Velusamy v. The Sub Inspector Of Police

Bail Slip Velusamy, S/o.Ramasamy, 2nd Accused in all cases released on bail vide order of this Court dated 08.06.2016 made in Crl.MP(MD) Nos.2265, 2268, 2269, 2271, 2274, 2275, 2278 and 2279/2016 in Crl.R.C(MD)No.149 to 156 of 2016.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25.09.2020

CORAM

THE HONOURABLE MR. JUSTICE B.PUGALENDHI Velusamy .. Petitioner/Appellant/A2 (in all Crl RC's) Vs.

The State rep. by its, The Sub-Inspector of Police, Velliyanai Police Station, Karur District.

(Cr.No.559 of 2010, 174/2011, 175/2011, 176/2011, 177/2011, 178/2011, 179/2011 and 181/2011) .. Respondent/Respondent/Complainant (in all Crl RC's) Common Prayer:

Criminal Revision Cases filed under Section 397 and 401 of Cr.P.C. against the Judgment dated 25.01.2016 made in Crl.A.Nos.65, 66, 67, 68, 69, 70, 71 & 72 of 2015 on the file of the Mahila Fast Track Court, Karur, respectively modify the order passed in CC.No.91,92,93,94,95,96,97 and 98 of 2012 dated 05.10.2015 on the file of the Judicial Magistrate No.II, Karur, respectively and set aside the same.

For Petitioner : Mr.S.Ravi for Mr.M.Ramesh For Respondent : Mr.A.Robinson, Government Advocate (Crl. side) COMMON ORDER The revision petitioner herein is the accused No.2. He was tried along with one Perumal/accused No.1 for the offence under Section 379 IPC.

2. One Rajendran and seven others lodged separate complaint before the respondent Police alleging that in their agricultural land, a Pump Set Motor (5 H.P.) was stolen. Based on their complaints, the respondent Police registered eight cases in 1/14

Cr.Nos.559/2010, 174 to 179 of 2011 and 181 of 2011 for the offence under Section 379 IPC.

3. During the course of investigation, P.W.4-Sub Inspector of Police arrested this petitioner along with accused No.1 on 29.06.2011 at 12.00 noon on Palayarenganpalayam-Uppidam Road, in the presence of P.W.3-Karalan and recorded the confession statement of accused No.1 and pursuant to his confession statement, Pump Set Motors (5 H.P.) [M.O.1 in all cases] were recovered. Based on the recovery, final reports were filed as against the accused. The same were taken on file in C.C.Nos.91 to 98 of 2012 respectively. In conclusion of trial, the trial Court, vide its separate Judgment dated 05.10.2015, found the revision petitioner/A2 and A1 guilty for the offence under Section 397 IPC, convicted and sentenced them to undergo two years Rigorous Imprisonment in all the cases.

As against the conviction and sentence imposed by the trial Court, the revision petitioner alone had preferred appeals in C.A.Nos.65 to 72 of 2015 respectively, before the learned Sessions Judge, Mahila Fast Track Court, Karur. The Appellate Court, by its separate Judgment dated 25.01.2016, though confirmed the findings on the conviction of the trial Court, however, modified the sentence from two years Rigorous Imprisonment to one year Rigorous Imprisonment. Aggrieved over same, the present Criminal Revision Cases are filed by the revision petitioner.

4. Mr.S.Ravi, learned counsel representing Mr.M.Ramesh, learned counsel for the revision petitioner, mainly relied on the recovery of material object and submitted that the entire case of the prosecution rests on the recovery of a Pump Set Motor (5 H.P.) [M.O.1 in all cases] from the accused, but, no separate confession statement was recovered from the revision petitioner/accused No.2 and the recovery was made pursuant to the confession statement of the accused No.1 and in the absence of any confession statement from the revision petitioner, he cannot be held responsible for the recovery and therefore, the conviction and sentence imposed on the revision petitioner cannot be sustained. It is further submitted that the accused No.1-Perumal is no more.

