Kunhiraman @ Kunhirama Kurup Narayana Kurup v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 2[ND] DAY OF FEBRUARY 2024 / 13TH MAGHA, 1945** **CRL.APPEAL NO. 635 OF 2011** **AGAINST THE JUDGMENT DATED 28.03.2011 IN SC 596/2009 OF THE ADDITIONAL SESSIONS COURT-II, KOZHIKODE** ## **APPELLANT/ACCUSED:** **KUNHIRAMAN @ KUNHIRAMA KURUP NARAYANA KURUP, AGED 63 YEARS, VENGOLI HOUSE, KINALOOR AMSOM, MUNDUKKARA DESOM, BALUSSERY, KOZHIKODE.** **BY ADV SRI.SANTHARAM.P** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SMT.PUSHPALATHA MK, SR.PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 02.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.635 of 2011 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.Appeal No.635 of 2011 ----------------------------------------------------------Dated this the 2[nd] day of February, 2024** ## **JUDGMENT** The appellant is the accused in S.C.No.596 of 2009 on the files of the Sessions Court, Kozhikode. The II Additional Sessions Judge, Kozhikode who tried the appellant on a charge under Sections 489B and 489C of the Indian Penal Code, 1860 (IPC) found him guilty of the offence under Section 489C alone. He was sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.50,000/-. The said judgment of conviction and the order of sentence are under challenge in this appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (Code). 2. The allegations against the appellant were the following: At about 07.45 p.m., on 27.03.2005, the appellant purchased bed sheets worth Rs.150/- from PW1, a street 3 Crl.Appeal No.635 of 2011 vendor selling clothes near Colombo Stores in S.M.Street, Kozhikode and gave a 500 rupee note for payment of its price. That currency note was found to be fake, which resulted in an altercation. As informed, the police reached and took the appellant and one C.V.Kareem to the police station. In the search conducted subsequently, currency notes of 100, 500 and 1000 rupee denominations were seized from house bearing door No.11/505 of Panangad Panchayat which belongs to the appellant. Those currency notes were found to be counterfeit and thus the appellant is said to have committed the aforesaid offences. 3. On a charge for the offences under Sections 489B and 489C of the IPC, the appellant was tried before the court below. PWs.1 to 16 were examined, Exts.P1 to P17 were marked, and MOs.1 to 3 were identified. During the examination under Section 313(1)(b) of Code, the appellant denied all the incriminating circumstances. He further stated that on 27.03.2005 he purchased two bed sheets from a street vendor for Rs.150/- and delivered a 500 rupee note. 4 Crl.Appeal No.635 of 2011 The street vendor on the pretext of getting change went to a nearby shop and on returning, another note was handed over that ensued in an altercation and the initiation of the case. He, along with Kareem was taken into custody by the police, and the currency note was seized by the police. He is innocent whereas, in order to save the said Kareem, this case was foisted. It is further stated that the house from where the currency notes were seized did not belong to him as he sold it to one Biju much earlier. 4. No defence evidence except a contradiction, Ext. D1 was let in. The court below, after considering and appreciating the evidence, found the appellant not guilty of the offence under Section 489B of the IPC, but found him guilty of the offence under Section 489C of the IPC. The court below found that the evidence tendered by the prosecution was insufficient to prove that the appellant used a counterfeit note as alleged in the charge. The court below, however, held that the evidence tendered through PWs.4, 5 and 12 together with the attending circumstances proved beyond doubt that 5 Crl.Appeal No.635 of 2011 the appellant possessed counterfeit currency notes of 100, 500 and 1000 rupee denominations. 5. Heard the learned counsel for the appellant and the learned Public Prosecutor. 6. The learned counsel for the appellant would submit that one C.V. Kareem was also arrested along with the appellant at 07:30 p.m., on 27.03.2005 from the S.M.Street and a bag in his possession was seized at that time. However, the said C.V. Kareem was not implicated as an accused or arrayed as a witness. What was the role of C.V. Kareem is not reflected from the evidence and that glaring suppression probabilised the defence plea that the prosecution has manipulated the evidence and falsely implicated the appellant in the case. It is contended that when such a serious doubt arose about the very genesis of the case, the prosecution was bound to fail. 7. The learned counsel for the appellant further would submit that house No.11/505 of Panangad Panchayat from where recovery of MOs.1 to 3 currency notes were effected is 6 Crl.Appeal No.635 of 2011 not proved to be an enclosed structure and belonged to the appellant. There is no independent evidence to support the oral testimony of PW12 with regard to the said recovery. Both PWs.4 and 5, who were the attestors to Ext.P5 Mahazar under which MOs.1 to 3 were recovered, did not support the prosecution. So, the evidence of PW12 cannot be based for a conviction. When the genesis of the case is shrouded by suspicion, the oral testimony of PW12 cannot be given credence. Further, PW11 the Secretary of the Panangad Panchayat could not convincingly depose before the court that the said house belongs to and was in the possession of the appellant. The certificate he issued, Ext.P13, was pertaining to the number assigned for the purpose of election and that does not prove the ownership of the appellant. In fact, the building was already alienated by the appellant and he was residing in the house of his sister. The court below did not consider those aspects of the matter and wrongly held that the said building was in the possession of the appellant and further that recovery of MOs.1 to 3 was connected to the appellant. The 7 Crl.Appeal No.635 of 2011 learned counsel accordingly would submit that the conviction of the appellant is totally wrong and liable to be set aside. 