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Judgment
Punnayya
In this revision case Sri P. Venkatadri Sastri questions the legality, correctness and propriety of the convictions and sentences passed against the petitioners herein, who are A. 1 to A. 4 in C.C. No. 111 of 1977 on the file of the Judicial First Class Magistrate, Narasipatnam and appellants in Criminal Appeal No. 97 of 1978 on the file of the Sessions Court, Visakhapatnam. They were tried for offences punishable under Sections 457, 380 and 411 of the Indian Penal Code by the Judicial First Class Magistrate Narasipatnam in C.C. No, 111 of 1977. The learned Magistrate accounts the accused of the offences under Sections 457 and 380 I.P.C. but convicted them u/s 411 I.P.C., and sentenced A-1 and A-2 to suffer rigorous imprisonment for two years and A-3, and A-4, to suffer rigorous imprisonment for six months. In the appeal the learned Sessions Judge reduced the sentence of imprisonment passed against A-1 and A-2 to six months and confirmed the sentence of imprisonment in respect of A-3 and A-4 and dismissed the appeal. The case of the prosecution is that on the night of 8-12-1977 some unknown culprits committed theft of one "gold Nanu" weighing 9 tulas, "gold ingot pieces 3", weighing about 3 tulas and a "gold" pustelatadu" weighing about 2 1/2 tulas and a cash of Rs. 3,200/- from the house of P.W. I. P.W. 1''s wife noticed this fact on 2-12-1977 at 9 a.m., and told P.W. I about the same, then P.W. I, gave a report to the village Munsif P.W. 2 P.W. 2 in his turn sent the crime report to the Narasipatnam Police Station P.W. 4 the C. I. of Police registered a case on the basis of the report received from P.W. 2 and issued express F.I.R. during the course of investigation P.W. 4 had information from P.W. 5 the S. I. of Police about the movements of the accused, on 23-12-1977, P.W. 4 proceeded to Makavarapalem along with P.W. 5 and other party at about 9 30 a.m. P.W. 4 arrested A. I at Makavarapalem in the presence of P.W. 3 and another, who were also with him when he proceeded to Makavarapalem. Then A. I produced a cloth bag, M.O. 5, which contained M.Os. 1 to 4 (gold Nanu, gold ingot bigger size, small gold pieces and small gold ingot piece) P.W. 4 seized them under the panchanama Ex. P. 3 in the presence of P.W. 3. Then he sent A. 1 to Narasipatnam Police Station through a constable. From there, P.W. 4, P.W. 3 and P.W. 5 and the party proceeded to Burgupalem and P.W. 4 arrested A, 2 at about 11-00 a.m. A.2 produced a piece of gold pustelatudu (M.O. 6), which was tied in a piece of cloth, M.O. 9. P.W. 4 seized it under the Pachnama Ex. P. 5 in the presence of P.W. 3 A, 2 was sent to the police Station through a constable. From there P. Ws. 3 to 5 proceeded to Mamidipalem village and P.W. 4 arrested A. 3 at about 12-15 P. M., A. 3 produced a gold piece of pustelathadu, M.O. 7 tied in a piece of cloth M.O. 10. P.W. 4 seized it under the panchanama Ex. P. 6 in the presence of P.W. 3 and others, A. 3 was sent to police Station through a constable. From there P.W. 4, P.W. 5, P.W. 3 and others proceeded to the house of A, 4, who belongs to the same village as that of A.3, P.W. 4 arrested A. 4. Then A 4 produced a gold pustelatadu pieces M.O. 3 tied in a cloth piece, M.O. 11. P.W. 4 seized it under Ex. P. 7 panchnama in the presence of P.W. 3 A. 4 Was sent to the Police Station through a Police constable P.W. 1 identified M.Os. 1 to 4, 6, 7, and 8 as his belongings. P.W. 4 after completion of the investigation filed the charge sheet.
The prosecution examined five witnesses in all. The plea of the accused is one of denial. They did not examine any defence witnesses.
Both the Courts below accepted the evidence of P. Ws. 4 and 5 with regard to the recoveries of M.Os. 1 to 4, 6, 7 and 8 from A. 1 to A. 4 and held that the prosecution proved its case beyond reasonable doubt as against these accused so far as the offence u/s 411 is concerned.
Sri P. Venkatadri Sastri, the learned counsel for the accused contends that the Courts below committed illegality in placing implicit reliance upon the evidence of P.Ws. 4 and 5 though their evidence is not corroborated by the evidence of P.W. 3, who is the mediator He also contends that P.Ws. 4 and 5 categorically stated that they did not remember who wrote the panchnamas Exs. P. 3 to P. 8. He also contends that the Courts below grossly erred in coming to the conclusion that the accused made confessional statements u/s 27 of the Evidence Act, though in fact they did not make such statements and Exs. P. 3 to P. 8 cannot be said to bate been recorded leading to the recovery of the articles. He, therefore, contends that the courts below are not justified under law in convicting and sentencing the accused even u/s 411 of the Indian Penal Code.
