Sugumaran vs State

Padmini Jesudurai, J.—This Criminal revision is directed against the Judgment of the Additional Sessions Judge, Pondicherry at Karaikal, confirming the conviction and sentence passed on the petitioner by the judicial First Class Magistrate, Karaikal, for offences under Ss. 457 and 380 r/w 34 I, P.C.

The facts giving rise to the present revision briefly are as follows: The petitioner as the second accused was tried along with two others by the Judicial First Class Magistrate, Karaikal in C.C. No. 89 of 1983 for offences under Ss. 457 and 380 r/w 34, I.P.C., in that the three accused in furtherance of their common intention trespassed into Sri Jadayapureeswarar Devasthanam Temple at T. R. Pattinam on the night of 17th September, 1983 and broke open the lock of Adipuramman Sannathi and committed theft of one Panchaloga idol of Adipuramman worth about a lakh of rupees. P.W. 2 discovered the idol (M.O. 3) missing and he, long with P. W. 4, immediately informed about this fact to P.W. 1, who gave Ex. P1 to P.W. 17, the concerned Sub-Inspector, which was registered as Crime No. 64/83 and which was after investigation, resulted in filing charge sheet against the petitioner and two others.

Daring trial, prosecution examined P. Ws. 1 to 18, marked Exs. P1 to P10 and produced M.Os. 1 to 5. On behalf of the petitioner and his co-accused D.W.1 was examined. The Court examined two police officers as C.Ws. 1 and 2.

On the basis of the above materials, the trial Court found that the prosecution had proved its case beyond all reasonable doubt as against the petitioner and his two co-accused and convicted the petitioner and one of his co accused (the first accused) under Ss. 457 and 380, I.P.C. r/w 34,I.P.C. and sentenced each of them to undergo rigorous imprisonment for, a period of three years on each count and also to pay a fine of Rs. 1,500 on each count, in default to undergo simple imprisonment for nine months and the other co-accused (third accused) was convicted only under S. 380 , r/w 34, I.P.C., and sentenced him to undergo rigorous imprisonment for a period of eighteen months and to pay a fine of Rs. 1,000 in default to undergo simple imprisonment for four months. On appeal by the petitioner and his two co-accused, the learned Additional Sessions Judge, Pondicherry, confirmed the conviction and sentence in so far as they related to the petitioner and the first accused, but acquitted the third accused of the charge under S. 380, r/w 34, I.P.C. The present revision is filed by the petitioner (2nd accused) as against the above judgment of the learned Additional Sessions Judge, Pondicherry.

Thiru T. Sudanthiram, Learned Counsel for the petitioner, submitted that there was no legal evidence against the petitioner to warrant an interference of guilt either under S. 457 or under S. 380, I.P.C. The only admissible evidence, which, even if true, was the alleged confession made by the petitioner to P.W. 17, the admissible portion of which has been marked as Ex. P7 and which led to the recovery of a coir rope, M.O. 4. This piece of evidence, which had been denied by the petitioner, even if it was accepted would not be sufficient to form the sole basis of conviction as against the petitioner. Learned Counsel also submitted that both the trial Court as well as the appellate Court had relied upon the alleged confession said to have been made by the first accused to the Investigating Officer, the admissible portion of which had been marked as Ex. P2 the Judgment of the appellate Court, having relied upon the inadmissible piece of evidence, bad to be set aside by this Court acting under its revisional jurisdiction.

Per contra, Thiru S Govindaswami, Public Prosecutor, Pondicherry, submitted that the petitioner was the own brother of the first accused against whom there were clinching pieces of circumstantial evidence to prove the guilt under Ss. 457 and 380 r/w 34, I.P.C., that M.O. 3 being a huge idol and which could not have been lifted by one single person. viz., the first accused, the first accused must have necessarily to taken the assistance of one or more others and that circumstance, along with the recovery of M.O. 4, would be sufficient to draw an inference of guilt as against the present petitioner as well. A rope had necessarily to be used to lift the idol and hence its recovery, oh the information given by the petitioner, was an incriminating circumstance to be reckoned with against the petitioner.

The question that arises for consideration is whether the finding of the lower appellate Court in so far as it related to the present petitioner, is perverse, improper or exhibits a manifest illegality calling for interference by this Court under its revisional jurisdiction.

