MO3 series notes were seized by preparing Ext.P4, the authorship of concealment and recovery thereto as mandated by law are not deposed by the Investigating Officer before the Court, who was examined as PW7. Therefore, for the said reason, recovery of MO3 series is not proved within the mandate of law and the same also is a point to be adjudged in favour of the 1 st accused/appellant. In this connection, the learned counsel for the appellant placed decision of the Apex Court reported in [ 2024 (1) KLD 679 (SC)] Babu Sahebagouda Rudragoudar v. State of Karnataka wherein, the Apex Court held as under: “The statement of an accused recorded by a police officer under Section 27 of the Evidence Act is basically a memorandum of confession of the accused recorded by the Investigating officer during interrogation which has been taken down in writing. The confessional part of such statement is inadmissible and only the part which distinctly leads to discovery of fact is admissible in evidence as laid down by this Court in the case of State of Uttar Pradesh v. Deoman Upadhyaya . 63. In the case of Mohd. The confessional part of such statement is inadmissible and only the part which distinctly leads to discovery of fact is admissible in evidence as laid down by this Court in the case of State of Uttar Pradesh v. Deoman Upadhyaya . 63. In the case of Mohd. Abdul Hafeez v. State of Andhra Pradesh , it was held by this Court as follows:- "If evidence otherwise confessional in character is admissible under Section 27 of the Indian Evidence Act, it is obligatory upon the Investigating officer to state and record who gave the information; when he is dealing with more than one accused, what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide incriminating evidence against that person." Similar view was taken by this Court in the case of Ramanand @ Nandlal Bharti v. State of Uttar Pradesh , wherein this Court held that mere exhibiting of memorandum prepared by the Investigating officer during investigation cannot tantamount to proof of its contents. While testifying on oath, the Investigating officer would be required to narrate the sequence of events which transpired leading to the recording of the disclosure statement. Further, in the case of Subramanya v. State of Karnataka , it was held as under: "If, it is say of the Investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes etc., then the first thing that the Investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence etc. When the accused while in custody makes such statement before the two independent witnesses (panch-witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the Investigating officer may draw in accordance with law. When the accused while in custody makes such statement before the two independent witnesses (panch-witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the Investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch-witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the Investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the Investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter." 10. It is argued by the learned counsel for the appellant/1 st accused further that, even though recovery of MO1 series from the 1 st accused and recovery of MO2 notes from the 2 nd accused found to be proved by the trial court, the trial court acquitted the 2 nd accused and convicted the 1st accused alone, on finding that he alone committed the offences. According to the learned counsel for the accused, the trial court should have given benefit of doubt given to the 2 nd accused to the 1 st accused also. Contra view taken by the trial court is wrong. Therefore, the finding of the trial court that the 1 st accused committed the o punishable under Section 489 B and C of the IPC is patently wrong and the same would require interference. 11. Contra view taken by the trial court is wrong. Therefore, the finding of the trial court that the 1 st accused committed the o punishable under Section 489 B and C of the IPC is patently wrong and the same would require interference. 11. Per contra, the learned Public Prosecutor, who supported the conviction and sentence imposed by the trial court against the 1 st accused submitted that, recovery of MO1 and MO3 series from the possession of the 1 st accused is proved satisfactorily and MO1 series were recovered when the 1 st accused used the same as genuine notes at the cash counter of a liquor shop. Therefore, the possession and use of counterfeit currency notes found as fake currency notes as per Ext.P14 series FSL reports, would substantiate that the 1 st accused committed the offence punishable under Section 489 B and C of the IPC . Therefore, the conviction and sentence are liable to be confirmed. 12. In view of the rival submissions, the points arise for consideration are: 1. Whether the trial court went wrong in finding that the 1st accused/appellant committed the offence punishable under Section 489B of the IPC and thereby convicted and sentenced the 1 st accused? 2. Whether the trial court went wrong in finding that the 1st accused/appellant committed the offence punishable under Section 498C of the IPC and thereby convicted and sentenced the 1 st accused? 3. Whether the verdict of the trial court would require interference? 4. Order to be passed? 