P.W. 1 while giving the report Ex. P. 1 to the Village Munsiff, P.W. 2 expressed his suspicion against three persons, who are Bangaru Majjalu his son Pydiah and his son-in-law Nookalu and the same was noted down by the Village Munsif in Ex. P. 1. Those facts were spoken to by P.W. 4. The above mentioned three persons were shown in the F.I.R. as suspects. The Investigating Officer, P.W. 4, after contacting with those persons and interrogating them, came to the conclusion that they have nothing to do with the offence and therefore be excluded their complicity in the case. According to the evidence of P.W. 4 he got the information from P.W. 5 about the movements of the accused and hence he proceeded to the village of A. 1 along with P.W. 5, and P.W. 3 also and some constables, and arrested A. 1 on 23-12-1977 at about 9.30 a.m., and then A. 1 produced MOs. 1 to 4 tied in MO. 5 and he seized the same under the panchnama Ex. P. 3 in the presence of P.W. 3, Similarly he arrested A. 2, A. 3 and A. 4 and they produced M.Os. 6, 7, and 8 and he seized them under the panchnamas Exs. P. 4 to P. 8 in the presence of P.W 3. P.W. 3 is the village Munsif of Makavaripalem. He supported the prosecution case in the Chief-examination but in the cross examination he stated several facts which obviously demolised the entire prosecution case as to the recovery of M.Os. 1 to 11. He stated that he sent a report to the Narasipatnam Police Station against three Harijanas as they had beaten each other and hence he went to the Police Station in that connection on 21-12-1977. Then he saw A-1 to A-4 in the Police lock up along with those three Harijans. He asked the S.I.P.W. 5 about the release of those three Harijans. Then the Sub-Inspector P.W. 5 asked him to bring sureties. Hence he went to his village and came back on 22-12-1977 to the Police Station along with the sureties and got the three Harijans released at 4 P.M., on 22-12-1977. Even by then P.W. 3 saw the four accused in the lock up. As the S.I. of police, P.W. 5, directed P.W. 3 to come again on the next day at about 9 A.M., in connection with the investigation of the incident relating to the Harijans whom he got released, he came to the police Station on 23-12-1977. He stayed at the police station for ten or fifteen minutes and then left for his village. P.W. 3 not treated as hostile to the prosecution even after the several facts mentioned above were stated by him in the cross-examination. From the facts stated by P.W. 3 in the Cross-Examination, it is clear that his evidence in the cross-examination has demolished the prosecution case as to the alleged recoveries made by P.W. 4 from A-l to A-4. The Courts below did not give importance to the facts stated by P.W. 3 in his cross examination viewing that he was only prepared to help the accused. I do not think that the reasons given by the Courts below for not giving importance to the several facts stated by P.W. 3 in the cross-examination are sustainable. The veracity of the witness is to be tested with reference to the answers given by him in the cross-examination. Merely because be stated certain facts supporting the prosecution, in the examination in-chief, the Court cannot conclude that those facts alone deserve to be given weight ignoring the several admissions made by the witness in the cross-examination, which, if appreciated properly, would show what he has stated in the chief-examination is not at all true and as such no reliance should be placed, on them. The object of cross-examination is to obtain from the (sic) admissions favourable to the party on whose behalf the cross-examinations is directed or to discredit the witness. It is well said by the authoritative judicial pronouncements that cross-examination is the most effective of all the means for exacting truth and exposing falsehood. It is the duty of the Court to consider the entire evidence of the witness brought on record in the examination-in-chief, cross-examination and re-examination, Damaging admissions made by the witness in the cross-examination cannot be got rid of merely by stating that the witness in helping the adverse party. Such an approach is derogatory to the well established principles of law. When P.W. 3 made so many admissions in the cross-examination, it is not proper for the Courts below to ignore them totally and offer a lame execuse by stating that he is helping the accused. If the admissions made by P.W. 3 are taken into consideration, it is clear that the accused were not arrested on 23-12-1977 but they were in the lock-up even by 21-12-1977 and continued to be in the Police Lock-up since then. If that be so, no reliance can be placed upon the evidence on P.Ws. 4 and 5.
In fact P.Ws. 4 and 5 were not able to state as to who wrote Exs. P. 3 to P. 8. They were not prepared to say that they themselves wrote Exs. P. 3 to P. 8. P.W. 3 did not write Exs. P. 3 to P. 8. It is therefore clear that Exs. P. 3 to P. 8 were fabricated by P.Ws. 4 and 5. This circumstance again lends support to the version or P.W. 3 about his seeing the accused in the lock-up even by 21-12-1977. Further, P.W. 4 admitted that even on 10 12-1977 itself he mentioned the name of A-1 and his associates in his C.D. to get them for investigation and issued instruction to P.W. 5. On what material, he came to such a conclusion, there is no evidence that P.W. 4 was acting on some extraneous material against the accused and law does not warrant him to do so. This admission of P.W. 4 again indicates that even on 10-12-1977 itself he was prepared to implicate A-1 to A-4 and perhaps even by then they were arrested by him. This again lends support to the defence suggestion that they were arrested ten days prior to 23-12-1977. When the evidence of P.Ws. 4 and 5 that they arrested on 23-12-1977 cannot be accepted and when Exs. P. 3 to P. 8 was fabricated and consequently they do not deserve to be given any weight, their evidence that A-1 to A 4 produced M.Os. 1 to 4 cannot be accepted. It is under these circumstances that I find myself unable to accept the prosecution case against A-1 to A-4 with regard to recoveries of M.Os. 1 to 11. Ordinarily this Court does not interfere with the concurrent findings of fact arrived at by the Courts below. But after hearing the counsel and pursuing the record. I am satisfied that both the Courts below have completely overlooked some striking facts and glaring defects, pointed above, appearing in the prosecution evidence which have vitiated the findings of fact. Hence the Courts below are not justified in convicting and sentencing A-1 to A-4. I, therefore, give benefit of doubt to A-1 to A-4 and set aside the convictions and sentences passed against them. In the result, the Criminal Revision Case is allowed.