James, S/O Thomas and KuriaKose @ Joy @ Sunny v. State of Kerala

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` TUESDAY, THE 6[TH] DAY OF JUNE 2023 / 16TH JYAISHTA, 1945 ``` ``` CRL.A NO. 524 OF 2006 ``` ``` [AGAINST THE JUDGMENT IN S.C.NO.85/2005 DATED 14.2.2006 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE, KOTTAYAM] ``` ## `APPELLANT/ACCUSED NOS.1 AND 2:` ``` 1JAMES, S/O. THOMAS, ANASSERIYIL VEEDU, NELLITHANATHUMANA KARA,, KURICHITHANAM VILLAGE, KOTTAYAM DISTRICT. 2KURIAKOSE @ JOY @ SUNNY PLACKAL VEEDU, PINNAKKANADU BHAGOM, PADINJATTUMALA KARA, KONDOOR VILLAGE, KOTTAYAM. BY ADVS. SRI.T.D.ROBIN SRI.R.ANUP ``` ## `RESPONDENT/S:` ``` STATE OF KERALA,REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ``` ``` BY ADV.SUDHEER GOPALAKRISHNAN, PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.05.2023, THE COURT ON 06.06.2023 DELIVERED THE FOLLOWING: ``` CRL.A. No.524 /2006 2 ## `JUDGMENT` ``` The appellants in this case are accused Nos.1 and 2 in S.C. No.85/2005 on the file of the ``` ``` Additional Sessions Court, Kottayam. The aforesaid Sessions Case arose from Crime No.42/2002 of ``` ``` Kuravilangadu Police Station, which was registered ``` ``` for the offences punishable under sections 489B & ``` ``` 489C r/w.34 of the Indian Penal Code (IPC) against three accused persons. ``` ``` 2.The prosecution case is as follows: ``` ``` On 6.2.2002 at about 1.30 p.m., the Circle ``` ``` Inspector of Police, Pala, got the information ``` ``` that two persons, including one James and one ``` ``` Kuriakose, who were at the relevant time at the ``` ``` Bar hotel named ‘Zodiac’ and consuming alcohol, ``` ``` had counterfeit currency notes in their ``` ``` possession. Thereupon, the Circle Inspector of ``` ``` Police, Pala, went to the Sub Inspector of Police, ``` CRL.A. No.524 /2006 3 ``` Kuravilangadu and they, along with the police party, reached the Zodiac Bar. Thereupon, it was found that the 1[st] and 2[nd] accused, who matched the description in the information received by the Circle Inspector of Police, were consuming alcohol by sitting on the south-western corner of the bar. When the 1[st] accused was interrogated, a plastic bag he held at the relevant time was handed over to the 2[nd] accused, who attempted to move away with the same. Both of them were apprehended, and upon opening the plastic cover, it was found that one dhoti and bath towel were kept in the bag. Upon examining the dhoti kept in the bag, they could recover 30 currency notes of 100 denominations and three currency notes of 50 denominations. On ``` ``` examination, it was found that the currency notes were counterfeit; accordingly, both were arrested, and articles seized. During the course of ``` ``` investigation, the appellants herein revealed that ``` CRL.A. No.524 /2006 4 ``` they got the currency notes from the 3[rd] accused, ``` ``` and thereupon, further investigation conducted, during which, the 3[rd] accused was arrested on ``` ``` 14.03.2002. Later, during the search conducted at ``` ``` the house of PW5, the 2[nd] wife of 3[rd] accused, the ``` ``` police could recover two counterfeit currency ``` ``` notes of 100 rupee denomination. Thereafter, the ``` ``` investigation was taken over by the Crime Branch ``` ``` CID and after completing the same, a final report was submitted for the offence mentioned above ``` ``` against the accused persons. The said report was ``` ``` taken into the file as C.P.No.22/2004 by the ``` ``` Judicial First Class Magistrate Court, Pala and ``` ``` later, the same was committed to the Sessions ``` ``` Court, Kottayam. The trial of the said case was ``` ``` conducted before the Additional Sessions Court, ``` ``` Kottayam, as S.C.No.85/2005. ``` ``` 3.PWs.1 to 7 were examined in support of the ``` ``` prosecution case. Exhibits P1 to P19 were marked, ``` CRL.A. No.524 /2006 5 ``` and material objects 1 to 13 were identified. The ``` ``` contradictions in the statement of CW8/PW3 were marked as Exhibit D1 and D3, and the remand extension report dated 28.5.2002 of the accused ``` ``` persons was marked as Exhibit D2. After completion ``` ``` of the prosecution evidence, accused persons were examined under section 313 of the Code of Criminal Procedure (Cr. PC) and the incriminating materials brought out during the trial were put to all the accused persons. They denied the same and pleaded that they were falsely implicated in the said case. ``` ``` 4.After appreciating the materials placed on record, the learned Sessions Judge concluded that the 3rd accused is not guilty of any of the offences alleged against him and was acquitted. As ``` ``` regards accused Nos.1 and 2, who are the ``` ``` appellants herein, the learned Sessions Judge found them guilty of the offence under section ``` CRL.A. No.524 /2006 6 ``` 489C r/w. 34 of the IPC and found them not guilty under section 489B of the IPC. Accordingly, the appellants were sentenced to undergo rigorous