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Case Number

46 of 1959

Attorney(S)

K.S.Rajamony

Judges

Mr. Justice T.K. Joseph

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Smart Summary

Structured Summary of the Opinion — Sessions Case No. 63 of 1958 (Trivandrum)

Factual and Procedural Background

This appeal arises from convictions in sessions case no. 63 of 1958 on the file of the Sessions Judge, Trivandrum. Three accused (labelled accused 1, 2 and 3) were convicted under Sections 232, 235 and 243 of the Indian Penal Code at trial; charges were also framed under Section 34. Sentences imposed varied by accused: the first accused received simple imprisonment for three years under s. 232 and one year under s. 243; the second and third accused received rigorous imprisonment for five years under s. 232 and two years under s. 243. No sentence was imposed under s. 235; all sentences were directed to run concurrently.

The prosecution case, as presented at trial, was that on the night of 13-2-1958 police officers (including PW9) received information at about 11:45 p.m. that the accused were counterfeiting coins at a residence in Bheemapally, Trivandrum. The police proceeded to the house in a van, met PW2 en route and took him along, and then encountered PW1 and a person named Peer Muhamed at the house. From a courtyard they peeped through an open window and observed accused 1–3 engaged in counterfeiting activities. The police entered the room, found and seized a number of articles (described as M.Os. Nos. 1–10), and later obtained further articles (M.Os. Nos. 11–21) said to have been produced by the third accused. The accused were arrested, PW9 prepared a mahazar and later recorded his own statement said to be the first information. The accused were committed for trial, tried on the aforementioned charges, convicted, and sentenced as above.

The appeals were filed by the three accused through jail authorities. As the appellants were unrepresented, an advocate engaged by the State raised points on their behalf challenging the investigation and the reliability of prosecution witnesses.

Legal Issues Presented

Whether the investigation was vitiated by procedural illegalities, specifically the failure to record the statement of the informant who supplied information to PW9 (the police officer) and the effect of that omission.
Whether the search and seizure (or seizure and recovery) at the accused's house complied with the requirements of Sections 98 and 165 of the Code of Criminal Procedure, or whether those provisions were breached.
Whether the oral and circumstantial evidence led by the prosecution (including testimony of PW1, PW2, PW3, PW5, PW6 and PW9) was reliable and sufficient to support conviction, or whether the evidence left reasonable doubt.
Whether it was safe to convict the accused on the uncorroborated testimony of PW9 in the circumstances of this case.

Arguments of the Parties

Appellants' Arguments

The investigation was vitiated by illegalities and procedural defects from the outset.
PW9 did not record the statement of the person who informed him of the offence; that person should have been recorded and shown in evidence so the accused could cross-examine and meet that version.
The search of the first accused's house violated Sections 98 and 165 CrPC because the statutory preliminary record required by s.165 was not made prior to the search and was not sent to a magistrate.
Prosecution witnesses (including PW1 and PW2) were unreliable, possibly motivated by enmity, and their accounts were inconsistent; the prosecution's other witnesses (vendors said to have sold lead/antimony/tin) gave weak, uncorroborated evidence.
The accused maintained that the case was foisted due to enmity of PW1 and PW2; some accused offered alibi-like explanations (e.g., second accused said he was at Vizhinjam with his wife; third accused said he was sleeping on a bench nearby earlier in the night).

Respondent's (Prosecution's) Position

The prosecution contended that the articles were not recovered as the result of a search pursuant to s.165 CrPC but that PW9 found the accused in the act of committing the offence and took possession of the articles when the accused were arrested—i.e., the seizure was not a statutory search requiring the formalities of s.165.
It was maintained that some articles (M.Os. Nos. 1–10) were being used at the time of the police arrival and were therefore properly seized, while other articles were produced voluntarily by the accused.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court considered the procedural and evidentiary objections and then moved to a detailed evaluation of the prosecution's oral and circumstantial testimony.

