State of Kerala v. George S/o Mani, Dominic S/o Mani, Aleyas S/o Devasia, Mathai S/o Varghese

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 22ND DAY OF SEPTEMBER 2020 / 31ST BHADRA, 1942** ## **CRL.A.No.137 OF 2005** **AGAINST THE ORDER/JUDGMENT IN SC 307/2002 DATED 31-03-2003 OF ADDITIONAL DISTRICT COURT (ADHOC), ERNAKULAM** ## **APPELLANT/S:** **STATE OF KERALA REP. BY DETECTIVE INSPECTOR, C.B.C.I.D. (CFS), ERNAKULAM THROUGH THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY ADV. PUBLIC PROSECUTOR** ## **RESPONDENT/S:** - **1 GEORGE S/O. MANI, ARACKAL, THAZHUVANKUNNUKARA, KALLOORKAD.** - **2 DOMINIC, S/O. MANI, ARACKAL, THAZHUVANKUNNUKARA, KALLOORKAD.** - **3 ALEYAS, S/O DEVASIA, VATTAKUZHI, THAZHUVANKUNNU, KALLOORKAD.** - **4 MATHAI, S/O. VARGHESE, VATTAKUNNEPARAMBIL, THAZHUVANKUNNU, KALLOORKAD.** **R1 BY ADV. SRI.SUDHEESH.A. R1-4 BY ADV. SMT.S.AMBILY R1-4 BY ADV. SRI.SAJI THOMAS R1-4 BY ADV. SHRI.MICKY THOMAS R1-4 BY ADV. SHRI.MANU HORMIS WILSON R1-4 BY ADV. SRI.K.K.CHANDRAN PILLAI (SR.)** ## **OTHER PRESENT:** **SMT.MAYA.M.N, GP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No. 137 Of 2005 2 ## **P.V.KUNHIKRISHNAN, J.** ======================== Crl.A. No.137 of 2005 ======================== Dated this the 22[nd] day of September, 2020 ## **J U D G M E N T** State of Kerala challenge the acquittal order dated 31.03.2003 in S.C. No. 307/2002, on the file of Additional Sessions Judge (Adhoc-I) Ernakulam. The above case is charge sheeted by the Detective Inspector, CBCID (CFS), Ernakulam against the respondents herein alleging the offence punishable under Section 489A read with 34 IPC. 2. The prosecution case in short is as follows; the accused Nos. 1 to 5 along with two Tamilians who were brought by the 5[th] accused in furtherance of common intention to make unlawful gain and decided to print counterfeit currency notes of rupees 100/- and 50/denominations. In pursuance of the said intention, the 2[nd] Crl.A.No. 137 Of 2005 3 accused gave seventy five Rs. 100/- notes and ninety Rs. 50/- notes to the Tamilians and printed counterfeit currency notes from the room adjacent to the cattle shed of the 3[rd] accused on 19.07.1990 and from the room adjacent to the bathroom of the house of 1[st] accused. On 22.07.1990, PW5, Circle Inspector of Police seized the printed counterfeit notes of rupees 50/- and 100/denominations along with equipments used for printing from the pathayam situated on the ceiling room of the house No. VI/4 of Kalloorkkad Panchayath belonging to the 1[st] accused. Therefore, it is alleged that, the accused committed the offence under Section 489A read with 34 IPC. The case was detected by the Circle Inspector of Police Muvattupuzha on 22.07.1990. Thereafter, the investigation was handed over to CBCID (CFS), Ernakulam. The accused Nos. 1 to 4 faced trial in this case. 3. To substantiate the case, the prosecution examined PW1 to PW4. Exhibits P1 to P13 are the exhibits marked on the side of the prosecution. Exhibits D1 and Crl.A.No. 137 Of 2005 4 D2 are the exhibits marked on the side of defense. MO1 to MO12 are the material objects. After going through the evidence and documents, the trial court found that the accused Nos. 1 to 4 are not guilty under Section 489A read with 34 of IPC. Therefore, the accused Nos. 1 to 4 were acquitted by the trial court. Aggrieved by the acquittal order, this criminal appeal is filed. 4. It is now a settled position that, the jurisdiction of this Court to interfere against an acquittal order is very limited. The Apex Court in _**Sampat Babso Kale and antoherV. State of Maharastra AIR 2019 SC 1852**_ and _**Chandrappa and others v. State of Karanataka 2007 (4) SCC 415**_ explained the jurisdiction to interfere with the acquittal order by the appellate court. The Apex Court held that the presumption of innocence attached to every accused person get strengthened if the accused is acquitted by the trial court. 5. I have to consider this appeal against the acquittal, in the light of the above dictum laid down by the Apex court. Crl.A.No. 137 Of 2005 5 6. The trial court after considering the entire evidence found that the evidence of PW5, who is the Detecting Officer is not reliable to prove the search and seizure. The trial court found that, evidence of PW5 shows that, he has made corrections in the date in Ext.P1 as well as Ext.P7. Ex. P1 is the seizure list and Ext. P7 is the FIR. When the trial court found that, there is corrections in Ext.P1 and P7 and the evidence of the Detecting Officer is not reliable, it is very difficult for this Court to reverse such findings in an appeal against acquittal. The relevant paragraphs in which the trial court discussed the evidence and rejected the evidence of PW5 is extract here under; “ 9. The evidence of PW5 was challenged by the defence mainly on the ground that the he had corrected the Ext.P1 search list and F.I.R. According to PW5 the mistake in date was came to his notice when he prepared the F.I.R. after reaching Kalloorkkad police station. PW6 deposed that there was no correction in Ext.P1 when he signed in Ext.P1. The date of Ex.P7 is 22.07.1990. This evidence is directly contradictory to the evidence tendered by PW6. PW6 who accompanied PW5 answered that he is not aware whether the first accused was arrested from the spot. He had also answered that he cannot say whether the father of the first accused came before the search or during the search. It is Crl.A.No. 137 Of 2005 6 true that he is giving evidence after a long lapse of time. However the fact regarding the arrest of the accused ought have been remembered by him because it is a very important act done during the search. Thus the evidence of PW6 is not sufficient to corroborate the evidence of PW5. Moreover his presence in the court during the examination of PW5 make his evidence quite unsafe to rely for the purpose of corroboration of evidence of PW5. 