Shanavas v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 11[TH] DAY OF AUGUST 2023 / 20TH SRAVANA, 1945 CRL.REV.PET NO. 337 OF 2016 ``` ``` CRA 687/2014 OF ADDITIONAL DISTRICT AND SESSIONS COURT KOZHIKODE-III CC 145/2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS -V,KOZHIKODE ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` SHANAVAS AGED 40 YEARS S/O. SAIDALAVI, THOTTOLIL HOUSE, FEROKE AMSOM, KODAMPUZHA, FEROKE, KOZHIKODE. BY ADV SRI.P.V.ANOOP ``` ## **`RESPONDENT/COMPLAINANT & STATE:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. ``` ``` BY SR.PUBLIC PROSECUTOR SRI.P.G.MANU ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27.07.2023, THE COURT ON 11.8.2023, DELIVERED THE FOLLOWING: ``` ``` Crl.R.P.NO.337 OF 2016 2 ``` ## **ORDER** Dated this the 11[th] day of August, 2023 This revision has been filed under Sections 397 and 401 of the Code of Criminal Procedure and the revision petitioner is the accused in C.C.No.145/2008 on the files of the Judicial First Class Magistrate Court-V, Kozhikode. The revision petitioner/accused assails judgment of conviction and sentence imposed by the learned Magistrate, as per judgment, dated 14.11.2014 and the judgment of Sessions Court, Kozhikode, in Crl.Appeal No.687/2014, dated 18.1.2016 arose therefrom. 2. The respondent herein is the State of Kerala, represented by the learned Public Prosecutor. 3. Heard the learned counsel for the revision petitioner as well as the learned Public Prosecutor. 4. The parties in this revision will be referred hereinafter as ‘prosecution’ and ‘the accused’ for convenience. 5. Brief facts of the case: ``` Crl.R.P.NO.337 OF 2016 3 ``` The prosecution case is that, around 2.00 a.m. on 31.7.2000, the accused herein committed theft of a telephone coin collection box along with the money therein, installed in a building at Kodampuzha – Thottungal town. Accordingly, the prosecution would allege that the accused herein committed offence punishable under Section 379 of the Indian Penal Code. 6. The learned Magistrate secured the presence of accused and ventured the matter. During trial, PWs 1 to 10 were examined and Exts.P1 to P3 and MO1 marked. On completion of the prosecution evidence, the accused was questioned under Section 313(1)(b) of the Cr.P.C. and opportunity was provided to him, to adduce defence evidence, but no defence evidence was adduced. 7. The learned Magistrate appreciated the evidence, on hearing both sides, and found that the accused was guilty for the offence punishable under Section 379 of the Indian Penal Code. Accordingly, he was convicted and sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.10,000/-. In default of payment of fine, simple ## **`Crl.R.P.NO.337 OF 2016 4`** imprisonment for three months also was imposed and if the fine amount is realised, Rs.9,000/- was ordered to be given to the telephone department. The benefit of set off was also given. MO1, telephone coin box was ordered to be given to the telephone department. 8. The accused challenged the conviction and sentence imposed by the trial court before the appellate court. The learned Sessions Judge confirmed the conviction and modified the sentence and reduced the rigorous imprisonment for a period of six months, as per judgment, dated 18.1.2016. 9. While assailing concurrent verdicts of conviction imposed by the trial court as well as the appellate court and the modified sentence imposed by the appellate court, it is argued by the learned counsel for the accused that, in this case, the prime evidence relied on by the courts below to enter upon conviction and sentence is the recovery effected, as provided under Section 27 of the Indian Evidence Act, 1872. According to her, eventhough, the colour of the coin box, which was alleged to be thieved by the accused is red, the recovered item is yellow in colour. Therefore, MO1 ## **`Crl.R.P.NO.337 OF 2016 5`** recovered, at the instance of the accused, is not the stolen item. In such view of the matter, the recovery effected in this case in the midst of doubts. Further, the recovery evidence is not corroborated by any other evidence and therefore, based on recovery, which is in doubt, courts below went wrong in recording conviction and sentence. 