On the point about recording the informant's statement, the court accepted that PW9 should have recorded the statement of the person who informed him that counterfeiting was taking place; the failure to do so deprived the accused of an opportunity to cross-examine that informant. The opinion expressly states: "There is substance in this contention."

Regarding search and seizure, the court explained the difference relied upon by parties: s.98 CrPC contemplates search under a warrant from a magistrate, whereas s.165 CrPC permits a police officer to conduct a search without a warrant in certain circumstances but requires the officer to record in writing the grounds of his belief and to send that record forthwith to the nearest magistrate empowered to take cognizance. The court found that, if the police action was treated as a search, the statutory preliminary steps required by s.165 had not been complied with. The prosecution's alternative plea — that the seizure was not a "search" because the accused were observed in the act and the articles were taken on arrest or produced voluntarily — was noted by the court; the court accepted this as a possible characterization for some items (M.Os. Nos. 1–10) but indicated that the record did not show compliance with search formalities for other items.

The court then analyzed witness credibility and the circumstantial matrix. It found significant inconsistencies and indicia of bias in the testimony of PW1 and PW2. For PW1 the timing and manner of his arrival at the house conflicted with PW9's account, PW1 had known personal disputes with the accused (including a failed matrimonial proposal and electoral disputes), and PW1 had repeatedly appeared as a witness in past criminal matters and was present at a subsequent recovery of a harmonium from the accused's house. These factors led the court to conclude PW1 could not be treated as disinterested and that his evidence carried little weight. PW2 likewise was not a neighbour, lived some distance away, and his role in the police party and alleged observations were not persuasive; the defence alleged quarrels between PW2 and the second accused.

The court found further doubt in the circumstantial aspects: the alleged manufacturing of counterfeit coins in a room with the door unlatched and a window open in a densely occupied area, the absence of immediate seizure of a lantern said to have provided light, and the fact that the harmonium (allegedly used to mask noise) was seized only the next day and not found in use when the police arrived. The court described the prosecution theory about these circumstances as improbable.

The prosecution's vendor witnesses (PW3, PW5 and PW6), called to prove purchases of lead/antimony/tin by the accused, were also discredited in the court's view. The court noted a lack of documentary records (no sales bills), absence of sales tax accounts, poor memory or inability to identify particulars of their businesses, internal inconsistencies about where customers came from, and an unsatisfactory explanation for why cash bills were not issued. The court therefore did not regard their testimony as reliable proof of incriminating purchases.

After discounting PW1 and PW2 and finding the vendor witnesses unreliable, the court observed that the only significant remaining eyewitness for the prosecution was PW9 (the police officer). The court held that "in a case like this it is unsafe to enter a conviction on the uncorroborated testimony of PW9." On that basis, and having found the totality of evidence insufficient to exclude reasonable doubt, the court concluded that the accused could not be safely convicted.

Holding and Implications

Holding: The court set aside the convictions and acquitted the accused. The opinion states: "In the result, the conviction of the accused is set aside and they are acquitted."

Implications / Consequences:

The direct effect is that the accused are acquitted and will be released from custody unless they are wanted in connection with any other offence.
The opinion does not purport to establish or announce any broader legal precedent beyond the application of the particular facts to the legal standards discussed (e.g., requirements of s.165 CrPC and caution against uncorroborated police testimony in such cases). The decision's practical consequence is limited to the parties in this case.

Order: Appeals allowed; convictions quashed and accused acquitted.

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Adham Khani And Others v. State

1. These appeals have been preferred by accused 1 to 3 in sessions case no. 63 of 1958 on the file of the sessions judge, Trivandrum. Criminal appeal no. 21 is by the first accused, No. 22 by the third accused and no. 46 by the second accused. All the three were convicted under s. 232,235 and 243 of the indian penal code. The first accused was sentenced to undergo simple imprisonment for three years for the offence under s. 232 and simple imprisonment for one year under s. 243. The second and third accused were sentenced to undergo rigorous imprisonment for five years for the offence under s. 232 and two years for the offence under s. 243. No sentence was awarded for the offence under s. 235, And all the sentences were directed to run concurrently.

