Kilimanni Abu And Ors. vs State Of Kerala on 7 February, 1964

Kerala High Court
Kilimanni Abu And Ors. vs State Of Kerala on 7 February, 1964
Equivalent citations: 1965 CriLJ 557
Author: P G Menon
Bench: P G Menon


P. Govinda Menon, J.

1. These three appeals arise out of the judgment of the learned Sessions Judge of Kozhi-kode in Sessions Case 84 of 1962. Criminal Appeal 117 of 1963 is by the first accused; criminal appeal 103 of 1963 is by the second accused and criminal appeal 105 of 1963 is by accused 3, 4 and 5. Accused 1 to 5 were convicted each under Section 120-B (1), I. P. C,, criminal conspiracy to commit robbery, but no separate sentence was awarded. Accused 3 to 5 were convicted under Section 392 and sentenced each to undergo rigorous imprisonment for 8 years. Accused 1 and 2 were convicted for abetment of forgery under Section 392 read with Section 120-B (1), I. P. C., and sentenced each to undergo rigorous imprisonment for 8 years. In addition accused 3 to 5 were also convicted and sentenced each to undergo rigorous imprisonment for two years and one year respectively under Section 461 read with Section 34, I. P. C., and under Section 342 read with Section 34, I. P. C. Accused 1 and 2 were alternatively charged under Section 411, I. P. C., and the learned Sessions Judge found that they were liable under the section, but since they were convicted and sentenced for the major offence no conviction was recorded under Section 411, I. P. C.

2. The case against the accused was that they along with the absconding accused Moideen and the approver P. W. 1 conspired to commit dacoity in the house of P. W. 5 and in pursuance of the conspiracy they did commit offences under Sections 392, 461 and 342, I. P. C.

The first accused and the absconding accused Moideen are brothers and living together in one and the same house in Kodoor. The first accused is a police constable under suspension. The second accused is a resident of Kodoor. The third accused is a small trader in Calicut. The fourth accused is the brother of the fifth accused’s father. They are both goldsmiths living near each other in Irirnpuzhi at some distance from Chemmankadavu bazaar in Kodoor.

3. P. W. 5 is a fairly rich man owning extensive cocoanut and arecanut gardens and was living with his old mother in a house by the side of a hillock to the northeast of Thannikkal bazaar. At the time of the occurrence his wife had gone to her house for confinement. The approver P. W. 1 runs a barber shop and was a frequent visitor to P. W. 5’s house. On 2-10-62 P. W. 5 had gone to Perintalmanna to meet his vakil’s clerk to prepare certain returns and came back home by about 7.30 p.m. Because she was alone P. W. 5’s mother who is a paralytic patient had sent for the daughters of P. W. 5’s brother for her help and they were in the house on that day. According to P. W. 5 he is not sure whether the doors had been bolted and fastened by his nieces. He had asked them to bolt the door and they had informed him that they had done so. He had locked the Pathayam (wooden box) where he was keeping his valuables and had kept the keys in the wall almirah in the main room. After taking food at about 10-30 p.m. they all went to bed. P. W. 5 had about Rs. 50/- in currency notes kept in the pocket of his belt. He had also placed his wrist-watch on the window sill near the place where he slept.

4. At about 1 O’clock at night he saw one person whom he later identified as the third accused catching hold of his neck and pressing. P. W. 5 attempted to wriggle out when another person identified as the fifth accused caught hold ot his hands and tied them with a cloth. P. W. 5 cried, then another person the fourth accused gagged his mouth with a piece of cloth and while doing so P, W. 5 bit him on hi* fingers. The fourth accused then struck him on his face and mouth with a stone. The third accused questioned him as to where he had kept all his money and the keys. P. W. 5 said that he had no cash with him and that the key was in his almirah. Thereupon the third accused went to the almirah and took the bunch of keys, opened the pathayam and took out a chellapetti from inside and removed all the jewels. The third accused also took the watch and the absconding accused took the belt. Then all of them got out through the eastern door and left the place.