10. In support of this contention, the learned counsel for the accused placed a Division Bench decision of this Court in **Muhammed Yousaf @ Sajid and Another** v. **State of Kerala** , reported in **[2022 KHC 136]** and pointed out paragraph No.19.10 of the judgment. As per paragraph No.19.10, in the said case, the Division Bench found that the prosecution story about recovery of MO1 series, MO3, MO4 and MO5, consequent to the disclosure statement of accused Nos.1 and 2 in the said case, was not believable and accused No.2 had given probable explanation for cash recovered from his house. On perusal of the judgment, the ratio laid down therein is available in paragraph No.19 of the judgment. In paragraph No.19, the Division Bench held that, merely on the basis of a fact discovered on the confession of an accused ## **`Crl.R.P.NO.337 OF 2016 6`** while in police custody, the prosecution could not seek his conviction without establishing other corroborating circumstances beyond any pale of dispute and the ratio is that, when the recovery is found to be believable, conviction and sentence can be imposed if the recovery is supported by corroborated piece of evidence. 11. The learned Public Prosecutor argued that the occurrence was in July 2000 and recovery was effected as per the disclosure statement given by the accused after seven months and the trial court appraised these facts and found that the change in colour to MO1, if any, is because of the time gap and therefore, recovery need not be doubted. It is also argued further that, apart from the evidence of PW6, the Investigating Officer, PW4, an independent witness given evidence in support of the recovery, supported by the evidence of PW7, the Police Constable, who also accompanied PW6 and at the time of recovery also, signed in the recovery mahazar. It is also pointed out by the learned Public Prosecutor that, apart from the recovery, PW1 and PW3 categorically given evidence in support of the theft by identifying MO1 before the ## **`Crl.R.P.NO.337 OF 2016 7`** court as the thieved coin box and acting on the said evidence, the trial court as well as the appellate court entered into conviction and consequential sentence. Therefore, the same do not require an interference, is the submission of the learned Public Prosecutor. 12. While appraising the rival contentions, I am inclined to refer Ext.P2 recovery mahazar. As per Ext.P2 supported by the evidence of the Investigating Officer, who was examined as PW6, it has been stated that, the recovered item is _USE ONLY NEW ONE RUPEE COINS, PRE-PAYMENT – TYPE, TELECOM FACTORY, MUMBAI – 400088 with endorsement TELECOM FACTORY MUMBAI, with a sticker, CBT – 95, S.No.15299/99 and inside the box, there is a number 8936/12/11 written in red letter and the same was a broken box, having yellow colour._ 13. As far as the colour of the box is concerned, PW4 stated during cross examination that, he did not remember the colour, whereas, PW7 given evidence that the same is yellow in colour and the recovery was as pointed out by the accused. The recovery is at the instance of PW6, on the basis of ## **`Crl.R.P.NO.337 OF 2016 8`** disclosure statement given by the accused and PW6 denied recovery of a red box and his statement is that ‘the recovered item is an yellow box’. 14. The learned counsel for the accused argued that the colour of the stolen coin box is red, whereas, the recovered coin box, as per Section 27 of the Evidence Act, is an yellow coloured coin box and therefore, MO1 recovered at the instance of the accused, is not the stolen item, and as such, the recovery is in doubt. Therefore, the said evidence cannot be relied on. 15. Insofar as the colour of the MO1 box is concerned, the narration in Ext.P2 recovery mahazar, the evidence given by PW7, the witness to the recovery and PW6, the Investigating Officer, who led the recovery, is yellow and not red. But, it is narrated in Ext.P2 that inside the box, a number, viz., 8936/12/11, was written in red letter. According to the learned counsel for the accused, when PW10 was cross examined, only one question was asked, and as per which, it was deposed by PW10 that, as per the statements of the witnesses, a box, having red colour was recovered. In this ## **`Crl.R.P.NO.337 OF 2016 9`** connection, it is relevant to note that no investigation carried by PW10 and he did not record statements of any witnesses and his knowledge regarding the colour of the stolen coin box is on the basis of the prosecution records. On perusal of the evidence of PW10, he had received the report regarding the arrest of the accused and recovery of the property and thereafter, he had filed the final report. He did not participate either in the recovery and in the preparation of mahazar. It is surprising to note that none of the prosecution records would suggest that MO1 is ‘red’ in colour. In fact, the colour of the stolen coin box and the colour of MO1 is not red, but the same is yellow as described in Ext.P2 and statement by PW7. In fact, the evidence of PW10 could not be the basis to hold that the stolen box was red, since the prosecution witnesses PW6 and PW7 categorically given evidence otherwise and MO1 is in tune with the description, as has been stated in Ext.P2. Apart from that, PW1 and PW3, being officials of the Department also deposed about the theft and identified MO1, as the stolen coin box, with certainty. 