In support of his contention, the learned counsel for the revision petitioner has also relied upon the following Judgments: (i) This Court, in the case of Emperor vs. Sheik Mahaboob, reported in AIR 1942 Mad 532, held as follows: "The only evidence against the accused persons was a confession which is said to have been made by them and which led to the discovery of the stolen article.

simultaneously made a confession of their guilt. If the police officer and the other panchayatdars had discovered the whereabouts of the stolen article from the statement of one accused, then the statements of the other accused would not be admissible, because they did not lead to any discovery. There is no evidence on record which leads one to conclude that it was the fourth accused who made the crucial statement, or that it was the fourth accused who led the panchayatdars to the place where the stolen articles were found. I think therefore that he should be given the benefit of the doubt and acquitted."

(ii) In the case of Lachhman Singh and two others vs. State, reported in AIR 1952 SC 167, the Hon'ble Apex Court held as under: "11. The learned Counsel for the appellants cited a number of rulings in which Section 27 has been construed to mean that it is only the information which is first given that is admissible and once a fact has been discovered in consequence of information received from a person accused of an offence, it cannot be said to be rediscovered in consequence of information received from another accused person. It was urged before us that the prosecution was bound to adduce evidence to prove as to which of the three accused gave the information first.

The head constable, who recorded the statements of the three accused has not stated which of them gave the information first to him, but Bahadur Singh, one of the witnesses who attested the recovery memos, was specifically asked in crossexamination about it and stated: "I cannot say from whom information was got first". In the circumstances, it was contended that since it cannot be ascertained which of the accused first gave the information, the alleged discoveries cannot be proved against any of the accused persons.

It seems to us that if the evidence adduced by the prosecution is found to be open to suspicion and it appears that the police have deliberately attributed similar confessional statements relating to facts discovered to different accused persons, in order to create evidence against all of them, the case undoubtedly demands a most cautious approach.

present advised we are inclined to think that some of the cases relied upon by the learned Counsel for the appellants have perhaps gone farther than is warranted by the language of Section 27, and it may be that on a suitable occasion in future those cases may have to be reviewed. For the purpose of this appeal, however, it is sufficient to state that even if the argument put forward on behalf of the appellants, which apparently found favour with the High Court, is correct, the discoveries made at the instance of Swaran Singh cannot be ruled out of consideration.

It may be that several of the accused gave information to the police that the dead bodies could be recovered in the Sakinala, which is a stream running over several miles, but such an indefinite information could not lead to any discovery unless the accused followed it up by conducting the police to the actual spot where parts of the two bodies were recovered. From the evidence of the head constable as well as that of Bahadur Singh, it is quite clear that Swaran Singh led the police via Salimpura to a particular spot on Sakinala and it was at his instance that bloodstained earth was recovered from a place outside the village and he also pointed out the trunk of the body of Darshan Singh.

The learned Judges of the High Court were satisfied, as appears from their Judgment, that his was "the initial pointing out" and therefore the case was covered even by the rule which, according to the counsel for the appellants, is the rule to be applied in the present case."

(iii) The Allahabad High Court, in the case of Poshaki and another vs. State, reported in AIR 1953 All 526, held as follows: "9. The prosecution led evidence to prove the statement made by the accused presumably under Section 27, Evidence Act. On account of the variation in the two versions, one recorded in Ex. P 16 and the other as stated in court, it becomes a bit suspicious, in my opinion, as to what exactly did the accused say. Be that as it may, Mr. Saksena, appearing for the appellant Poshaki, has argued that it was not open to the prosecution to rely on Section 27, Evidence Act, to prove the discovery as against either of the two appellants. Mr. Saksena's contention was that Section 27 has to be strictly construed and that it refers only to a discovery that is made as a result of the statement of 'one' particular individual and it does not contemplate the proof of successive recoveries of the same thing being proved as a result of successive 4/14

statements by different accused persons.

