SREEKUMAR SREENILAYAM v. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 22[ND] DAY OF JULY 2021 / 31ST ASHADHA, 1943 ``` ``` CRL.A NO. 1339 OF 2006 ``` ``` AGAINST THE JUDGMENT DATED 27.06.2006 IN SC 72/2006 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, KOTTAYAM ``` ## **`APPELLANT/ACCUSED:`** ``` SREEKUMAR SREENILAYAM, BUDHANOOR EAST, ENNAKKATTU, CHENGANNOOR. ``` ``` BY ADVS. SRI.P.N.SUKUMARAN SRI.P.P.PRAVEEN ``` ## **`RESPONDENTS/COMPLAINANT/STATE:`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.`** - **`2 STATION HOUSE OFFICER KOTTAYAM EAST POLICE.`** ``` BY ADV PUBLIC PROSECUTOR SRI. M.S. BREEZ (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 22.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1339 OF 2006 2 ``` ## **K. BABU, J. =======================** Crl.A. No. 1339 of 2006 **======================= Dated this the 22[th] day of July, 2021** ## **JUDGMENT** The appellant is accused No.2 in Sessions Case No.72/2006 on the file of the Additional Sessions Judge, Fast Track (Ad Hoc- II), Kottayam. He was found guilty, convicted and sentenced under Section 411 IPC. He faces sentence of rigorous imprisonment for a term of one year under Section 411 IPC. 2. The prosecution alleged that on the night of 30.12.2001, a car bearing registration No.KL-5E-5911 was stolen from the possession of PW 2 by accused No.1 and entrusted it to the appellant. 3. Investigation commenced with the registration of Ext.P3(a) FIR on the basis of Ext.P3 FIS given by PW 2. The appellant was arrested on 15.03.2002 in another crime. He had confessed that accused No.1 had entrusted him a car bearing registration No.KL-07-Q-696 and he handed over it to PW 7 for monthly rent. PW 7 handed over the car to one Mr. Praveen. Based on the alleged confession statement of the appellant, PW 6 took him and Manoj to the ``` CRL.A NO. 1339 OF 2006 3 ``` workshop attached to the residence of PW 5 and recovered the car bearing registration No. KL-07-Q-696 as per Ext.P5 mahazar. 4. PW 6 later came to know that the car was stolen from a place within the jurisdiction of Kottayam East Police Station and hence he transferred the file relating to the case to that station. PW 8-Sub Inspector of Police, East Police Station, Kottayam, investigated the case and the final report was submitted before the Judicial First Class Magistrate Court, Kottayam. The case was committed to the Court of Sessions, Kottayam from where it was made over to the trial court. 5. On the appearance of the appellant, charges were framed against him for the offences punishable under Sections 380, 201 and 413 read with 34 IPC. He pleaded not guilty and therefore he came to be tried by the trial court for the aforesaid offences. 6. The evidence for the prosecution consists of the oral evidence of PWs 1 to 8 and Exts. P1 to P7. 7. After closure of the evidence on behalf of the prosecution the statement of the appellant under Section 313 of Cr.P.C was recorded. He pleaded innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there was evidence against the ``` CRL.A NO. 1339 OF 2006 4 ``` appellant and hence he was called upon to enter on his evidence and to adduce evidence if any, he may have in support thereof. The learned trial court after hearing the arguments from both sides found the appellant/accused No.2 guilty of the offence punishable under Section 411 IPC and he was convicted thereunder. He was acquitted of the offences under Sections 380 read with 34 IPC and 201 IPC. He was also not found guilty under Section 413 IPC. 8. The appellant/accused was sentenced to undergo rigorous imprisonment for a period of one year under Section 411 IPC. 9. The learned counsel for the appellant and the learned Senior Public Prosecutor advanced their arguments. 10. The learned counsel for the appellant contended that the prosecution has failed to establish the ingredients for attracting offence under Section 411 IPC against the appellant. The learned counsel for the appellant further contended that the Sessions Judge relied on inadmissible portions of the evidence of the prosecution witnesses to enter into a conviction. 11. The learned Senior Public Prosecutor, per contra, submitted that the prosecution established the charge against the ``` CRL.A NO. 1339 OF 2006 5 ``` accused/appellant. 12. The appellant faces charge under Section 411 IPC. In order to establish the offence under Section 411 IPC, the prosecution has to prove, - _(1) that the property was stolen,_ - _(2) that it was dishonestly received or retained by the accused,_ - _(3) that the accused knew or had reason to believe that the property was a stolen property, and_ - _(4) that some person, other than the accused, was in the possession of the stolen property before the accused obtained possession._ 13. The learned counsel for the appellant, firstly, contended that the prosecution failed to establish that the property involved in this case, a car bearing registration No.KL-05-E-5911, was stolen. The learned counsel contended that the trial court recorded the finding that the car involved was stolen based on the solitary evidence of PW 2. He gave evidence that on 