In re: Ramaswami

M.N. Moorthy, J.—Accused 1 and 2 faced a trial before the learned Sub-Divisional Judicial Magistrate, Ramanathapuram, in C.C. No. 246 of 1978 for offences under S. 457(2) and 380, I.P.C. They were convicted for the said offences and sentenced to suffer rigorous imprisonment for three years on each count, the sentence being directed to run concurrently. Al filed an appeal against his conviction and sentence before the learned Sessions Judge, Ramanathapuram Division at Madurai in C.C. No. 384 of 1978. The learned Sessions Judge dismissed the appeal, confirming the convictions and sentences passed by the trial court. Against the said order of the learned Sessions Judge, A1 has preferred this revision petition.

The case for the prosecution is that on the night of 4th June, 1978 at the Mangalanathaswami temple in Uthirakosamangai village, the accused entered the Nataraja temple by breaking open the lock and committed theft of the Lord Nataraja icon idol worth Rs. 50,000. To substantiate the charge, the prosecution examined seven witnesses.

P.W. 3 is the watchman of the Uthirtkosamangai Mangalanathaswami temple. On 4th June, 1978, as usual he locked the Lord Nataraja temple in the presence of P.W. I, the Enquiry Officer of the temple. P.W. 2 is another watchman of the temple. As usual, after obtaining the keys from Panchakshram, who is another watchman, P.W. 2 went to the Natarajar temple in the early morning at 4 a.m. to open it. The keys were sent through the watchman to him by Gurukkal. P.W. 2, found to his dismay, the lock of the gate missing and the gate open. Immediately, he ran to Panchakshram and informed him about this. Later, the information was conveyed to P.W. I, the Enquiry Officer. The Gurukkal was sent for. P.Ws.1 and 2 and the Gurukkal went to the Natarajar temple and found the idol missing. P.W. I sent a phone message to the Ramanathapuram Samasthanam, and later gave a report, Ex. Pl, to the police. A case was registered for offences under Ss. 457 and 380, I.P.C. at the Ramanathapuram police station.

P. W.7 is the Deputy Inspector of Police, Ramanathapuram police station, who took up investigation. He went to the Mangalanathaswami temple and prepared an observation mahazar, Ex. P2. On 5th June, 1978, he examined P.Ws 1, 2 and 3 and on 9th June, 1978, he examined P. W.4 On 27th June, 1978 at 11.45 a.m. he arrested both the accused at the junction of Uthirakosamangai Road, at Ramnad-Madurai Main Road. The accused gave confessional statement under S. 27 of the Evidence Act, the admissible portion of which is marked as Exs. P5 and P6. In pursuance of the confessional statements, Exs. P5 and P6, P. W.6 and others were taken to Periakannankudi village and from a pond there, Lord Nataraja icon idol was recovered. A mahazar was prepared which was attested by the Village Munsif, P.W. 6. After completion of investigation, P.W. 7 laid the charge-sheet against the accused.

When the accused ware questioned on the incriminating circumstances appearing against them on the side of the prosecution they denied their complicity in the crime. Two witnesses were examined on their behalf. D.W.I is a correspondent of "Thinamalar" and "Thinathanthi" newspapers. On 10th June, 1978, the theft of the idol in the temple at Uthirakosamangai was reported in "Thinamalar" under Ex. Dl, After the idol was recovered, the accused being arrested by the Asst. Sub-Inspector of Police was published, on 26th June, 1978, under Ex. D2. According to D.W.2, he knew about the theft of the idol from the temple at Uthirakosamangai. While he was bathing his bull, be accidentally trotted on an idol. Immediately, he reported the matter to the President of the Panchayat. The police came and took the idol to Ramanathapuram. This happened in the month of "Vaikasi"(May).

The Courts below have accepted the evidence of the prosecution about the theft of the Nataraja Idol on the night of 4th June, 1978 from the temple at Uthirakosamangai and the subsequent recovery of the same by the Deputy Inspector of Police, P.W. 7, on the information furnished by the accused, after their arrest on 27th June, 1978. In addition to the confessional statements and the recovery of the idol, the evidence of P.W,4 was also relied on to bring home the guilt of the accused. According to P.W. 4, who is a temple "Othuvar", twenty days prior to 4th June, 1978, he happened to meet Al and enquired about his welfare. Later, both of them went to the temple where Al after worshipping, enquired him about the idols. Al wanted to know whether the idols were antique for which P. W.4 replied in the affirmative.

The Learned Counsel for the petitioner, Al, contended that the evidence let in by the prosecution is not sufficient to sustain the conviction of his client. It is argued, even assuming the petitioner had enquired about the antiquity of the idols in the temple a few days before the Nataraja idol, M.O.9. was stolen from the temple, it is too remote to connect the petitioner with the crime. Secondly, he contended that the recovery of the idol on the confessions made by both the accused, Exs. P5 and P6 cannot form basis for the conviction. Finally, he contended, on the evidence of D.W.2 that the idol was already discovered by him in the pond and information was relayed to the concerned officers, and there cannot be a discovery under S. 27 of the Evidence Act when it has already been recovered.

In support of his contentions, the Learned Counsel for the petitioner relied on a number of decisions. Firstly, he drew my attention to the following observations in Thimma v. The State of Mysore 1971 M.L.J. (Crl.) 337:

Once a fact is discovered from other sources there can be no fresh discovery even if relevant information is extracted from the accused and Courts have to be watchful against the ingenuity of the investigating officer in this respect so that the protection afforded by the wholesome provisions of Ss. 25 and 26 of the Evidence Act is not whittled down by the mere manipulation of the record of case diary.