On the way P. W. 1 who had accompanied them to show the way and who was watching near the house joined the accused and they went to the Chemmankadavu bazaar and met accused 1 and 2 who were sitting on the verandah of the mosque. From there they proceeded towards the house of the first accused. On the way they heard the sound of a car and from the lane itself they distributed the booty and all of them dispersed.

5. The next day morning P. W. 5 went to his elder brother’s house and then started for Malappuram. He met one Kurup a petition writer and got a complaint prepared and presented the same to P. W. 23 the Sub-Inspector of Police, Malappuram. Ex. P. 10 is the complaint. P. W. 23 registered a case and proceeded to the scene reaching there at 2-30 p.m. He had already sent P. W. 5 with two policemen in advance. He inspected the place and prepared the scene mahazar and questioned P. Ws. 5 and 7. P.W. 5 was sent for medical examination to the Manjeri Government hospital. The Sub-Inspector took into custody the bed-room lamp M. O. 6, chellapetti M. O. 7 and certain other articles. No clue was received till 8-10-62.

The brother of the first accused Moideen was missing from the village and it aroused suspicion. P. W. 23 went in search of him to Mukkam and other places but no information was received. On 11-10-62 on information received P. W. 23 went to P. W. 1’s house and arrested him and questioned him. Two rings M. Os. 3 and 4 packed in a paper M. O. 5 were recovered from the eaves of his house. His house was searched, but nothing further was recovered. From there he proceeded to the first accused’s house. Reaching there at 4 p.m. he was arrested and questioned. On information furnished by him M. O, 2 watch which had been kept in a glass bottle M. O, 20 was recovered from his compound and they were taken into custody. His house was searched but nothing else was found. Then the first accused was taken to the police station and P. Ws. 5 and 7 identified the articles M. Os. 2 to 4 as belonging to them.

The Sub-Inspector then proceeded to Calicut to find out the third accused. Reaching there on 12th morning he met the third accused in his shop. He is a small trader neat the Calicut railway station. His bunk was searched and three konthalamothirama, two like M. O. 8 and one like M. O. 12 packed in M. O. 21 were recovered and taken into custody. Accused 4 and 5 wore absconding, Their houses were searched in vain.

On the 15th the Sub Inspector went to the second accused’s house, but he was not seen in the house. His house is situated in an extensive paramba measuring about 20 acres in extent. On a search of the paramba he was found hiding in one of the bushes and was arrested. On questioning him he pointed out the place where M. O. 1 gold chain was secreted and they were taken into custody. On the 18th P. W. 23 got information that accused 4 and 5 were in Kargal in Mysore State. P. W. 22 the head constable with a police constable were deputed to go to Mysore to trace them. They were attested and produced before the Sub Divisional Magistrate, Malapuram, but they were taken into police custody for the purpose of questioning them. He questioned the fourth accused first. The fourth accused took him to P. W. 21 from whom 4 kontha-lamothirams two like M. O. 8 and the other two like M, O. 12 were recovered. On the report of the police P. W. 2 granted pardon to P. W. 1 after obtaining sanction from the District Collector, Kozhikode. On-27.10-62 the Sub Magistrate Manjeri held an identification parade and P. W. 5 correctly identified accused 3, 4 and 5. After completing the investigation the Circle Inspector of police laid the charge sheet against the accused.

6. The accused denied participation in the occurrence and contended that they were falsely implicated. They denied discovery of the material objects pursuant to any information furnished by them. The first accused retracted the judicial confession and alleged that it was made under police torture.