imprisonment for two years each and to pay a fine of Rs.2,000/- each under section 489C r/w. 34 of IPC with a default sentence to undergo simple imprisonment for three months. This appeal is filed challenging the conviction and sentence imposed against the appellants. ``` ``` 5.Heard Sri.T.D.Robin, the learned counsel for the appellant and Sri.Sudheer Gopalakrishnan, ``` ``` the learned Public Prosecutor for the Stae. ``` ``` 6.The learned counsel for the appellants submits that the prosecution miserably failed to establish the guilt of the accused. It is ``` ``` specifically pointed out that the crucial evidence that was relied on by the prosecution is that of PWs.1 and 2, who are Circle Inspector of Police and Sub Inspector of Police. There are certain ``` CRL.A. No.524 /2006 7 ``` material contradictions between their evidence as to the manner in which the seizure of the articles and the arrest of the appellants were affected. Besides the same, there are serious discrepancies and embellishments in their evidence about the details of the information received by PW1 based on which they conducted the search. It is also pointed out that there is no proper corroboration of the evidence of PWs.1 and 2. It was also ``` ``` contended that the evidence given by PW3, which was relied on by the prosecution as an independent witness, was not trustworthy. The further contention was that there was a delay in recording the statement of PW3 by the investigation officer. It is also pointed out that, even if it is assumed for the argument's sake that articles were seized from the possession of the accused persons, that by itself is not sufficient to hold the appellants guilty as there is nothing to indicate their ``` CRL.A. No.524 /2006 8 ``` conscious possession over the article. ``` ``` 7.On the other hand, the learned Public ``` ``` Prosecutor would oppose the aforesaid contentions. It is pointed out that the evidence of official witnesses viz. The evidence of PW3, an independent ``` ``` witness, corroborated the evidence of PWs. 1 and ``` ``` 2. The contemporaneous documents, such as Exhibit P1 search memorandum, Exhibit P2 seizure mahazar, ``` ``` Exhibit P3 FIR, and the evidence of PWs.1 to 3, ``` ``` would establish the prosecution case beyond reasonable doubt. In such circumstances, there is no interference in the findings of the learned Sessions Judge is warranted, contends the learned Public Prosecutor. ``` ``` 8.I have gone through the records. One of the crucial contentions raised by the learned counsel for the appellants is concerning the inconsistency in the evidence of PWs.1 and 2. PW1 is the Circle Inspector of Police, Pala, and his evidence is to ``` CRL.A. No.524 /2006 9 ``` the effect that on 6.2. 2002 at about 1.30 p.m., he got an information that the accused persons were at Zodiac Bar at Uzhavoor, and they were in possession of counterfeit currency notes. ``` ``` Immediately thereafter, as there was no time to obtain a search warrant from the court, he ``` ``` prepared a search memorandum and sent the same to the court. Exhibit P1 is the said search memorandum, and thereafter, he, along with PW2 Sub ``` ``` Inspector of Police, Kuravilangadu and the police party went to the Zodiac Bar, where they could ``` ``` find the accused persons sitting in the bar hotel. ``` ``` Upon approaching the 1[st] accused, he immediately handed over the plastic cover, which contained an endorsement ‘Munch’, to the 2[nd] appellant, who in ``` ``` turn tried to move away from the place. However, both of them were apprehended, and the bag was inspected. Thereupon, they could recover counterfeit currency, as mentioned above. ``` CRL.A. No.524 /2006 10 ``` 9.PW2 is the Sub Inspector of Police, Kuravilangadu Police Station, who accompanied PW1 while conducting the search and affecting the arrest of the accused persons. His evidence is more or less the same to that of PW1. No inconsistency is seen in his evidence, but the only difference is that even though PW2 had stated that, upon being interrogated, the 1st appellant handed over the plastic cover to the 2nd appellant, he did not mention that the 2nd appellant attempted to move away from the place, and instead, he stated that the plastic cover was examined by PW1. Even though the learned counsel for the appellants highlighted the same as a inconsistency in their depositions, I am of the ``` ``` view that this is not a serious aspect which affects the credibility of the said witnesses. The learned counsel for the appellants vehemently contends in this regard by placing reliance upon ``` CRL.A. No.524 /2006 11 ``` the fact that, in the statement given by PW1 to the investigating officer (PW6), he had not stated ``` ``` about the fact that, at the time of questioning the 1st appellant, he handed over the plastic cover to the 2nd appellant who in turn attempted to move away from the spot. Therefore, it is pointed out that the evidence of PW1 