2. The case for the prosecution may be briefly stated: accused 2 and 3 are the sons of the first accused. Pw. 9, The sub - inspector of police, Chalai, Trivandrum, And shri sarangadharan, The grime branch sub - inspector of trivandrum, Were in the all india exhibition grounds at pazhavangadi at about 11 - 45 p. M. On 13 - 2 - 1958. While they were there they received information that the accused were counterfeiting coins at their residence at bheemapally, Within the city of trivandrum. They immediately proceeded to the place in a van (or jeep) accompanied by three constables attached to the chalai police station. On the way they met pw. 2 in front of the mosque at bheemapally and he was asked to get into the van. They proceeded to the house of the first accused and stopped the van in front of the first accused's house. Pw. 1 and one peer muhamed were seen there. Pw. 9 told them about the object of their visit and asked them to accompany them to the house of the accused. They went into the court - yard and peeped through the open window of the south - western room of the house when they saw accused 1 to 3 engaged in the process of counterfeiting coins. The first accused was polishing some coins with brown powder, The second accused examining a half - rupee coin and the third accused cutting the edges of an unfinished half - rupee coin with a pair of scissors. The door of the room was not bolted, And they entered the room. M. Os. Nos. 1 to 10 were in the room at that time. These included brown powder, An aluminium dish, Four earthenware moulds for making half - rupees, Two moulds for making quarter rupees, A piece of white string, Five finished counterfeit half - rupee coins, Nine unfinished half - rupee coins, Four pieces of lead, Four iron bands and a pair of scissors. The accused were asked to produce other articles connected with the manufacturing process, And the third accused produced m. Os. Nos. 11 to 21 which include a lead sheet in the shape of a ribbon, Pieces of lead and antimony, A bamboo blowpipe, Table knife, Sand paper, Etc. The second accused produced an earthenware jug, A metal spoon and some charcoal. Pw. 9 prepared a mahazar, Which was attested by pws. 1, 2 and pear muhamed, And he took possession of all the articles. The accused were arrested and taken to the police station the same night. Pw. 9 then recorded his own statement as the first information relating to this case, After further investigation the accused were charged before the city second class magistrate, Trivandrum, Who conducted the preliminary enquiry and committed the accused to the court of sessions to stand their trial for offences under s. 232, 235 and 34 of the indian penal code. At the trial, Charges were framed under s. 232, 235, 243 and 34 of the indian penal code. The learned sessions judge found the accused guilty and sentenced them, As stated above.

3. These appeals have been forwarded by the accused through the jail authorities. As the accused were unrepresented, Advocate sri k. S. Rajamony was engaged by the state to represent them. The points raised by him were that the investigation was vitiated by illegalities and that the witnesses examined for the prosecution were not reliable.

4. The main defence of the accused was that the case was foisted on them due to the enmity of pws. 1 and 2 and the fact that a similar case taken against them on a previous occasion by the police ended in acquittal. The second accused further stated that he used to reside with his wife at vizhinjam and that he came there with his wife that day hearing that his mother was ill. The third accused stated that he was sleeping on the bench nearby when somebody asked him to get up at about 1 - 30 a. M.

5. On behalf of the appellants it was strenuously contended that the investigation of the ease from the very commencement was vitiated by illegalities. It was pointed out that ext. P5, The statement given by pw. 9 and recorded by himself after the accused were arrested and the articles seized, Was not really the first information regarding the alleged offence and that pw. 9 should have recorded the statement of the person who told him that the accused were actually engaged in counterfeiting coins at the house of the first accused. The argument was that by not recording that statement or examining the informant the accused had been deprived of the opportunity of cross - examining him and establishing their innocence. There is substance in this contention. The information received by pw. 9 was that an offence was committed. He should have made a record of the statement given by the informant.