10. In support of this contention of his he points out that the words used in the section are "Information received from a person". He, therefore, says that the section contemplates the action of an individual. In support of his contention he relies on the decision of -- 'Puttu v. Emperor', AIR 1945 Oudh 235 (A). In this case Misra and Kaul JJ. as Judges of the Chief Court of Oudh held that "Section 27 ought to be construed strictly. The use of the word "a person" in singular, in Section 27, is somewhat significant. The word was used in singular designedly because the joint statement of a number of persons, cannot be said to be an information received from any particular one of them. When a fact is discovered in consequence of information received from one of several persons charged with an offence, and when others give like information, it is impossible to treat the discovery as having been made from the information received from, each one of them."

11. The learned Judges relied on an observation of Straight J. made in -- 'Queen Empress v. Babu Lal', 6 All 509 (B). The observation of Straight, J. on which reliance was placed is in these words:

It is not a proper course, where two persons are being tried, to allow a witness to state "they said this", or "they said that" or "the prisoner then said". It is certainly not at all likely that both the persons should speak at once, and it is the right of each of them to have the witness required to depose as nearly as possible to the exact words he individually used. And, I may add, where a statement is being detailed by a constable as having been made by an accused, in consequence of which he discovered a certain fact or certain facts, the strict precision should, be enjoined on the witness so that there may be no room for mistake or misunderstanding ....... In detailing statements of this kind which are alleged to have led to discovery, it is of the essence of things that what each prisoner said should be precisely and separately stated. If the evidence was not clear upon this point and the witness refused to be more explicit, the Judge should have paid no attention to it.

12. The above quoted observations of Straight, J. indicate that the law expects a good deal of precision in regard to the statement which police officers wish to bring on the record under the enabling provisions of Section 27, Evidence Act. The evidence in regard to the 5/14

statements made by Azimullah or Poshaki which led to the discovery is, in my judgment, thoroughly unsatisfactory because it lacks precision. The statement ascribed to the accused as recorded in Ex. P 16, if strictly construed, could not be said to contain such information as related distinctly to the discovery of the incriminating article and, therefore, in my judgment, it did not strictly fall within the ambit of Section 27, Evidence Act.

9. Mr. Saksena also relied on two other decisions in support of his contention--one was the case of -- 'Budha v. Emperor', AIR 1922, Lah 315 (C) and the other -- 'Kudaon v. Emperor', AIR 1925 Nag 407 (D). In the former case a learned Single Judge of the Lahore High Court held that:

"Once property has been discovered in consequence of information received from a suspected person, it cannot be re-discovered in consequence of information received from another suspected person. It is only the in-formation that was given by the first person and which led to the actual discovery which may be proved under the terms of Section 27 of the Evidence Act."

14. In the second case, namely, the Nagpur case which again is a decision by a learned Single Judge, this was what was held:

"Section 27 must be very strictly construed. Where one accused has agreed to point out a place where a fact would be discovered in pursuance of his statement to point out that place, the section does not cover similar statements of the other accused in police custody."

15. On the authority of the two aforementioned decisions, one of the Lahore High Court and the other of Nagpur, it is possible to prove the statement of that accused who comes first on the scene and whose statement leads to the discovery first of all. With respect I am of the same opinion and I would have given effect to the law so stated, if it was possible for me to be certain as to which of the two appellants made the first statement which led to the discovery first of the well and subsequently to the box, but, as I have already stated earlier, the prosecution have not been able to prove who was the accused who made the statement first or who first showed the well because, as I have already noticed, there is a grave contradiction about it. The result, therefore, is that I have got to discard the evidence of the recoveries as against both the appellants."

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(iv) In the case of Karuppa Valayan Vs. State of Kerala, reported in AIR 1960 Ker 238, the Kerala High Court held as follows:

"5. The next item of evidence consists of the recovery of the stolen property. It would appear, that after the accused were arrested on the 22nd, they were taken in a body to a hut, where from some of the articles, which have been proved to be stolen articles, were recovered. But no statement or confession under Section 27 of the Evidence Act was proved to have been made by the third accused, pursuant to which the recovery was made: It is seen, that the seizure list, Ext. P13, says only, that the articles were recovered pursuant to information furnished by the "accused" using the word in the plural. ' The Police Inspector deposed, that individual statements had been recorded from each of the accused, the admissible parts of which were proved. Ext. Pll being the statement of the third accused.

