Murugan vs State by Inspector of Police, C.B.C.I.D.

A. Arumughaswamy, J.—Challenging the conviction and sentence imposed in S.C. No. 368 of 2002 by the learned Additional Sessions Judge, Fast Track Court No. I, Chengalpattu, A2 therein has come forward with this criminal appeal.

The Appellant, who was A2 before the trial Court, stands convicted for the offences under Sections 489B and 489C of IPC and sentenced to undergo R.I. for 10 years and to pay a fine of Rs. 10,000/- in default to undergo R.I. for further 1 year for the offence u/s 489B of IPC and to undergo R.I. for 5 years for offence u/s 489C of IPC. Both the sentences were ordered to run concurrently.

The case of the prosecution in brief is as follows:

PW-3 Sampath @ Sampath Kumar is a resident of Maruthi Nagar, Asthinapuram, Chromepet. PW-3 used to have talk frequently with one Purushothaman. The said Purushothaman is known to A2, the Appellant herein. The deceased Vijayakumar was a neighbour of P.W.3. In that course of transaction, A2 developed friendship with PW-3. PW-2 Dilli is a two wheeler mechanic. He is running his workshop at Gandhi Road, Chitlapakkam. A2 as a customer developed relationship with PW-2. While so, the Appellant is said to have suggested an illegal business. PW-2 refused to accept the proposal of A2 and demanded for good job. PW-1 is a supplier in a Fast Food shop which is run by one Manoharan. On the fateful night, both A2 and the deceased Vijayakumar had their food and tendered a counterfeit currency with the face value of Rs. 100/- for bill amount of Rs. 35/- . When the said Manoharan questioned about the currency, A2, the Appellant, fled away from the place of occurrence. P.W.1 and two others handed over the deceased Vijayakumar to Chromepet Police Station. P.W.5 Manoharan lodged a complaint Ex.P.1 to P.W.5, the Inspector of Police, Chromepet Police Station. On receipt of the same, P.W.5, registered a case in Cr. No. 999 of 1997 for offence under Sections 489B, 489C and 120B of IPC. He prepared Ex.P.6 Printed FIR, recovered M.O.3 - Counterfeit currency with the face value of hundred rupees under cover of Ex.P.7 - Form-95. At about 7.15 p.m. P.W.5 arrested the deceased Vijayakumar and recorded the voluntary confession of the accused. Ex.P.8 is the admissible portion of the voluntary confession. Pursuant to the said admissible portion of the confession, P.W.5 recovered few other counterfeit currencies. At about 9.00 p.m. on identification by the deceased Vijayakumar, P.W.5 the Inspector of Police arrested A2 and recovered 78 counterfeit currencies with the face value of hundred rupees. In continuation of his investigation, P.W.5 produced all the counterfeit currencies before the learned Judicial Magistrate, Tambaram and the learned Judicial Magistrate in turn forwarded the same to Nasik for opinion. P.W.6 the Technical Officer on examination found that they were all counterfeit currencies. His opinion dated 04.10.1998 is Ex.P.10. Thereafter, A1 was remanded under P.T. Warrant. P.W.8 continued the investigation, examined the Doctors, recorded their statements, collected the medical certificates and upon completion of the investigation laid the final report against A1 and A2, the Appellant herein for offences under Sections 120B, 489B, 489C of IPC.

On committal, the case was taken up for trial by the trial Court. The trial Court framed charges under Sections 120B and 489B of IPC as against both A1 and A2 and u/s 489C as against A2 alone. During the trial, as many as 8 witnesses were examined on the side of the prosecution and 12 documents were exhibited. M.O.1 to 3 material objects were produced. On completion of recording of evidence on the side of the prosecution, the Appellant / A2 and A1 were questioned u/s 313 of Code of Criminal Procedure wherein they denied the evidences of the prosecution witnesses. They did not chose to examine any witness or to exhibit any document. Having considered all the above, the trial Court found the Appellant / A2 alone guilty for offence u/s 489B and 489C of IPC and imposed appropriate punishment as indicated at the earlier paragraphs of this judgment and insofar as an offence u/s 120B is concerned, the trial court acquitted the Appellant/A2. A1 was, however, acquitted from both the charges.

The learned Counsel appearing for the Appellant vehemently contended that A1 has unnecessarily been connected in this case and there was no investigation by the prosecuting agency in regard to the alleged handing over of Rs. 23,000/- worth counterfeit currencies to A2. The trial court ought not to have proceeded to convict the Appellant/A2 alone for the offence sunder Sections 489B and 489C of IPC.

The learned Counsel for the Appellant further contended that the deceased Vijayakumar has already given a statement immediately after his arrest to the police regarding the possession of counterfeit currencies with the Appellant and as such the so called recovery pursuant to the confession of A2 would not fall within the meaning of Section 27 of the Code of Criminal Procedure and as such, conviction on the basis of the confession of the deceased against A2 is not in accordance with law and the conviction based on the same is liable to be set aside.