30.12.2001, between 1 a.m. and 6.00 a.m., the car bearing registration No.KL-05-E-5911 was stolen from the car porch attached to his residence at Parakkal Kadavu, Kottayam. The car, recovered based on the alleged confession of the appellant, was the one bearing registration No. KL-07-Q-696. The prosecution failed to produce any records relating to the vehicle allegedly stolen from the ``` CRL.A NO. 1339 OF 2006 6 ``` possession of PW 2 to establish that it remained in the possession of PW 2 at the relevant time. 14. The learned counsel for the appellant, secondly, contended that no admissible materials have been placed before the Court to establish that the car was stolen by accused No.1. The learned counsel for the appellant further contended that the learned Sessions Judge relied on Ext.P2, an information allegedly obtained from the appellant/accused, to record the finding that the car was stolen from the possession of PW 2 by accused No.1 and it was entrusted to him and that he handed over the car to PW 7 who later transferred it to Praveen from whom it eventually reached the hands of PW 5. The learned counsel would submit that the omnibus confession allegedly given by the appellant was attempted to be imported into evidence grossly disregarding the well established rules regarding admission of information under Section 27 of the Evidence Act. 15. Ext.P2, confessional statement recorded by PW 1, would show that the appellant while in the custody of PW1 had given information on 15.03.2002, that 2 months back as per his demand, the first accused had handed over to him a Maruthi 800 white car, bearing registration No.KL-07-Q-696. The appellant further informed PW1 that ``` CRL.A NO. 1339 OF 2006 7 ``` he had purchased the car for a sum of Rs.25,000/- and that later he mortgaged the same with Manoj (PW7) for a monthly rent of Rs.15,000/-. He further informed PW 1 that the said Manoj handed over the car to his cousin brother Mr.Praveen and that he could show the vehicle, if he was taken to the place where it was kept. The above referred information stated to have been given by the appellant has been incorporated in the evidence of PW 1 and PW 6. 16. The trial court has permitted PWs 1 and 6 to reproduce all what contained in Ext.P2 in substantive evidence on oath grossly disregarding the well established rules regarding admission of information under Section 27 of the Evidence Act. 17. The information furnished by an accused person in the course of his confession statement that he had concealed the stolen articles in a theft case by handing it over to another person/persons (instead of concealing them at a place) is perfectly admissible under Section 27 of the Evidence Act, provided the nexus between the concealed articles and the offence can be established and provided that inspiring assurance is available for the truth of the information furnished. (See: _Ayyappan v. State of Kerala [ 2005 CRI.L. J. 57_ ]) ``` CRL.A NO. 1339 OF 2006 8 ``` 18. The statement in Ext.P2 that the accused, while in custody, made a confession and based on that the car involved was recovered from the place of concealment can be proved, only in terms of Section 27 of the Evidence Act. 19. For convenience, Section 27 of the Evidence Act is extracted below:- ## **“** _**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 a 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.”_ Going by the facts, the appellant/accused, while in custody, confessed about the possession of the car by him and handing over of the same to Praveen and the eventual transfer of the car to PW5 from whom it was recovered. 20. The relevant question is whether the entire statement contained in Ext.P2 is admissible in evidence. It is well settled that Section 27 allows that part of the statement made by the accused to the police whether it amounts to a confession or not, which relates distinctly to the fact thereby discovered to be proved. Thus, even a ``` CRL.A NO. 1339 OF 2006 9 ``` confessional statement before the police which distinctly relates to the discovery of a fact may be proved under Section 27, it is only that part which distinctly relates to the discovery which is admissible. For the applicability of Section 27, two conditions are pre-requisites, namely, (i) the information must be such as has caused discovery of the fact and (ii) the information must relate distinctly to the fact discovered. It is now well settled principle of law that the recovery pursuant to the disclosure statement made by the accused under Section 27 of the Evidence Act is admissible in evidence. It is also settled that the Court must disregard the inadmissible part of the statement and take note only that part of his evidence, which distinctly relates to the discovery of the articles pursuant to the disclosure statement made by the accused. It is further settled that discovery of the fact in this connection includes the discovery of an object found, the place from which it is produced and the knowledge of the accused as to his existence. The legislature while incorporating Section 27, as an exception to Sections 24, 25 and 26 of the Evidence Act, was convinced of the quintessential purpose Section 27 would serve in an investigation process (vide: C.D.FIELD'S Commentary on Law of Evidence 14[th] Edition, pages 417 to 418). 