10. During the cross examination of PW5 his evidence is that he had kept the copy of F.I.R and search list with him and the original was presented before the court. He had admitted that no photocopy of the F.I.R with date as 21.07.1990 was taken by him. The copy of F.I.R. served to the accused is marked as Ex.D2 (a). In that document the date is shown as 21.07.1990. Even under the signature of PW6 the date is written as 21.07.1990. However PW6 refused to admit this fact. The above circumstances in this case showed that there was some corrections regarding the date of Ex.P1 as well as Ex.P7 F.I.R. The investigation officer deposed that PW.5 had not given a statement to him that he had corrected the date in the F.I.R. as well as Ex.P1 Thus the admission of PW.5 regarding correction of date gains much importance. As per the evidence of PWs. 5 and 6, M.O.1 to 12 were seized on 22.07.1990. According to PW.5 investigation was handed over to the CBCID on the next day. However he had not handed over the properties to the CBCID. The properties are seen produced before the Magistrate Court on 31.07.1990. According to PW.6 the properties were taken by PW.5 after registering the complaint. PW.5 himself admitted that the contraband articles were not sealed immediately Crl.A.No. 137 Of 2005 7 when it was seized. It is not clear from the evidence of PW.5 where exactly M.O.1 to 12 were kept from 22.07.1990 till 31.07.1990. It is the duty of the prosecution to prove that the properties were kept in safe custody during that period. In the absence of evidence the possibility of tampering cannot be ruled out. 11. It is the case of the prosecution that the properties were seized from house No. 4 of ward No.VI of Kalloorkkad Gramapanchayath. PW.7, Secretary of gramapanchayath was examined to mark Ex.P9 certificate. Ex.P9 is a certificate relating to building No.4 in ward No.VI of Kalloorkkad panchayath during 1993-1999 period. The name of the owner in possession is shown as Mani George, which is the first accused herein. The defence marked Ex.D1 building tax assessment register of building No.4 in ward No.VI of the same panchayath from 01.04.1988 to 31.03.1993. The owner in possession is shown as Mani Mathew. Person named in Ex.D1 as owner of the building is not the first accused herein. PW.7 herself admitted that there will be change in the ward as well as building number during every five years. These evidence will go to show that there is no conclusive evidence before the court that house No.4 of ward No.6 of Kalloorkkad panchayath belongs to the first accused. The defence also pointed out that PW.5 had given the copy of search list to another person. There is no evidence that the said person is the father of the fist accused. If the accused was the owner of the building the copy of the search list ought have been given to him. However, that cannot be taken as a circumstance to hold that the house searched by he police does not belong to the first accused. The prosecution could have produced clear evidence to prove the owner ship and possession of the building Crl.A.No. 137 Of 2005 8 searched by PW.5 and party. That evidence is absent in this case. PW.1 an independent eye witness who signed in Ex.P1 denied having seen search and seizure. According to him Ex.P1 was signed from Kalloorkkad police station. In the above circumstances the seizure can be proved by the evidence of PWs.5 and 6, if their evidence is trustworthy. The evidence of PWs.5 shows that he had made corrections in the date in Ex.P1 as well as Ex.P7. The evidence of PW.6 is not safe to rely upon to corroborate the evidence of PW.5. Thus I find that the evidence produced on the side of the prosecution is not sufficient to prove the search and seizure form the house of the first accused. - 12. Point No.2: According to the prosecution M.O.s 1 to 12 were seized from the house of the first accused. In answer to the first point I found that the above evidence is not sufficient to prove that fact. The entire case of the prosecution is that accused 1 to 5 have attempted to print counterfeit notes with the assistance of two Tamilians. The two Tamilians are not made accused in this case. Even as per the prosecution case the crime was committed from the house of the second accused as well as from the house of third accused. In order to prove that fact PWs.2 to 4 were examined. PW.2 is the wife of the first accused and PWs.3 and 4 are wife and sister of third accused. All of them turned hostile to the prosecution. Cross examination by the learned Public Prosecutor failed to brought out any credible evidence to connect the accused persons with the crime. The defence has got a case that the case was falsely fabricated against them by PW.5 in order to get appreciation from then ruling parties. Since the evidence of PW.5 itself shows that he made some corrections in Ex.P1 as well as Ex.P7, without Crl.A.No. 137 Of 2005 9 making any record, indicates that he has done something to suit his convenience. Evaluating the entire facts and circumstances in the light of the above evidence I am of the view that the prosecution has not succeeded in establishing the case alleged against the accused persons beyond reasonable doubt. The prosecution case itself is not free from doubt. Therefore the accused are entitled to get benefit of doubt ”. 7. A perusal of the above findings of the trial court, it is clear that, the trial court considered all the aspects and also considered the evidence available in this case. I see no reason to interfere with the well considered judgment of the trial court in this case at this distance of time. Therefore, this criminal appeal is dismissed confirming the judgment dated 31.03.2003 in S.C. No. 307/ 2002 on the file of Additional Sessions Judge (Adhoc I) Ernakulam. **(Sd/-) P.V.KUNHIKRISHNAN, JUDGE** LU