The learned Government Advocate (Criminal Side) would on the other hand contend that the recovery of counterfeit currencies have been made only through the confession of the deceased and the trial court rightly formed the basis for conviction of the Appellant. Therefore, he prayed for dismissal of the criminal appeal.

As I have narrated earlier, the Appellant has been found guilty under Sections 489(B) & 489(C) of IPC [Charge Nos. 2 & 3] on the basis of the evidence of P.W.2 coupled with the evidence of P.W.5. The learned Counsel for the Appellant would submit that it is not safe to convict the Appellant/A2 on the basis of uncorroborated testimony of P.W.2. He would further point out that there is a material contradiction between the evidence of P.W.1 and P.W.5 in respect of the alleged possession of 78 fake currency notes with the Appellant. The learned Counsel for the Appellant would take me through the evidence of P.W.5 to substantiate the above said contention.

I have considered the above submissions.

As pointed out by the learned Counsel for the Appellant, in chief examination, P.W.1 had categorically stated that as soon as the Appellant was identified by the deceased Vijaya kumar, he took out the above fake currency notes from his house. But, P.W.5, the Inspector of Police would state that on being identified by the deceased Vijaya kumar, the Appellant gave confession and thereafter, in pursuance of the confession of the Appellant, he took out 78 fake currencies from the bureau of his house. It is noticeable that P.W.2 has not categorically stated as to wherefrom the fake currency notes were taken by the Appellant. In general terms, he has stated that from the house of the Appellant, these fake currency notes were recovered. Thus, this material contradiction would only create a doubt in the evidence of P.W.2. It is because of this contradiction, I am of the view that it is not safe to sustain the conviction solely on the basis of the evidence of P.W.2.

In view of the above, I hold that the prosecution has failed to prove its case beyond any reasonable. Hence, the Appellant is entitled for acquittal.

In the result, the criminal appeal is allowed and the conviction of the Appellant for the offence u/s 489B and 489C of IPC and sentences imposed on him by judgment dated 20.02.2004 made in S.C. No. 368 of 2002 on the file of the learned Additional Sessions Judge, Fast Track Court No. I, Chengalpattu to undergo R.I. for 10 years and to pay a fine of Rs. 10,000/- in default to undergo R.I. for further 1 year for the offence u/s 489B of IPC and to undergo R.I. for 5 years for offence u/s 489C of IPC are set aside. Fine, if any, paid by the Appellant/A2 is ordered to be refunded to him. Bail Bond executed by the Appellant shall stand cancelled.

It is not in dispute in this case that the complainant Manoharan died before trial. One Vijayakumar, who allegedly tendered a counterfeit currency to the said Manoharan and disclosed the alleged possession of counterfeit currencies with the appellant also died even prior to trial. Admittedly, A1 was examined by the police when he was in judicial custody in connection with some other case. The trial Court , however, acquitted A1 on the ground that no counterfeit currency has been seized from him.

The main contention of the learned counsel for the appellant is that when the trial court acquitted the accused from alleged charge of criminal conspiracy, in the absence of any other plausible evidence, the conviction as against A2 for offence u/s 489B and 489C of IPC merely on the basis of confession or a third party cannot be sustained. The law is well settled that confession statement cannot form the basis for conviction and it is only a corroborative piece of evidence.

According to P.W.s 3 and 5, the appellant/A2 and another hatched conspiracy to put in use the counterfeit currencies in the market at Rajapalayam and Chromepet. The trial court, however, discharged the evidences of P.W.s 3 and 5 and other materials insofar as the charge u/s 120B of IPC for criminal conspiracy is concerned. It cannot be said that once the charge u/s 120B of IPC for criminal conspiracy stands not proved, the rest of the charges relating to offences committed in furtherance of such criminal conspiracy stand automatically not proved. Even though the charge u/s 120B of IPC for criminal conspiracy is found not proved, the court can very well decide the other charges based on the available materials. In this case, as already stated supra, the trial court acquitted both A1 and A2, the appellant herein from the charge u/s 120B of IPC. The trial court, however, convicted the appellant/A2 for offence u/s 489B and 489C of IPC. P.W.1 has spoken about the seizure of the alleged counterfeit currencies from both A2 and the deceased Vijayakumar. The only basis for conviction of the appellant is his confession statement. There is no other substantive evidence as against the appellant/A2. The deceased Vijayakumar has not only revealed information regarding the possession of counterfeit currencies with the appellant/A2 , but he has also handed over a counterfeit currency to the investigating officer. One hundred rupee note from the roof of his house. Since the said Vijayakumar discovered the alleged fact that A2 was in possession of 78 counterfeit currencies at his house and the said Vijayakumar has not been tried inasmuch he died prior to the trial, the alleged recovery of 78 counterfeit currencies from the appellant, pursuant to the confession of the co-accused deceased Vijayakumar cannot be relied upon. In view of the above, the conviction of the appellant for offence under Sections 489B and 489C of IPC and and sentences imposed on the appellant by the learned Additional Sessions Judge, Fast Track Court No. I, Chengalpattu are liable to be set aside.