6. Another ground of attack was that the search of the house of the first accused was in violation of the provision of s. 98 and 165 of the code of criminal procedure. The question has to be considered on the assumption that the articles were seized in the manner stated by the prosecution. S. 98 contemplates search under a warrant from a magistrate while s. 165 enables a police officer to conduct a search under certain circumstances without such a warrant. It is further provided in s. 165 that before conducting the search the police officer should record in writing the grounds of his belief and specifying so far as possible the thing for which search is to be made. This record has to be sent forthwith to the nearest magistrate empowered to take cognizance of the offence. It was argued that pw. 9 had not made such a record before searching the house of the first accused. According to the respondent this is not a case in which the articles were recovered on search. Pw. 9 found the accused using these articles for committing the offence and he took possession of these when he arrested the accused. This may apply to m. Os. Nos. 1 to 10 which were alleged to have been actually being made use of while pw. 9 went there. So far as the other articles are concerned the case is that accused 2 and 3 produced the same from inside the house voluntarily. If the act of pw. 9 is treated as a search of the house it is clear from the evidence that the preliminary steps to be observed before conducting a search of a house have not been complied with. However, The prosecution case is that pw. 9 did not go out to make a search & that the seizure of the articles was not during the course of a search as contemplated by the code of criminal procedure. If this is correct - i am assuming it is for the purposes of this argument - the objection regarding the recovery of the articles is of no force. The question whether the evidence adduced by the prosecution on this point is acceptable will be considered later.

7. Coming to the oral evidence it must be observed that the same is not at all impressive. There is no consistent evidence as regards the manner in which the presence of pw. 1 was secured by the police. According to pw. 9, Pw. 1 and one peer muhamed were already at the place when they stopped the van in front of the first accused's house. The version given by pw. 1 is however materially different from this. He stated that he was standing on the road about 11/2 furlongs away when he saw a jeep passing that way. He followed it walking at a slow pace and when he came near and saw that it had stopped by the house of the first accused he walked faster. Thus according to him he reached there some time after the police party arrived there. This raises some suspicion regarding the discovery of counterfeiting and seizure of the articles especially as the accused have a case that pw. 1 was not on good terms with them - a case for which there is some foundation. It is in evidence that there was reason for discord between pw. 1 and the accused. Pw. 1 had made a proposal to get his niece married to the third accused. The accused declined to entertain the proposal and it is admitted that the same fell through. Another reason for enmity urged by the accused is that pw. 1 stood as a candidate for election as president of an association connected with the mosque and that the accused worked against him. Some people including the accused had a suspicion that pw. 1 had misappropriated funds of the mosque and they made use of this allegation in opposing pw. 1's candidature. Pw. 1 admits that one shamsuddin also contested the election though according to him the latter withdrew later. Apart from these it has to be mentioned that this is the third time he figures as a witness in a criminal case. Pw. 1 appears to have had an active part in connection with the case. The police went to the house of the accused the next day also and recovered a harmonium from there. Pw. 1 appears to have been present at the time of recovery of the harmonium and he signs the mahazar (ext. P2) relating to the same. Thus he was present at 1 - 30 a. M. As though anticipating the arrival of the police and also the next day when the police went there. In these circumstances he cannot be treated as an entirely disinterested witness. Pw. 2 also is not one of the neighbours. He lives about 11/2 furlongs away from the first accused's house and according to the prosecution the police party met him near the mosque. They asked him to get into the van and accompany them. It is in evidence that there were five or six houses in the immediate vicinity of the first accused's house. It is not clear why the police chose to take him with them especially as he was not a neighbour of the place searched. According to pw. 2 a list of the articles taken at 1 - 30 a. M. Was prepared and a copy was given to the accused. This is not spoken to by pw. 1 or pw. 9. The defence has a case that pw. 2 had a quarrel with the second accused relating to the fish caught by the latter which pw. 2 wanted to purchase. Though pws. 1 and 2 say that they also peeped through the window and saw the accused counterfeiting coins and that they were present when the accused were arrested and the articles seized, I am not inclined to place any weight on their testimony.