The fact that a burglary had taken place in the house of P. W. 5 and certain gold jewels and P, W. 5’s belt and wrist-watch were stolen admits of no doubt. P. W, 5 has given a detailed account of the occurrence and without any avoidable delay he had filed a complaint Ex. P 10 the very next morning. Nobody at that time knew who the real culprits were and nobody was interested in filing a false complaint of this nature. The jewels belonged to P, W. 7, She had entrusted them with P. W. 5 for safe custody and P. W. 5 had kept them in M. O. 7 chellapetty which was kept in the pathayam. The jewels are M. O. 1 mala and 11 konthalamothirams in two varieties. P. W. 5 has stated that about eight days before the incident P. W. 7 had gone to his house and entrusted the jewels with him. She has identified the jewels before court as those belonging to her. She was constantly wearing them and she could not have made any mistake about her ornaments.

Certain minor discrepancies between the evidence of P. Ws. 5 and 7 and the description and the weight of the jewels were pointed out, but that does not affect the merits of the case. P. W. 5 has identified M. O. 2 as his wrist watch. I have carefully gone through the evidence of these witnesses and I have no hesitation in accepting their evidence that the jewels produced in court and the wrist watch belong to P. Ws, 7 and 5 respectively and that P. W. 5 had been robbed off those articles,

7. The question that arises for decision is whether the prosecution has succeeded in proving that robbery has been committed by accused 3, 4 and 5 and the absconding accused as spoken to by P. W. 5 and whether accused 1 and 2 were parties to the conspiracy with the other accused in committing robbery. I shall take up the case of each of the accused separately and see how far the evidence can be relied upon. The main evidence for proof conspiracy is the evidence of P. W. 1, P. W. 1 is approver. It is well settled that unless the evidence of the approver is corroborated in material particulars it cannot be accepted. It is only necessary to refer to the recent decision of the Supreme Court in Bhiva Doulu v. State of Maharashtra where their Lordships stated that under Section 133 of the Evidence Act a conviction based merely on the uncorroborated testimony of an accomplice may not be illegal, but the courts nevertheless cannot lose sight of the rule of prudence and practice which in the words of Martin B in R. v. Boyes (1881) 9 Cox C. C. 32 “has become so hallowed as to be deserving of respect” and the words of Lord Abinger “it deserves to have all the reverence of the law” and they concluded by saying that the combined effect of Sections 133 and 114, illustration (b) may be stated as follows : According to the former, which is a rule of law, an accomplice is competent to give evidence and according to the latter which is a rule of practice it is almost always unsafe to convict upon his testimony alone. Therefore, though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars.

The law may be stated in the words of Lord Reading, C. J., in R. v. Baskerville 1910-2 K. B. 658 as follows.

There is no doubt that the uncorroborated evidence of an accomplice is admissible in law R. v. Attwood (1798) 1 Leach 464. But it has been long a. rule of practice at common law for the judge to warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice, and in the discretion of the judge, to advice them not to convict upon such evidence, but the judge should point out to the jury that it is within their legal province to convict upon such unconfirmed evidence (R. v. Stubbs (1855) Dears 555, In re, Meunier, 1894-2 Q B 415).

So what we have to see is whether the evidence of the approver is corroborated in material particulars qua each accused.

8. Before I take up the evidence of the approver it may be convenient at this stage to consider the objections raised as to the admissibility of his evidence. The first point that was raised was regarding the validity of the proceedings granting pardon to P. W. 1. What is stated is that it was done without jurisdiction, and in violation of the provisions contained in Section 337, Criminal P. C. The proviso to Section 337 (1) reads.

Provided that, where the offence is under inquiry or trial, no Magistrate of the first class other than the District Magistrate shall exercise the power hereby conferred unless he is the Magistrate making the inquiry or holding the trial, and, where the offence is under investigation, no such Magistrate shall exercise the said power unless he is a Magistrate having jurisdiction in a place where the offence might be inquired into or tried and the sanction of the District Magistrate has been obtained to the exercise thereof.