13. In this matter, the prosecution case is that, accused Nos.1 and 2 with common intention to traffic fake Indian currency notes and use the same as genuine, possessed MOs 1 to 3 counterfeit currency notes and the same were recovered by the Police. PW7 is the detectingofficer and he had given evidence that, at about 8.15 p.m. on 22.04.1992, while he was on duty at the Police Station, he got information regarding a quarrel at the foreign Liquor shop in Kulathupuzha Junction. The information was that, some people had brought counterfeit currency notes to the cash counter of the foreign liquor shop. Soon, PW7 proceeded to the place of occurrence, along with the Police party. When he reached the liquor shop, he saw that accused Nos.1 and 2 were standing near the cash counter and there were others also at the cash counter. Soon, PW7 proceeded to the place of occurrence, along with the Police party. When he reached the liquor shop, he saw that accused Nos.1 and 2 were standing near the cash counter and there were others also at the cash counter. On questioning the staff at the cash counter, he was told that accused Nos.1 and 2 gave counterfeit currency notes and tried to exchange the same for the liquor they consumed. It was also stated by the staff that, the 2nd accused possessed the currency notes and it was found by PW7 that the 2 nd accused possessed fake currency note of Rs.100/-. The 2 nd accused confessed before the Police that the said counterfeit currency note was given by the 1 st accused, which was marked as MO2. When the 2 nd accused was questioned again, he told PW7 that, he was not in possession of the said note. Later, in the presence of witnesses, when the body of the 1 st accused was searched, it was found that he possessed three fake currency notes for the denomination of Rs.100/- and also 21 fake currency notes of Rs.10/-. MO1 series are the notes recovered from the 1 st accused and MO2 is the note recovered from the 2 nd accused. Ext.P1 is the mahazar pertaining to recovery of MO1 series and MO2. On the basis of Ext.P1, FIR was registered. PWs 1 and 2 are two independent witnesses examined by the prosecution, who are the staff of the foreign liquor shop, where the alleged incident took place. They admitted their signatures in Ext.P1 mahazar pertaining to recovery of MO1 series and MO2. Though, PW1 has admitted his signature in Ext.P1 mahazar, when he was asked about the occurrence, he stated that he was not present at the liquor shop on the day of occurrence. Similarly, PW2 also admitted his signature in Ext.P1, his version is that he put signature in Ext.P1 at the Police Station and he was not aware of the notes shown to him. Thus, the independent witnesses, who singed Ext.P1 recovery mahazar turned hostile to the prosecution. PW3 is an independent witness, who was examined to prove Ext.P4 mahazar, prepared by PW7, at the time of search of the house of the 1 st accused, whereby MO3 series were recovered. Thus, the independent witnesses, who singed Ext.P1 recovery mahazar turned hostile to the prosecution. PW3 is an independent witness, who was examined to prove Ext.P4 mahazar, prepared by PW7, at the time of search of the house of the 1 st accused, whereby MO3 series were recovered. During examination of PW3, though he admitted signature in Ext.P4, it was deposed that he was not aware about the recovery. Accordingly, PW3 was also declared as hostile. The prosecution case is that, the 1 st accused was residing in the house managed by PW4 on rent at the time of recovery. But, PW4, who was managing the house that belonged to the brother of his father-in-law, denied having given the said house to the 1 st accused. His evidence is that the house was given for rent to one Shaji. Thus, independent witnesses to prove the recovery of MO1, MO2 and MO3, in fact, not supported the same and the evidence of PW7 is the sole evidence available in this regard. 14. On perusal of the evidence given by PW7, it could be gathered that, PW7 failed to depose about the authorship of concealment spoken by the 1 st accused, which led to recovery of MO3 series. As per the ratio laid down by the Apex Court in Babu Sahebagouda Rudragoudar ’s case (supra), it is obligatory upon the Investigating officer to state and record who gave the information, what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide incriminating evidence against that person. If so, recovery of MO3 series under Section 27 of the Indian Evidence Act, could not be held as proved sufÏciently, otherwise the recovery is in serious doubt. 15. The cardinal argument at the instance of the learned counsel for the appellant/1 st accused is by pointing out the delay in sending the MOs before the Court and also non production of forwarding note of the MOs for sending the same to the FSL for scientific examination. It is true that, MO1 series and MO2 were recovered from the 1 st and 2 nd accused respectively, at about 8.15 pm on 22.04.1992. But, as per Ext.P11 property list, the same reached the Court only on 25.04.1992. It is true that, MO1 series and MO2 were recovered from the 1 st and 2 nd accused respectively, at about 8.15 pm on 22.04.1992. But, as per Ext.P11 property list, the same reached the Court only on 25.04.1992. Similarly, recovery of MO3 series from the house of the 1 st accused as volunteered by him was on 23.04.1992. But, the MO3 was produced before the Court as per Ext.P11 property list only on 29.04.1992. The argument of the learned counsel for the appellant/1 st accused, while challenging the conviction and sentence imposed by the trial court against the 1 st accused, is by highlighting the delay in producing the alleged fake currency notes recovered from the accused. It is worthwhile to note that, the prosecution failed to produce the forwarding note pertaining to production of MOs before the FSL for getting scientific opinion. As per Ext.P14 series FSL reports, it was stated that the MOs were forwarded to the FSL on 22.04.1998. If so, the forwarding of the alleged fake currency notes, recovered on 22.04.1992 and 23.04.1992 was done after six years i.e. on 22.04.1998. 