8. The learned Public Prosecutor, on the other hand, would submit that only because C.V. Kareem went abroad and was not available, he could not be examined as a witness. It was on the basis of the confession of the appellant, MOs.1 to 3 were seized. Since the evidence tendered by the prosecution in that regard is convincing, lack of evidence with respect to the recovery of the 500 rupee note, which the appellant handed over to PW1 does not affect the remaining evidence. In the view of the learned Public Prosecutor, the findings leading to the conviction of the appellant are supported by sufficient evidence. 9. The court below disbelieved the evidence tendered by the prosecution as regards the use of 500 rupee note by the appellant while purchasing bed sheets from PW1. Evidence of PW1 or PW2 does not prove those allegations as both of them turned hostile to the prosecution. There remains no evidence in order to show that the appellant tendered a counterfeit 500 8 Crl.Appeal No.635 of 2011 rupee note while purchasing the bed sheets. It was after the altercation said to have taken place, the police reached the place and took the appellant and Kareem into custody. Therefore, the finding of the court below exonerating the appellant from the accusation of usage of a fake currency note is the result of either a defective investigation or the inability of the prosecution to bring on record evidence. Either be the case, that cannot affect the rest of the evidence, if found reliable. 10. The Apex Court in **State of Karnataka v. Yarappa Reddy [(1999) 8 SCC 715]** held that even if the investigation is illegal or even suspicious, the rest of evidence must be scrutinised independently of the impact of it. The Apex Court reminded that, otherwise, criminal trials will plummet to the level of the investigating officer ruling the roost. Hence, I shall consider whether the rest of the evidence is reliable. 11. PW12 categorically deposed before the court regarding the seizure of currency notes from house No.11/505 of Panangad Panchayat. Ext.P5 is the seizure mahazar. 9 Crl.Appeal No.635 of 2011 Statement of the appellant that led to the recovery of MOs.1 to 3 is extracted in Ext.P5. On the basis of that statement, PW12 had taken the appellant to the house bearing door No.11/505 Panangad Panchayat. He testified that from beneath a wooden cot inside that house, currency notes of 100, 500 and 1000 rupees denominations were recovered. Descriptions of currency notes recovered are stated in Ext.P5. There were 92 numbers of 1000 rupee notes, 85 numbers of 500 rupee notes and 76 numbers of 100 notes. Those notes were identified as MOs.1 to 3 respectively before the court by PW12. All the details of the said recovery are stated in Ext.P5, a contemporaneous document prepared by PW12. 12. PWs.4 and 5 are the witnesses to Ext.P5. They did not support the case of the prosecution. PW4 stated that he did not see the police taking the appellant to the house for recovery or going back, but he admitted having signed Ext.P5. PW5, however, stated that he saw the police leaving the house of the appellant along with him. It was at that time he signed Ext.P5 mahazar. He denied having seen the police seizing 10 Crl.Appeal No.635 of 2011 currency notes from that house. Thus the evidence of PWs.4 and 5 does not support the version of PW12 in regard to the recovery of MOs.1 to 3 from that house. However, their evidence rendered support to the version of PW12 that he along with the appellant he reached that house. When Ext.P5, which contains the whole narration of the recovery, supports the oral testimony of PW5, in the light of the evidence of PWs.4 and 5 to the extent of his reaching the house along with the appellant proves the case of the prosecution that such a recovery was effective from that house. 13. Of course, the evidence of PW11 is not that convincing and insufficient to establish that the house was owned by the appellant. But the evidence tendered by the prosecution has established that as led by the appellant PW12 reached that house and recovered MOs.1 to 3 from there. That becomes relevant under Section 27 of the Evidence Act, 1872. The information revealed by the appellant while in custody of PW12 only enabled the recovery which established his authorship of concealment. 11 Crl.Appeal No.635 of 2011 14. The learned counsel for the appellant would submit that the evidence is insufficient to prove that the appellant was in exclusive possession of the said house and therefore, the recovery cannot be acted upon. That contention cannot be accepted inasmuch as evidence is sufficient to prove the appellant's custody of MOs.1 to 3. In view of that the findings of the court below that the accused possessed MOs.1 to 3 is not liable to be interfered. There is no contest as to the fact that MOs.1 to 3 were counterfeit notes. When that quantity of counterfeit notes were possessed by the appellant, the obvious inference is that he possessed the same intending it to be used as genuine. Therefore, his conviction for the offence under Section 489C of the Indian Penal Code is liable only to be confirmed. 15. The appellant was sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.50,000/-. Having regard to the circumstances of the appellant, the long delay in conclusion of the proceedings and the age of the appellant (77 years), I am of the view that 12 Crl.Appeal No.635 of 2011 modification of the sentence is called for. Hence, the appellant is sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.25,000/-. In default of payment of fine, the petitioner shall undergo rigorous imprisonment for a period of two months. The period eligible for set off under Section 428 of the Code is allowed. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 13 Crl.Appeal No.635 of 2011 ## **APPENDIX OF CRL.A 635/2011** **PETITIONER ANNEXURES Annexure A1 RATION CARD OF THE APPELLANT ISSUED FOR THE PERIOD OF 2003 TO 2006 Annexure A2 SALE DEED EXECUTED BY PETITIONER ON 26.11.2003**