It is stated that what the section says is that the place must be a place within his jurisdiction and sanction of the District Magistrate contemplated must be of the District Magistrate who has jurisdiction over the place of occurrence. It is stated that Kodoor village in which the occurrence took place is within the jurisdiction of the Palghat District Magistrate and the sanctioning authority must be either the District Magistrate or the Additional District Magistrate (Executive) of the Palghat District. If we see the latter part of the proviso there can be no doubt that the Executive Magistrate of Malappuram has jurisdiction over the place where the offence might be enquired into or tried which is 1 Kozhikode and the sanction to be granted must be of the District Magistrate, Kozhikode. There is no case that District Magistrate, Kozhikode has not granted the requisite sanction.

Another contention raised was that while P. W. 1 was brought to Kozhikode for giving evidence in the case he was detained in Nadakkavu police station. Reference was made to Clause (3) of Section 337, Cr. P. C., which provides that such person, unless he is already on bail shall be detained in custody until the termination of the trial. Custody, no doubt, would mean judicial custody and there can be no doubt that the custody referred to in Section 337 (3) must be taken to be jail or judicial custody and not police custody. Here in this case even though for a short time the accused was in police custody the question is as to what is the effect.

A similar question arose in the case in In re, Mukhesh Ramachandra Reddy AIR 1958 Andh Pra 165 where it was held:

The word ‘shall’ in the sub-section is primarily obligatory and it casts a duty on a court to detain an accused, to whom pardon was tendered, in custody until the termination of the trial. But it does not make such detention the condition of the validity of the pardon. It is designed to achieve the object for which pardon is tendered and to see that it is not frustrated, The accused, to whom pardon is tendered being an infamous person susceptible of easy accessibility, may be tampered with or the co-accused if on bail or persons interested in them who would necessarily be infuriated by his treachery may attempt to do away with him. It may be that the pro. vision has been enacted to protect him and to preserve his evidence untampered with till the termination of the trial. His release on bail in contravention of the sub-section is illegal and may be liable to be set aside by a superior court but does not touch the validity of the pardon.

9. Now coming to each of the accused, as against the first accused besides the evidence of the approver “P. W. 1 that he was a member of the conspiracy and the distribution of the booty we have his judicial confession and the discovery pursuant to his Section 27 statement. I will first take up his judicial confession. The first accused was remanded to judicial custody in the sub jail at Manjeri on 12-10-62 the day after his arrest. The same day P W 23 had sent up a report to P W 4 the Sub-Magistrate that his confessional statement may be recorded. On 16-10-62 at 4.20 p. m. the first accused was produced before P W 4. P W 4 administered the necessary warning to the accused and gave him time for reflection till 2-30 p. m. on the 18th. On that day the accused was produced before P W 4 and was warned that he is not bound to make any confession, that if he were to confess his confessional statement would be used against him, He was also told that he is not going to be taken as an approver. The Magistrate has scrupulously followed the various precautionary measures to ensure a free and voluntary confession. The Magistrate after satisfying that the confession which he was about to give was free and voluntary, recorded the confession in his own words and read it over to him and got his signature.

In the confessional statement the first accused has stated that till three months back he was a police constable, that he was then under suspension and unemployed and was sitting quiet at home, that he has a big family to maintain, that his brother Moideen, referring to the absconding accused, was employed in a chit fund in Tamarasseri, that on 1-10-62 the second accused came to him and they decided that they should make some money, that the second accused suggested to him that he knew the place where money could be had and that P W 1 the approver knew the house and would point out the house. He has further stated that he sent his brother to Calicut to fetch the third accused, that on that night he sent P W 9 to fetch P W 1, that within about half an hour himself, the absconding accused and accused 3 to 5 mot P W 1, P W 1 was asked to show the house and PW1 took them eastwards along the lane near Thanikkal bazaar, that himself and the second accused stayed behind, that after some time Pw1 came back and wanted the second accused also to accompany them, the second accused said that he would not go, that they may go and finish the job, that both himself and the second accused slept on the verandah of the mosque, that after some time they returned and reported that they have done the job, that all of them left the place and on the way they distributed the booty among themselves and after some days the police arrested him and he pointed out the place where he had buried the watch in a glass bottle and handed over the same to the police.