The occurrence is said to have taken place on the night of 17.9.1983. There is no eye witness to the occurrence. According to the prosecution, the first accused was arrested on 23.9.1983 and on the admissible portion of his confession to the police officer, marked as Ex. P2, M.O. 3 idol had been recovered from inside a tank. It is stated that after the first accused was examined by the police, the investigating agencies started their search for the petitioner and also the third accused. At this stage, we are not concerned with the evidence against the first accused. The court has to find out whether there is evidence against the present petitioner to warrant a conviction.

According to P.W. 17, the Investigating Officer, the petitioner was arrested on 3.9.1983 and on his confession, the admissible portion of which is marked as Ex P7, M.O.4 rope was recovered. There has been some cross-examination on this aspect. But it is unnecessary for the purpose of this revision to go into the truth or falsity of this piece of evidence since it has to be ascertained whether, in the absence of any other evidence against the petitioner, this evidence, even if accepted, would form the sole basis of a conviction. Both the Courts below had acted on this evidence and it is not necessary for me to upset that finding of fact, viz., that on the information given by the petitioner M.O. 4 rope was recovered.

It is strange that the judgments of the courts below do not stop with this piece of evidence against the petitioner. Paragraph 16 of the Judgment of the learned Sessions Judge deals with the case against the present, petitioner. Learned Sessions Judge remarks that though Ex. P2 is the admissible portion, the confession of the first accused is in the nature of a confession of the co-accused against the second accused (the petitioner herein). This proposition of law is patently wrong. The piece of information given by an accused to the Police Officer leading to the discovery of any fact and thereby becoming admissible under S. 27 of the Evidence Act, is not a confession by an accused. The confession made by an accused to be admissible in full, can be recorded only by a Judicial Officer under S. 164, Crl.P.C. after complying with all the requirements provided under that section. When such a confession is made and the above confession is proved in a Court of law, then that confession could be described as a confession of a co-accused as against the others which could be thrown in the balance of evidence against the others. The confession of one accused is not evidence as against the co-accused. When the rest of the evidence is sufficient for a conviction, this confession could be used to tilt the balance against a co accused. It cannot form the basis of a conviction and it cannot be taken as a piece of evidence against the co-accused. In the instant case, the statement that is made under Ex. P2 is only an information given by an accused to a police officer leading to a discovery and admissible under S. 27 of the Evidence Act. This is no evidence against a co-accused. It is also unfortunate that the courts below have extracted the gist of the entire statement made by the first accused to the police officer. What is admissible even against the first accused is that particular portion that distinctly relates to discovery of a fact. The rest of the statement is inadmissible even against the maker, viz., the first accused. Learned Magistrate in paragraph 11 of his judgment has extracted the entire statement of the first accused, as spoken to by P.W. 8, and summarised it as a piece of evidence not only against the first accused but also against the other accused. No doubt the appellate court had refrained from extracting the entire confession of the first accused. Yet, as already stated by me earlier even the appellate court in paragraph 16 of its judgment has taken Ex. P2 as a piece of evidence against the present petitioner. This is a manifest illegality. Ex. P2 hat to be eschewed from consideration so far as the present petitioner is concerned.

The first accused and the present petitioner are brothers and the mere fact that there was one counsel to defend both of them and there was one set of cross-examination by both of them are certainly not circumstances incriminating any one of the accused. Bereft Of all these prejudices and surmises and the inadmissible evidence, what is left against the present petitioner is that on his information M.O. 4 was recovered. M.O. 4 is not property involved in the theft. Nor is there anything to indicate that it was used in the commission of the crime. It is just an ordinary rope which any one could have had access to. Recovery of M.O. 4 by itself will not incriminate this petitioner. I am unable to find any piece of evidence that would lead to the inference that the petitioner is guilty of an offence either under S. 457 or under S. 380 r/w 34, I.P.C. The case of each accused has to be viewed and tested in isolation. Both the courts below have taken the case as a whole and have failed to consider the evidence against each accused separately. There is total lack of evidence against the present petitioner. The judgment of the appellate Court suffers from manifest illegality in relying upon the evidence, which is totally inadmissible. this Court, therefore, acting under its revisional jurisdiction is bound to interfere with and set aside the conviction rendered by the appellate Court.

In the result the revision is allowed, the conviction and sentence are set aside and the petitioner is acquitted and shall be set at liberty forthwith unless he is liable to ?e detained in custody for some other cause,