16. Yet another argument advanced by the learned ## **`Crl.R.P.NO.337 OF 2016 10`** counsel for the accused is that, _it is necessary for the benefit of both the accused and the prosecution, the information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence_ and if the said aspects are lacking, recovery evidence could not be believed. 17. In this connection, the learned counsel for the accused placed decision decision of the Apex Court in **Boby** v. **State of Kerala** reported in [ **2023 LiveLaw (SC) 50]** . In the said decision, the Apex Court referred decision in **Suresh Chandra Bahri** v. **State of Bihar** reported in **[1995 Supp. (1) SCC 80]** (Paragraph Nos.31 to 33) and held that, _the two essential requirements for the application of Section 27 of the Evidence Act are that (1) the person giving information must be an accused of any offence and (2) he must also be in police custody. The Court held that the provisions of Section 27 of the Evidence Act are based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and consequently the said information can safely be allowed_ ## **`Crl.R.P.NO.337 OF 2016 11`** _to be given in evidence._ In **Boby** ’s case (supra), the Apex Court also considered its earlier decision in **State of Karnataka** v. **David Rozario and Another** reported in [ **(2002) 7 SCC 728].** In the said decision, the Apex Court held as under: _"5. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and the prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence.”_ ## **`Crl.R.P.NO.337 OF 2016 12`** 18. Repelling this contention, the learned Public Prosecutor placed decisions of the Apex Court in **John Anthonisamy @ John** v. **State, Rep. by the Inspector of Police** reported in **[2023] 0 Supreme (SC) 42** , to contend that, when dead body was buried and was found after numbers of months, it may not be possible for the prosecution to prove that death was a homicidal death and Super imposition test and DNA test conduced on bones and skull showing positive result would be sufficient to prove that the dead body was that of the person alleged to be murdered. Another decision in **Jafarudheen & Ors.** v. **State of Kerala** reported in **[2022] 0 AIR (SC) 3627** , also placed, after referring Paragraph No.30 of the judgment. Paragraph No.30 of the said judgment is extracted hereunder: _“30. Section 27 of the Evidence Act is an exception to Sections 24 to 26. Admissibility under Section 27 is relatable to the information pertaining to a fact discovered. This provision merely facilitates proof of a fact discovered in consequence of information received from a person in custody, accused of an offense. Thus, it incorporates the theory of "confirmation by subsequent facts" facilitating_ ## **`Crl.R.P.NO.337 OF 2016 13`** _a link to the chain of events. It is for the prosecution to prove that the information received from the accused is relatable to the fact discovered. The object is to utilize it for the purpose of recovery as it ultimately touches upon the issue pertaining to the discovery of a new fact through the information furnished by the accused. Therefore, Section 27 is an exception to Sections 24 to 26 meant for a specific purpose and thus be construed as a proviso.”_ 19. In the instant case, on perusal of the evidence of PW6, the S.I. of Police, Kasaba Police Station, during 2001, had recovered MO1, based on the disclosure statement given by the accused. During his chief examination, it has been specifically stated that, _“_ ടെലിഫ ോൺബ ോകസഞാന ൊരുകിണറ്റിലിട്ടു _._ കൂട്ടിക്കൊണ്ടുപ ോയാൽആയത്എടുത്തുതരാം _.”_ Based on the disclosure statement, PW6 followed the accused and subsequently, at his instance, MO1 coin box was taken from a well, situated in the compound of Union Package, Ramanattukara. In fact, no serious cross examination effected to make the recovery not reliable as the recovery of MO1 is in doubt. In this matter, as I have already pointed out, the stolen article MO1 was recovered at the instance of the accused, ``` Crl.R.P.NO.337 OF 2016 14 ``` based on his disclosure statement, as discussed hereinabove, within the mandate of Section 27 of the Indian Evidence Act, 1872 and the said recovery is well corroborated by the evidence given by PW1 and PW3, after identifying MO1 as the coin box thieved away. In view of the above discussions, none of the challenges raised by the accused to upset the conviction imposed by the trial court as well as the appellate court and the sentence modified by the appellate court, in any manner, by exercising the limited power of revision. Therefore, this revision must fail. Accordingly, the same stands dismissed. Sd/- ## **A. BADHARUDEEN** **JUDGE** Bb