Babukutty vs State of Kerala

L. Manoharan, J.—Accused in C.C. No. 37 of 1990 of the Court of the Judicial Magistrate of First Class, Kottarakkara is the revision Petitioner. He was charged under Sections 457, 380 and 461 I.P.C. Learned Magistrate found him guilty of the offence, convicted him and sentenced him to undergo rigorous imprisonment for 2 years u/s 457 I.P.C., rigorous imprisonment for 3 years u/s 380 I.P.C. and rigorous imprisonment for one year u/s 461 I.P.C. The sentences were directed to run concurrently. He filed Crl. Appeal 128 of 1990. The said appeal was dismissed by the learned First Additional Sessions Judge, Kollam, and this revision is directed against the said judgment.

According to the prosecution on 22nd June 1989 at about 2.30 in the night, the accused committed lurking house trespassed by breaking upon the shutters of Prince Radio and Watch Works belonging to P.W. 1 situated in Kizhakkumbhagom in Chithira Village and committed theft of ten radios and four tape recorders which were placed on the table within the shop and also committed theft of 25 watches which were kept in the drawer of the table.

P.W. 1 tendered Ext. P-1 F.I. statement as to the occurrence at 10 a.m. on 23rd June 1989 before P.W. 12, Sub Inspector of Police who registered a crime against the accused under Sections 457, 380 and 461 I.P.C. for which he prepared Ext. P-8 F.I.R. P.W. 13, Circle Inspector of Police took over the investigation, proceeded to the scene and prepared Ext. P-2 scene mahazar. Accused was then not known.

At about 11 p.m. on 30th September 1989 P.W. 13 found the accused in the K.S.R.T.C. Bus stand at Punalur and arrested him in connection with crime 175 of 1989 of Chadayamangalam Police Station. When he was questioned, he confessed to his having committed the theft in the Prince Radio and Watch Works of P.W. 1. Pursuant to those confessions P.W. 13 recovered M.Os. 1 to 5. He questioned the witnesses, completed the investigation and laid the charge against the accused.

Prosecution examined P.Ws. 1 to 13, produced Exts. P-1 to P-10 and identified M.Os. 1 to 5 in an endeavour to prove the prosecution case against the accused.

As noticed, the occurrence was at 2.30 in the night of 22nd June 1989. On the next day at 10 a.m. P.W. 1 tendered Ext. P-1 before P.W. 12. On the same day P.W. 13 went to the scene and prepared Ext. P-2 scene mahazar. Ext. P-2 would show, really the shop room was burgled. P.W. 13 arrested the accused from the K.S.R.T.C. bus stand at Punalur at 11 p.m. on 30th September 1989 in connection with the crime No. 175 of 1989.

According to P.W. 13, when the accused was questioned, he confessed to his having committed theft in the Prince Radio and Watch Works belonging to P.W. 1. Pursuant to Ext. P-3(a) confession, P.W. 13 proceeded with the accused to the house of P.W. 3 who produced M.O. 1 stating that he purchased the same from the accused for Rs. 700 about one year ago. P.W. 13 seized the same under Ext. P-3. P.W. 2 has sworn to the fact that, he had entrusted M.O. 1 with P.W. 1 for repair. P.Ws. 1 and 2 identified M.O. 1. P.W. 1 said, M.O. 1 was kept in his shop. That was found missing in the early morning of 23rd June 1989.

P.W. 1 said, as usual he closed his Prince Radio and Watch Works in the evening of 22nd June 1989; but in the early morning the shop was found to be burgled, and things kept in the shop inclusive of M.Os. 1 to 5 were found missing. He identified M.Os. 1 to 5 as having been kept in the shop on 22nd June 1989.

As per Ext. P-4(a) confession of the accused P.W. 13 proceeded to P.W. 4, a repairer of radio who produced M.O. 2 which P.W. 13 seized under Ext. P-4. P.W. 4 said that, he knew the accused and that he had entrusted M.O. 2 with him for repair. Then as per Ext. P-5(a) confession P.W. 13 was led to P.W. 10 by the accused from whom P.W. 13 seized. M.O. 3 under Ext. P-5. Though P.W. 13 turned hostile, he admitted to his having signed Ext. P-5.

P.W. 13 said, as per Ext. P-7(a) confession by the accused, he along with the accused went to P.W. 5 from whom he seized M.O. 4 under Ext. P-7. Though P.Ws. 5 and 11 the attestors to Ext. P-7 turned hostile, it should be noted that P.W. 11 admitted to his having signed Ext. P-7. Then P.W. 13 also has sworn to the effect that as per Ext. P-6(a) confession he went to P.W. 7. Though P.W. 7 also turned hostile, he admitted that M.O. 5 was entrusted with him by the accused. All that he disputed was that, the seizure of M.O. 5 at his shop; instead he said, he produced the same before the Chadayamangalam Police Station. The fact remains, he admitted, that, it was the accused who entrusted M.O. 5 with him.

A series of recoveries pursuant to the information given by the accused was effected by P.W. 13. As already noticed, the said recoveries do not suffer from any vice so as to be rejected. But the learned Counsel for the revision Petitioner contended that the alleged confessions which allegedly led to the recovery of M.Os. 1 to 5 cannot be admitted in evidence u/s 27 of the Evidence Act. According to the learned Counsel, the accused was not arrested in connection with this crime. In other words, according to the learned Counsel since the accused was arrested in connection with crime 175 of 1989 of the Chadayamangalam Police Station and the alleged confessions were made when he was questioned after such arrest, the confessions cannot be admitted in evidence.

The argument does not appear to be sound. Accused made the confession while he was in custody of P.W. 13. The arrest was in connection with Anr. crime. For the purpose of Section 27 of the Evidence Act ''custody'' need not even mean physical custody. The word ''custody'' u/s 27 of the Evidence Act does not necessarily mean detention or confinement; submission to custody by word or action u/s 46(1) Code of Criminal Procedure will amount to custody. The custody does not mean formal custody but includes such state of affairs in which the accused can be said to have been under some sort of surveillance or restriction. As a matter of fact, the accused was in the physical custody of P.W. 13 and confessions were made while he was in such custody. In view of the fact that the recoveries were made pursuant to the said confession, such confession which led to the recovery is admissible u/s 27 of the Evidence Act. Those confessions Exts. P-3(a), P-4(a), P-5(a), P-6(a) and P-7(a) are thus admissible in evidence and the same along with the testimony of P.W . 1 who identified the material objects as those which were in his shop, and also Ext. P-2 and the evidence of P.W. 13 would positively prove beyond doubt that it was the accused and nobody else who committed theft of the said material objects from the shop of P.W. 1. The elements of all the three offences having been successfully established by the prosecution, the conviction and sentence awarded by the Courts below are only to be confirmed and the revision is liable to be dismissed.

In the result the revision fails and the same is dismissed.