21. In _**Saifudhin @ Tony and another v. State [ 2012 KHC 39 ]**_ the ``` CRL.A NO. 1339 OF 2006 10 ``` Division Bench of this Court held that Sections 24 to 26 of the Evidence Act mandate that an approach with care and caution must be adopted by the Court while considering evidence of statement made by accused person in custody of police officials. 22. The Division Bench further held that, the omnibus introduction of inadmissible portions into evidence is objectionable and only the truncated information which falls within the contours of Section 27 of the Evidence Act alone can be looked by the Court. 23. The evidence relied on by the prosecution to establish that the accused No.1 had stolen the property involved from the possession of PW 2 is also part of the omnibus confession stated to have been given by the appellant to PWs 1 and 6, which cannot be permitted to be adduced in evidence. 24. According to the prosecution, based on Ext.P2 confession PW 6 took the appellant, Sri Manoj (PW 7) and Sri.Praveen to the residence of PW 5 and recovered a car bearing registration No.KL-07Q-696. 25. The evidence available was that the car bearing registration No.KL-07-Q-696 was recovered from the car porch of the residence of ``` CRL.A NO. 1339 OF 2006 11 ``` PW 5 based on the information given by the appellant. 26. Is the available evidence sufficient to establish the ingredients of the offence punishable under Section 411 IPC to convict the accused ? As mentioned above, the prosecution even could not establish that the property involved in this case was originally possessed by PW 2 and the same was stolen by accused No.1 and entrusted to appellant/accused. In fact, the prosecution failed to establish that the vehicle involved was a stolen property. 27. The most relevant fact to be established by the prosecution as against the present accused is that, he had dishonestly received the car involved and retained the same. Apart from the inadmissible portion of the evidence of PWs 1 and 6 based on Ext.P2 confession, there is absolutely nothing to establish this fact. The further aspect to be proved is that the appellant/accused knew or had reason to believe that the car was stolen property for which also there is no admissible evidence. 28. In the backdrop of principles discussed above this Court is satisfied that the prosecution has miserably failed to establish that the appellant/accused dishonestly received the property involved and ``` CRL.A NO. 1339 OF 2006 12 ``` retained the possession of the same and he knew or had reason to believe that the car involved was a stolen one. 29. The learned counsel for the appellant also relied on _**Ramankutty v. Excise Inspector [2013 (3) KHC 308]**_ to contend that even the alleged arrest of the accused is doubtful in the absence of arrest memo as required. No material was even produced before the court to establish that an arrest memo was prepared before effecting the arrest of the accused. In _**Ramankutty v. Excise Inspector (supra)**_ this Court has held as follows :- _“It is pertinent to note that the 'arrest memo' , a crucial document which is required to be prepared contemporaneously at the time of arrest to show the genuineness of arrest, is seen not produced before the trial court. Prosecution has no case that though the arrest memo had been prepared at the time of the arrest and seizure, it could not be produced before the trial court. So it can be safety concluded that it was not prepared at the time of alleged arrest…... If the arrest is not proved beyond reasonable doubt, the entire case set up by the prosecution will fall to ground. It is also pertinent to note that there is no evidence to show that one friend or relative or other person known to him was informed of the arrest of the revision petitioner, immediately after the arrest….. The non-compliance of the mandatory requirements to be complied at the time of arrest speaks volumes doubting the genuineness of the arrest and it is fatal to prosecution case, as the seizure of the contra band has no existence at all without proving the factum of arrest, beyond reasonable doubt”_ ## 30. The inevitable conclusion is that the genuineness of the arrest pleaded by the prosecution is also doubtful which in turn is fatal to the prosecution case. ``` CRL.A NO. 1339 OF 2006 13 ``` The resultant conclusion is that no satisfactory evidence has been produced before the Court to establish the ingredients to attract the offence punishable under Section 411 IPC. The challenge against the verdict of guilty and conviction is justified. The appellant/accused is entitled to benefit of doubt. The impugned verdict of conviction and sentence imposed on the appellant/accused under Section 411 IPC is set aside. The appellant/accused is not found guilty of the offence punishable under Section 411 IPC. He is acquitted of the charge levelled against him. He is set at liberty. The Criminal Appeal is allowed as above. **Sd/K. BABU JUDGE** VPK