They are all of the same pattern, and refer to the same articles, and all of them declared that if the Inspector accompanied them, they would point out the place at which they were hidden. These statements but constitute one composite statement about the same articles, which does not serve to fasten the individual guilt. It is only necessary to refer to Peria Guruswami Gounder v.

"It seems to us improper to treat as individual statements of two different persons, a composite statement of this kind, which appears to have been made up of information gathered from the two persons, it being impossible to say how much of the statement was made by one of them and how much was made by the other."

6. In the present case there is a distinction, in that the same statement is said to have been made to the Police Officer by the three accused, but the principle applies equally for there is no knowing on whose information the material fact was discovered, The recovery of these articles is therefore no incriminating circumstance against this accused. The fact remains, that this accused was found in the company of accused 1 and 2 at the time they were arrested on the 22nd October, 1958. This was several days after the occurrence, and this in itself is not a circumstance of great evidentiary value in fixing the accused's guilt. The learned Judge has not dealt with 7/14

or considered the case of each of the accused separately.

(v) The Hon'ble Gujarat High Court, in the case of Meghaji Godadji Thakore and another vs. the State of Gujarat, reported in 1993 Crl LJ 730, has held as follows:

"20. There is one more infirmity in the aforesaid two Panchnamas. Prosecution has not been able to distinctly prove as to what statement was made by whom. In so far as the discovery Panchnama of the place of the complainant, at Ex. 17, is concerned the Panch witness Kantilal, at Ex. 16 has stated that two accused persons made the statement leading to the discovery. It is incumbent upon the prosecution to prove as to who, what statement leading to the discovery, permissible under Section 27, in case of joint statement, was made. In the present case the prosecution failed to point out as to who made, what statement, which led to the discovery or the place of the complainant. Prosecution cannot place reliance on such joint statement against the accused under the provisions of Section 27.

In view of the provisions of Section 27 of the Evidence Act, which is in form of proviso to Sections 24, 25 and 26. A joint statement made by the accused is not per se inadmissible in the evidence but it is very very weak piece of evidence on which any reliance can be placed by the prosecution. In case of joint statement by the accused, like one on hand, it would be very difficult to come to the conclusion which of the two accused persons gave any specific and definite information to the police and panchas which related distinctly to the discovery of the place of complainant from where the offence of house breaking was committed. In this of the matter the aforesaid discovery evidence cannot be used against the accused persons in order to connect them with the crime in question beyond doubt.

Similarly in so far as discovery Panchnama at Ex. 13, in respect of the shop of the goldsmith is concerned, prosecution is not in a position to take any slightest of the profit out of the discovery Panchnama. In fact panch witness has turned hostile. Apart from that even if the said Panchnama is believed to have been proved in that case also the fact discovered is the shop of the goldsmith, who has not supported the prosecution version. The goldsmith, whose shop is alleged to have been discovered by original accused No. 3, Mobhji Keshuji Darbar, does not distinctly as such relate to the culpability of the accused.

the fact that no ornaments were found from the shop of that said goldsmith. The ingots alleged to have been made out of the stolen ornaments and found from the shop of goldsmith does not prove that they were made out of the ornaments stolen from the house of complainant Gandabhai Mevabhai, who is examined at Ex.

8. Unfortunately, the goldsmith has also not supported the prosecution case. There is no evidence worth the candle to establish the guilt of the accused for the offences punishable under Section 457 and 380 of the I.P. Code, are concerned. The aforesaid two circumstances, as such are tainted with material discrepancies. Even assuming that those circumstances are proved, then in that case also they cannot be said to have established the complete chain incriminating only and only accused persons for the offences punishable under Sections 457 and 380 of the I.P. Code. Those circumstances cannot be said to be wholly incompatible with the innocence of the accused. Unfortunately, the learned Trial Magistrate, with due respect, has failed to appreciate the relevant facts and the material provisions of the Section 27 of the Evidence Act and the settled proposition of law on this score. This Court is extremely, unable to uphold the conviction and sentence order passed by the learned Trial Magistrate and which came to be confirmed by the learned Sessions Judge, Mehsana."