It is true that he has resiled from his confession and he would have it that he did because of the torture of the police. Besides the bare statement of the accused there is no evidence in support of this. The evidence of the Magistrate amply bears out that he had given the necessary warning to the accused and sufficient time for reflection and there is no reason to doubt the voluntary nature of the confession.

The confessional statement has been retracted and requires corroboration. It is corroborated by the evidence of Pw1 and by the recovery of the wrist watch M O. 2 which has been conclusively proved to belong to P.W.5. P.W.23 the Sub-Inspector of Police. Malappuram has deposed that he went and arrested the first accused and questioned him, that he has recorded in the case diary what the accused has stated that the first accused told him that he had kept the watch in a glass bottle and had secreted it amidst the tapioca cultivation about 125 yards from the house and that he would show the place and produce the article. Pursuant to this statement the first accused took P.Ws. 15 and 23 and other witnesses to the paramba behind the house and pointed out the exact spot, dug it with a pickaxe and took out M.O. 20 glass bottle in which was kept M.O. 2 watch. P. W, 15 is one who ekes out his livelihood by selling betel-leaves in markets and other places. He was cross-examined at great length by the learned Counsel for the accused and nothing has been pointed out to throw any the slightest doubt on the truth of his evidence. He is a person who has no axe to grind against any of the accused.

The learned Sessions Judge before whom the witness had given evidence has stated that he has given the evidence in a most natural and frank manner. In the stress of cross-examination he did make a mistake in stating that two gold rings were also then in the bottle with the wrist watch. He was probably mixing up the two rings which were recovered from Pw1’s house. The recovery of the watch which has been conclusively proved to be one of the stolen properties had been buried by the first accused in his paramba and it was recovered from there. Beyond denying the fact of recovery of the articles the accused has not offered any explanation as to how he came by this stolen article. On these facts the guilt of the first accused regarding the offences charged has been amply made out.

10. Coming to the second accused, beyond the evidence of the approver P. W. 1, the only other evidence is the Section 27 discovery spoken to by P. Ws. 17 and 23. P. W. 25 is the Sub-Inspector of police. P. W. 17 is the village officer, Puzhakkattery. His house is about 2 furlongs away from the second accused’s house which stands on an extensive paramba. P. W. 23 has given evidence that the second accused was hiding in one of the bushes in his paramba and was arrested from there on the morning of the 15th. When he was questioned he stated that he had covered the Gothambumala in a piece of cloth and had secreted the same about 50 yards away from where he was living and that he would show the place and produce the article. Accordingly he took P. Ws. 17 and 23 and others and pointed out the place from where a cloth packet was taken out in which M. O. 1 was kept.

Learned counsel for the accused has characterised the evidence of the Inspector as thorough, artificial and unbelievable. I have scrutinised the evidence of P. Ws. 17 and 23 with great care and find no reason to distrust their evidence. It was argued by the learned Counsel that besides the evidence of the approver there is no other evidence to show that he was a party to the conspiracy or that he had abetted the other accused in the commission of the offence of robbery and that even assuming that the stolen property was recovered from him it does not prove that he had anything to do with the robbery in the house of P. W. 5. There is some force in the submission made. The evidence of the approver regarding the participation of the second accused in the conspiracy is not corroborated by any other acceptable evidence. The confessional statement of the first accused is there, but as against the co-accused its use is very limited.

What Section 30 of the Evidence Act, says is ‘may take into consideration’, which presupposes there being other evidence on record to which the statement can lend assurance. In other words., there must be a basis of substantive evidence to which the confessional statement may be added. If there is substantive evidence against the accused and there is some lingering doubt the confession of the co-accused may be taken into consideration to set that doubt at rest. Corroboration of an approver’s evidence by another co-accused amounts to one tainted piece of evidence being corroborated by another tainted piece of evidence and the conviction thereon is bad. Here there is no evidence that the second accused was a party to the conspiracy except what the approver has stated,