Next, the decision in Mala Bijal v. The State of Kutch AIR 1954 Kutch 22 was cited for the proposition that when each of the two accused makes separate statements and points out the same place where stolen property was concealed, subsequent discovery in pursuance of such information must be taken to have been made only in pursuance of the information given by the accused who made the first statement and the statement of the second accused who gave the information later becomes inadmissible. By merely postponing discovery that could have been made, to enable the other accused to make a similar statement and to point out the place, it cannot be said that discovery was in consequence not only of the statement made by the first accused but it was in consequence of the statement by the second accused.

Great reliance was placed on the decision reported in Darlav Nahasudra v. Emperor ILR 59 Cal 1040 wherein it is held, if the information leading to the discovery of a fact relating to the crime comes from statements made by more than one accused person in custody, the statement of the persons other than the first person who made the statement is inadmissible in evidence under S. 27 of the Evidence Act and cannot be used in evidence.

In Lachman Singh and Others Vs. The State, the question as to what should be the rule of admissibility when the statements relating to discovery are made by the several accused simultaneously or otherwise arose and it was left undecided by the Supreme Court.

Finally, to support his plea that discovering evidence by itself under S. 27 of the Evidence Act is subsidiary and cannot sustain a conviction and that there should be other evidence to sustain the prosecution case to corroborate the discovery, a decision reported in Dinkar Bandhu Deshmukh and Another Vs. State, was relied upon.

The main stay of the prosecution is the recovery of the idol, M O.9, on the information furnished by the accused. The evidence of P.W. 4 that the petitioner had made enquiries about the antiquity of the idols in the temple a few days prior to the actual commission of theft is not such a circumstance as to warrant an inference that it must be the petitioner who was responsible for the theft. One cannot rule out the possibility of the petitioner, who has known P.W. admittedly before, enquiring about the antiquity of the idols with out any ulterior motive. Therefore, the conviction of the petitioner rests on the statement under S. 27 of the Evidence Act and the recovery of the idol subsequently.

S. 27 of the Evidence Act is 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 accordingly can be safely allowed to be given in evidence. So much of information as strictly relating to the discovery of fact is admissible, but it should be noted that some discovery of fact as a result of information from the accused does not make it admissible unless its relevancy is established by other evidence showing the connection between the fact discovered and the offence charged.

In the instant case, according to P.W. 7, the Deputy Inspector, he arrested the accused on 27th June, 1978 at 11.45 a.m. Both the accused gave confessional statements, in pursuance of which, he and others were taken to a pond and both the accused dug up and produced the idol, M. O. 9, which was recovered under a mahazar. It should be noted, it is not clear who gave the statement first, even though the accused digging the pond and producing the idol is spoken to by not only P.W. 7 but also P.W. 6, the village Munsif.

S. 27 of the Evidence Act is susceptible to be misused by the police and the safeguard afforded by the provisions of Ss. 25 and 26 of the Act is watered down by the police sometimes by their ingenuity by making it appear that a discovery of some fact was made although such discovery wish already made from some other source. When a fact is discovered from information received from some other source, there is no question of discovery again. In this case, D.W.2''s evidence that he had already discovered the idol, M.0.9, in the pond, conveyed the information to the concerned officers and the idol was taken by the police to Ramanathapuram, rings true as his evidence has not been in any way shaken in cross-examination. Subsequent confessional statements of the petitioner and of the other accused, marked as Exs. P5 and P6, and the so-called recovery from the pond of the idol, makes one doubt whether it was not a stage managed affair. Confession of the accused should be anterior to the discovery and not subsequent to the discovery.

There is another factor to be considered in this case. There were two statements recorded under S. 27 of the Evidence Act resulting in the joint production of the idol. It is difficult to act on this part of the prosecution case that both the accused went to the pond after giving statements and jointly dug out the idol. There is no evidence that a particular accused made the first crucial statement or that he was responsible for the recovery of the idol. The fact discovered in my view cannot be treated as having been discovered from the information of the petitioner and the petitioner alone. There is no evidence worth mentioning with any degree of probability to draw the inference that it was the petitioner whose conduct alone affords an infallible proof of his criminality. At the place of crime, even though finger-prints of persons concerned with the temple were found, there was no finger-print of the accused traced. Even assuming, there may be cases where it is possible to ascribe to more than one accused information which leads to discovery under S. 27 of the Evidence Act and it may be used against all who gave the information, this, however, is not such a case.

The whole of the material evidence has been closely and critically examined before me. Suffice it to say that I am not concerned with suspicion, however grave, or with theories however ingenious. All that the circumstance of the discovery of the idol, M.O.9, establishes is, even assuming the prosecution case to be true, the petitioner was aware of the fact of concealment of it. That is the utmost evidence that can be said to have been proved against the petitioner. But, that is a far cry for holding that the petitioner was guilty of an offence under Ss. 457 and 380, I.P.C. As I am inclined to hold that the idol was already discovered before the accused were arrested and statements were recorded, and as there is no other in criminating evidence against the petitioner, his conviction must be set aside. In the result, the conviction and sentence of the petitioner are set aside. The Criminal Revision Petition is allowed.