5. Per contra, the learned Government Advocate (Crl. Side) submitted that the joint disclosure is permissible under law and the accused Nos.1 and 2 were arrested together by the Investigating Agency on 29.06.2011 at 12 noon and in the presence of the revision petitioner/A2, A1 gave confession statement that both of them have committed the offence. It is further submitted that both the accused were travelling in a TVS 50 Moped, belonging to the revision petitioner/A2, bearing Reg.No.TN28 T 4568 and pursuant to his confession statement, a Pump Set Motor (5 H.P.) was recovered from them, which was kept in the TVS 50 Moped and the remaining seven motors were recovered from the straw bale in the house of the revision petitioner, therefore, the revision petitioner has also actively participated in the commission of offence.

Further, the revision petitioner has not objected the confession statement of the accused No.1 and therefore, the prosecution has established the case as against the revision petitioner and there is no reason to interfere with the findings of the trial Court and the Appellate Court. In support of his contention, the learned Government Advocate(Crl.

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(i) In the case of State (NCT of Delhi) vs. Navjot Sandhu @ Afsan Guru, reported in 2005 (11) SCC 600, the Hon'ble Supreme Court held as follows:

"Joint disclosures

145. Before parting with the discussion on the subject of confessions under Section 27, we may briefly refer to the legal position as regards joint disclosures. This point assumes relevance in the context of such disclosures made by the first two accused viz., Afzal and Shaukat. The admissibility of information said to have been furnished by both of them leading to the discovery of the hideouts of the deceased terrorists and the recovery of a laptop computer, a mobile phone and cash of Rs.10 lakhs from the truck in which they were found at Srinagar is in issue. Learned Senior Counsel Mr.Santhi Bhushan and Mr.Sushil Kumar appearing for the accused contend, as was contended before the High Court, that the disclosure and pointing out attributed to both cannot fall within the ken of Section 27, whereas it is the contention of Mr.

Gopal Subramanium that there is no taboo against the admission of such information as incriminating evidence against both the accused informants. Some of the High Courts have taken the view that the wording "a person" excludes the applicability of the section to more than one person. But, that is too narrow a view to be taken.

27. "A person accused" need not necessarily be a single person, but it could be plurality of the accused. It seems to us that the real reason for not acting upon the joint disclosures by taking resort to Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused at a time. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information 10/14

into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any break, almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27. However, there may be practical difficulties in placing reliance on such evidence. It may be difficult for the witness (generally the police officer), to depose which accused spoke what words and in what sequence. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the standpoint of credibility and its nexus with discovery. Admissibility and credibility are two distinct aspects, as pointed out by Mr.Gopal Subramanium. Whether and to what extent such a simultaneous disclosure could be relied upon by the Court is really a matter of evaluation of evidence."

(ii) Following the same, this Court, in the case of Senthil Kumar and another vs. State rep. by Insepctor of Police, Kilkodungalur Police Station, reported in 2009 (3) MLJ (Crl) 917, held as follows:

"37. Applying the ratio of the above decision, there is no difficulty in placing reliance upon joint confessional statement of the accused No.1 and 2 which led to recovery of M.O.1-Car. Pursuant to the confession statement of the appellants/accused No.1 and 2, recovery of M.O.1-Car is a strong circumstance connecting the accused with the offence."

6. Further, according to the learned Government Advocate (Crl. Side), the revision petitioner has also involved in similar nature of offence in seventeen other cases, where, he was acquitted.