cannot be believed at all. The learned counsel for the ``` ``` appellants relies on the decision rendered by the ``` ``` Hon’ble Supreme Court in Sukhram v. State of M.P. [AIR 1989 SC 772]. Another decision rendered by the Madhya Pradesh High Court in Neeraj v. State of M.P. The principles laid down in the aforesaid decisions are with regard to the inconsistency in the evidence of two witnesses, and it was observed that when the witness has not been treated as hostile by the prosecution, discrepancies in their evidence have serious ramifications as regards the prosecution case. When I apply the principles laid ``` CRL.A. No.524 /2006 12 ``` down in the decisions referred above to the facts and circumstances of this case, I am unable to find any specific discrepancy in the evidence of PWs.1 and 2. The only difference, as mentioned above, is that PW2 has not reiterated some parts of the statement given by PW1. But merely because of that reason, it cannot be treated as an inconsistency as such. As rightly pointed out by the learned counsel for the appellants, the statement of PW1 is to the effect that upon handing over the plastic cover to the 2nd appellant, he attempted to move away from the place. Such a statement is not made by PW2. However, merely because of that reason, the ``` ``` evidence of these witnesses cannot be discarded as ``` ``` such. This is mainly because contemporaneous documents such as Ext.P1 search memorandum, Ext.P2 seizure mahazar and Ext.P3 FIR contain statements ``` ``` to that effect. It is also true that such a ``` CRL.A. No.524 /2006 13 ``` statement is not there in the Section 161 ``` ``` statement given by PW1 to PW6. However, as is ``` ``` revealed from Exts.P1 to P3 right from the ``` ``` inspection, the specific case of the prosecution ``` ``` was to the effect that upon being questioned, the ``` ``` 1st accused handed over the plastic bag to the 2nd ``` ``` accused, who in turn attempted to move away from ``` ``` the place immediately thereupon. Therefore, I do ``` ``` not find any reason to discard the evidence of PW1 ``` ``` with respect to this. This is mainly because the evidence of PW2 supports the version of PW1 upto ``` ``` the stage where the 1st accused had handed over ``` ``` the plastic cover to the 2nd accused. Thus, when ``` ``` all the aspects are considered, I do not find any ``` ``` discrepancy in the evidence of PWs.1 and 2, and ``` ``` therefore the contention put forward by the ``` ``` learned counsel for the appellants in this regard is not legally sustainable. ``` ``` 10.There is yet another aspect which fortifies ``` CRL.A. No.524 /2006 14 ``` the view taken above. PW3 is the Manager of the ``` ``` Bar, and his evidence is that on 6.2.2002, he ``` ``` found PWs.1 and 2 entering the bar, and when he reached inside the bar, he found that the appellants were being questioned. He also witnessed the recovery of the articles, and he is ``` ``` a party to Exhibit P2 mahazar and signed it. He ``` ``` supported the case of the prosecution. Thus it is evident that PW3 corroborates the evidence of PWs. ``` ``` 1 and 2 to a greater extent. ``` ``` 11.Another contention put forward by the learned counsel for the appellants is concerning the delay in recording the statement of PW3. It is pointed out that the statement of PW3 was taken ``` ``` three months after the incident. Reliance was also placed on the decision rendered by the Hon’ble Supreme Court in Bhagwan and another v. State of ``` ``` M.P.[AIR 1980 SC 1750]. However, the factual ``` ``` circumstances under which the decision rendered by ``` CRL.A. No.524 /2006 15 ``` the Hon’ble Supreme Court differs from that of this case. That was a case in which the statement of one of the crucial eyewitnesses was recorded much belatedly, which compelled the Hon’ble Supreme Court to make such observations. However, the said judgment was rendered on the factual ``` ``` circumstances of that case. As far as the factual ``` ``` situation, in this case, is concerned, the crucial ``` ``` aspect to be noticed is that accused persons were caught red-handed along with counterfeit currency notes. The seizure of articles and the arrest of the accused persons were established by the evidence of PWs.1 and 2 coupled with the ``` ``` contemporaneous documents such as Exts.P1 and P2. ``` ``` The deposition of PW3 is a corroborative piece of evidence supporting the version of Pws 1 and 2. ``` ``` Considering the materials placed on record, I do not find that the delay in recording the statement of PW3 is a serious discrepancy which warrants ``` CRL.A. No.524 /2006 16 ``` interference in the finding entered by the learned Sessions Judge. This is mainly because, in the light of the contemporaneous documents referred to above and the evidence of PWs.1 and 2, the possibility of getting a manipulated statement of PW3 is much less and therefore, I do not find any reason to accept the contention raised by the