8. The circumstantial evidence also indicates that the prosecution case is open to serious doubt. The accused were residing in a house about 100 feet from the road which touches their compound. The compound was not fully fenced all around. In addition to the main road on one side, There was a pathway on another side of the compound and on the other two sides six families were residing. If the prosecution case is true the accused were making counterfeit coins in a room with the door unlatched and the window open so that people passing by could go in and see what they were doing. This appears to be highly improbable especially in a locality where other people were residing in the neighbourhood. Probably realising this, The prosecution seized the harmonium the next day. The suggestion was that the harmonium would be played while the coins were being filed so that neighbours may not hear the rasping sound. It is admitted that no body was playing the harmonium when the police party went there. It is also alleged that the witnesses were able to see the process going on inside the room as the accused were working with the aid of the light from a lantern. This lantern was not seized by the police and the explanation given by pw. 9 for not taking possession of the same is that he was influenced by humanitarian considerations such as that children were sleeping there and he did not want to deprive them of light. This is as artificial as the case that the accused were making counterfeit coins in a room with the door unlatched and the window opened.

9. The prosecution examined three witnesses to prove that the accused purchased the lead and antimony found there. The case is that they were purchasing lead, Antimony, Etc., From various shops in the bazaar. Pw. 3 was examined to prove that the second accused purchased from his shop quarter pound of antimony on 3 - 2 - 1958 and half pound more after one week. Pw. 5 was examined to prove that the third accused had purchased antimony from him on 12 - 2 - 1958. There is no record to prove the alleged sales by pws. 3 and 5. Neither of them is paying sales - tax on their sales although they admit that they are merchants selling vessels. Admittedly they have no licenced shops or accounts and they did not issue cash bills for the purchases alleged to have been made. They were unable to mention the name of any other customer who had purchased articles from them. Pw. 3 stated that the second accused purchased antimony from him twice and that on the second occasion he volunteered the information that it was for manufacturing toys. Pw. 5 does not even remember the corporation number of his shop. He does not remember when he started his business. It is doubtful whether he has ever seen antimony since he describes it as a type of lead. Although he does not generally ask his customers the purpose for which they buy things, He said he asked the accused in this instance and he replied that he wanted to make some idols. Pw. 5 admitted that several cases were taken regarding stolen articles found in his shop and that he had deposed as a witness in all those cases. Pw. 6 deposed that on 3 - 2 - 1958 he sold quarter pound of tin to the third accused for re. 1 - 6 - 6. He is a salesman in the shop of one k. S. T. Subbia pillai. He said that the proprietor was not present at the time of this sale. Though ordinarily a cash bill would be issued for every sale he did not issue one in this case. He has never gone near bheemapally but still he appears to have told the police that a person from bheemapally made this purchase. To explain this discrepancy he gave an explanation in his re - examination that the third accused said at the time of the sale that somebody else had purchased tin at a price of rs. 5 - 4 - 0 per pound. Then pw. 6 asked him where he was having business and he replied that it was near bheemapally. Again be stated that he remembered the date because the third accused had tendered to him a torn two - rupee note at first. These explanations are not at all convincing. These are the type of witnesses produced by the prosecution to prove that accused 2 and 3 had purchased incriminating articles at about the time when the alleged offence was detected. I do not consider it safe to accept this evidence.

10. I have already stated that pws. 1 and 2 cannot be believed. The only other evidence regarding the alleged making of counterfeit coins and seizure is that of pw. 9. In a case like this it is unsafe to enter a conviction on the uncorroborated testimony of pw. 9. It follows that the evidence tendered by the prosecution is not sufficient to prove the guilt of the accused. The accused have given some explanation as to why such a case was taken against them by the police and why pws. 1 and 2 have taken an active part in the same. They are not bound to prove this and this version does not appear to be improbable in the circumstances. It follows that the conviction must be quashed and the accused acquitted.

11. In the result, The conviction of the accused is set aside and they are acquitted. They will be released from the custody if they are not wanted for any other offence.

allowed.

Adham Khani And Others v. State

Structured Summary of the Opinion — Sessions Case No. 63 of 1958 (Trivandrum)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' Arguments

Respondent's (Prosecution's) Position

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Adham Khani And Others v. State

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