7. This Court paid its anxious consideration to the rival submissions made and also perused the available materials.

8. In these cases, the law was set in motion by the complainants [P.W.1 in all cases] for missing of Pump Set Motors (5 H.P.) from the well of their agricultural fields. Based on the complaints, the respondent Police registered eight cases in Cr.Nos.559 of 2010, 174 to 179/2011 and 181/2011. Thereafter, the Investigating Officer has also visited the place of occurrence, 11/14

prepared observation mahazar and drew a rough sketch and enquired the missing of Pump Set Motors (5 H.P.) In the course of investigation, P.W.4 arrested the revision petitioner/A2 and one Perumal/A1 on 29.06.2011 at 12.00 noon on PalayarenganpalayamUppidam Road. The revision petitioner along with accused No.1 were travelling in a TVS 50 Moped bearing Reg.No.TN28 T 4568 with a gunny bag and on suspecting them, the Investigating Officer intercepted the vehicle and the accused No.1 gave his confession statement to P.W.4 in the presence of P.W.3 that they have committed theft of several Pump Set Motors (5 H.P.) from the agricultural fields and pursuant to his confession, a 5 H.P. Pump Set Motor was recovered from the gunny bag, which was kept by the accused. Thereafter, the accused No.1 was also taken to the house of the accused No.

2/revision petitioner and the remaining seven motors were also recovered from the straw bale in the house of the revision petitioner. However, the TVS Moped bearing Reg.No.TN28 T 4568 was not recovered. The Investigating Officer has also stated that the vehicle bearing Reg.NoTN28 T 4568 belongs to the revision petitioner/accused. P.W.3-Karalan, an independent witness, who was present at the time of arrest and recovery, has also stated about the arrest and recovery from the revision petitioner/A2 and A1. P.W.3-Karalan has categorically stated that when the Police enquired the revision petitioner and other accused, both accused have accepted the commission of offence. However, in this case, the confession statement was recorded from the accused No.1, namely, Perumal and pursuant to his confession statement, a Pump Set Motor (5 H.P.)

was recovered from the accused No.1 from the gunny bag which was kept in front of TVS 50 Moped and the remaining motors were also recovered from the house of the revision petitioner.

9. Section 114(a) of the Indian Evidence Act says that the Court may presume that the man who is in the possession of the stolen goods soon after the theft is either the thief or has received the goods knowing that to be stolen, unless he can account of his possession.

10. Considering the evidence of P.W.3 and P.W.4 and in view of the ratio laid down by the Hon'ble Apex Court in the case of State (NCT of Delhi) vs. Navjot Sandhu @ Afsan Guru, and the same was followed by this Court in the case of Senthil Kumar and another vs. State rep. by Inspector of Police Kilkodungalur Police Station, this Court finds no infirmity in the joint disclosure made by the accused at the time of arrest. Therefore, this Court is not inclined to interfere with the concurrent findings of the trial Court as well as the Appellate Court.

11. Accordingly, the Criminal Revision Cases are dismissed, 12/14

confirming the conviction and sentence passed by the learned Sessions Judge, Mahila Fast Track Court, Karur, in C.A.Nos.65 to 72 of 2015 respectively, dated 25.01.2016. The Registry is directed to return the records to the trial Court. The trial court is directed to take necessary steps to secure the custody of the accused to undergo the remaining period of sentence. Bail bonds executed by the accused at the time of suspension of sentence shall stand cancelled. The period of incarceration, if any, already undergone by accused during the course of investigation shall be set off in terms of Section 428 Cr.P.C. The sentence awarded in all cases shall run concurrently. Sd/- Assistant Registrar (CS-II) // True Copy // / /2020 Sub Assistant Registrar(CS) ogy Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.

To 1.The Sessions Judge, Fast Track Mahila Court, Karur.

2.The Judicial Magistrate-II, Karur.

3.Do Through:

The Chief Judicial Magistrate, Karur District.

4.The Sub Inspector of Police, Velliyanai Police Station, Karur District.

5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

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Copy to The Section Officer, Criminal Section(Records)-2 copies Madurai Bench of Madras High Court, Madurai.

25.09.2020 SE(CO) KM (16.10.2020) 14P 8C 14/14