16. In cases where the recovered items alone are decisive to find the offence alleged to be committed by the accused, it is absolutely necessary that those items should be produced before the Court at the earliest opportunity, preferably on the next day, unless sufficient reasons for its non production on the next day, acceptable to the Court not offered and established. No doubt, when MOs produced before the Court even after one day, with sufficient explanation for such delayed production, the Court can consider the same. Similarly, the items so produced before the Court shall be forwarded to the FSL, within a reasonable time, at least within a period of one month, taking note of the procedural formalities regarding preparation of forwarding note etc. If, the recovered items were not forwarded to the FSL, within a period of one month at least, there must be justification regarding the delay occurred, acceptable to the Court. 17. In the instant case, apart from the delay in producing the MOs before the Court as already pointed out, Ext.P14 series FSL reports would show that MOs were sent for chemical analysis report only on 22.04.1998 i.e. after six years from the date of recovery. 17. In the instant case, apart from the delay in producing the MOs before the Court as already pointed out, Ext.P14 series FSL reports would show that MOs were sent for chemical analysis report only on 22.04.1998 i.e. after six years from the date of recovery. The reasons for the delay not properly or even remotely explained in this case and the same is fatal to the prosecution. Having noticed the delay in production of MOs before the Court and most importantly, the inordinate delay of six years in sending the same to the FSL, it could not be ensured that the disputed fake currency notes recovered from accused Nos.1 and 2 itself reached the FSL without being tampered or altered. The delay would shadow doubt regarding this aspect. To be more explicit, in cases involving delay in producing the recovered MOs before the Court and sending the same to the FSL, as discussed herein, it could not be said that the items recovered from the accused itself reached the hands of the expert to examine its nature and the said procedural irregularity would go to the root of the matter. 18. It is interesting to note that, the available evidence would prove that, MO2 was recovered from the 2 nd accused. But the trial court acquitted the 2 nd accused, on the ground of a confession made before PW7 by the 2 nd accused that, MO2 was handed over by the 1 st accused. It is strange to note that that, in this case, the 2 nd accused was the person who had allegedly given the fake currency note of Rs.100/- to the liquor shop counter. If so, recovery of the same, if found to be established, the trial court could not acquit the 2 nd accused, merely on the basis of confession given by the 2 nd accused before PW7. When, on the same evidence, one accused is acquitted, similar benefit should be given to the co-accused to avoid discrimination among accused, who faced trial, where common evidence regarding their complicity was let in. 19. Having found so, I am of the view that the trial court went wrong in finding that the 1st accused committed the offences punishable under Sections 489 B and C read with 34 of the IPC , since the prosecution failed to prove the case beyond reasonable doubts. 19. Having found so, I am of the view that the trial court went wrong in finding that the 1st accused committed the offences punishable under Sections 489 B and C read with 34 of the IPC , since the prosecution failed to prove the case beyond reasonable doubts. Therefore, the 1 st accused/appellant herein is entitled to the benefit of doubt and as such the conviction and sentence imposed by the trial court in the above circumstances cannot sustain. It is strange to note that, once the 2 nd accused was acquitted by the trial court for the offences punishable under Sections 489 B and C of the IPC , how could Section 34 of IPC come into place. In view of the matter, the conviction and sentence imposed by the trial court against the 1 st accused/appellant are liable to be set aside. 20. In the result, the appeal is allowed. Conviction and sentence imposed by the trial court against the appellant/1 st accused are set aside. Consequently, the appellant/1 st accused is acquitted for the offences under Sections 489 B and C read with 34 of the IPC . The bail bond executed by the appellant/1 st accused shall stand cancelled. He is set at liberty forthwith. Amount, if any, being part of the fine deposited by the appellant/1 st accused by order of this Court shall be refunded to him, in accordance with the procedure established by law.