learned counsel for the appellants in this regard. Even though the learned counsel for the appellants contended that PW3 could not be treated as an independent witness, there are no materials which affect his independent status as a witness. Similarly, the learned counsel for the appellants also raised a contention about the credibility of PW6, the investigating officer who conducted a substantial part of the investigation. It was contended that he was a person accused of a heinous offence and was later found guilty. However, even if the criminal background of PW6 is ``` CRL.A. No.524 /2006 17 ``` accepted, that by itself cannot be a reason to hold that the investigation conducted by him is liable to be discarded as such. In this case, the prosecution case is established by the evidence of Pws.1 and 2, the police officers, who detected the offence. Their evidence is corroborated by the evidence of PW3, and their version is further fortified by the contemporaneous documents such as Exhibits P1 and P2. In such circumstances, it is to be noticed that the mere fact that the officer who conducted the investigation has criminal antecedents cannot be a material aspect affecting the prosecution case. Thus, the aforesaid contention raised by the learned counsel for the appellants is also liable to be rejected. ``` ``` 12.The further contention of the learned counsel for the appellants is concerning the conscious possession of the articles by the accused persons. In this regard, the learned ``` CRL.A. No.524 /2006 18 ``` counsel for the appellants places reliance upon the judgment rendered by the Hon’ble Supreme Court in M.Mammutti v. State of Karnataka [AIR 1979 SC 1705]. It is true that in the said decision, the Hon’ble Supreme Court has categorically held that mere possession of counterfeit currency notes by itself cannot be treated as ground to hold the accused guilty of the offence under section 489B or 489C of IPC. It is observed therein that if a ``` ``` mere look at them would convince anybody that they were fake notes, it could be presumed that the accused had knowledge or reason to believe they were counterfeit currency notes. It was pointed out by the learned counsel for the appellants that there is nothing in this case to indicate the characteristics of the currency are such that, a mere look would convince any person of ordinary intelligence that it was a fake currency note. Therefore, unless the prosecution clearly ``` CRL.A. No.524 /2006 19 ``` establishes the knowledge of the appellants with regard to the fakeness of the currency notes, no conviction could be sustained, contends the learned counsel for the appellants. Indeed, Pws.1 ``` ``` and 2 have not mentioned in their depositions that a mere look at the currency note would make any person of ordinary intelligence understand the falseness of currency notes. However, there are certain other glaring aspects which indicate the knowledge of the appellants as to its fakeness. It ``` ``` is discernible from the materials placed on record ``` ``` that at the time of the seizure of counterfeit notes, the same were kept concealed in a plastic cover held by the 1[st] accused, even though he was carrying a purse, which contained an original currency note of Rs.100/-. Immediately upon being questioned, the 1[st] accused handed over the plastic cover to the 2[nd] accused, who attempted to flee from the said place. When all these aspects are ``` CRL.A. No.524 /2006 20 ``` considered, it pinpoints the knowledge of the ``` ``` accused persons regarding the false nature of the currency notes. Besides the same, in the bag containing the MO1 and MO2 series of currency ``` ``` notes, no genuine currency notes were kept. Thus, ``` ``` it is evident that the appellants were possessing the said currency notes with the specific knowledge of its fakeness, and the contentions raised by the learned counsel for the appellants are only to be rejected. ``` ``` 13.Thus, from all the above aspects, it is evident that the prosecution was able to establish the case against the appellants as far as the ``` ``` offence under section 489C of IPC is concerned, ``` ``` beyond any reasonable doubt. As mentioned above, ``` ``` the evidence of Pws.1 and 2 establishes the ``` ``` sequence of events that led to the recovery, which ``` ``` is corroborated by the evidence of PW3. Exhibits ``` ``` P1 to P3, which are contemporaneous documents, ``` CRL.A. No.524 /2006 21 ``` supports their version. Currency notes were found ``` ``` to be counterfeit as per Ext.P14 report of the ``` ``` expert. Thus all the ingredients of the offence ``` ``` under section 489C IPC are established. ``` **==> picture [484 x 50] intentionally omitted <==** ``` dismissed by confirming the conviction and ``` ``` sentence imposed by the learned Additional ``` ``` Sessions Judge, Kottayam, in S.C.No.85/2005. ``` ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. JUDGE ``` ``` pkk ```