According to the learned Sessions Judge P. Ws. 10 to 12 and 14 do not appear to be witnesses of credit and he has discarded their evidence, Then there remains P. Ws. 8 and 9, but both of them have turned hostile and proved themselves to be unworthy of credit. P. W 8’s evidence is only in respect of accused 4 and 5. P. W. 9 and the second accused are sons of brothers and that explains why he turned hostile to the prosecution about the part played by accused 1 and 2 on the night of the incident. So I do not think that mete recovery of M. O. 1 chain would by itself be a sufficient corroboration to the evidence of the approver to make the second accused guilty of the offence of conspiracy and abetment of robbery. He has, however, been charged alternatively under Section 411, I. P. C.. and the learned Sessions Judge has recorded a finding that he is liable under the section. On the recovery of the stolen property from his possession, for the possession of which he had no satisfactory explanation, the offence under Section 411, I. P. C., is clearly made out and I find him guilty of the said offence.

11. Regarding the third accused besides the evidence of the approver who stated that the third accused was one of the persons who had accompanied him and got into the house of P. W. 5. P, W. 5 has identified the third accused as one of the persons who had gone to his house and committed robbery. Though his name is not known to P. W. 5, he has Identified the third accused in Court and also in the earlier identification parade. Further corroboration is afforded by the fact of the recovery of portions of stolen property from his shop. That he is running a bunk near the Calicut railway station is not disputed by him. P. W. 23 the investigating officer reached Calicut on the morning of 12th and proceeded to the third accused’s bunk with the Calicut town Sub-Inspector and on his way he took P. W. 16, the village Assistant of Nagaram amsom and one Mohammed the proprietor of a hotel. They reached the bunk at 6 a. m. At that time the third accused had just opened the bunk where he is also residing.

The Inspector has stated that he conducted a search of the bunk in the presence of the witnesses and recovered three rings packed in pieces of papers M. O. 21 series from a dealwood box underneath the bench, The rings have been identified to belong to P. W. 7 and as part of the stolen property. There is nothing in the evidence of the witnesses to throw any doubt on the truthfulness of their testimony. None of them were interested in planting these gold rings in the bunk. He has admitted that none of them had any enmity or prejudice towards him. So the fact that three of the articles which were proved to have been stolen from P. W, 5’s house on that night were found in his possession and that the accused could not give a reasonable explanation as to how he came into possession of these articles proves his part in the conspiracy and in the robbery committed in the house of P. W. 5.

12. Finally we will come to the case of accused 4 and 5. (His Lordship, on consideration of evidence against the accused held the conviction of the accused was unassailable and proceeded.)

13. The only question that remains is about the sentence. It has been argued that the sentence of eight years rigorous imprisonment awarded for the offence of robbery is highly excessive and uncalled for, in the circumstances of this case. Though I am not prepared to subscribe to this view, I think the interests of justice would be sufficiently met by reducing the sentence to a period of five years.

In the result, the conviction of the first accused under Section 120-B (1), I. P. C.. and Section 392 read with Section 120-B (1), I. P. C., are confirmed. For the offence under Section 392 read with Section 120-B (1) his sentence is reduced to rigorous imprisonment for five years. There will be no separate sentence for the offence under Section 120-B (1), I. P. C. The conviction and sentence passed on the second accused under Sections 120-B (1), 392 read with Section 120-B (1), I. P. C., are set aside. He is found guilty and convicted under Section 411, I. P. C., and sentenced to rigorous imprisonment for a period of three years. The conviction of accused 3 to 5 under Sections 120-B (1), 392, 461 read with Section 34 and 342 read with Section 34, I. P. C., are confirmed. The sentence for the offence under Section 392, I. P. C., is reduced to one of rigorous imprisonment for five years. The sentence awarded for the offences under Section 461 read with Sections 34 and 342 read with Section 34, I. P. C., are confirmed. There will be no separate sentence for the offence under Section 120-B (1), I. P. C.

All these sentences will run concurrently.

With these modifications the appeals are dismissed.

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