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Koganti Appayya
Concise Analytical Summary of the Opinion
Factual and Procedural Background
These appeals arise from the Sessions Judge of the West Godavari Division's judgment dated 1 November 1937 in S.C. No. 20 of 1937. There were five accused in the original case. The appeals comprised: (a) an appeal by the 4th accused (who was in jail), (b) appeals by the 2nd and 3rd accused, and (c) an appeal by the Public Prosecutor against the acquittal of the 5th accused. No appeal was filed against the acquittal of the 1st accused.
Factual findings relevant to the record include that the 4th accused was arrested at Nidadavole Station in possession of materials for counterfeiting Government ten-rupee notes. Several blocks bearing engravings of the note were discovered in his banian pocket during a search carried out in the presence of mediators. The 4th accused, when asked to plead, indicated he would tell the truth and stated the offences were committed by other accused, adding "I was also with them."
The 2nd and 3rd accused were convicted below of conspiracy and of abetting the possession of counterfeiting materials by the 4th accused. The prosecution alleged a conspiracy to sell counterfeiting materials to P.W.5, who was employed by the police as a decoy. The principal prosecution evidence on the conspiracy charge came from P.Ws. 1, 3 and 5 (P.W.1 a Sub-Inspector, P.W.3 a Head Constable attached to the C.I.D., and P.W.5 the decoy).
Legal Issues Presented
- Whether the conviction of the 4th accused for possession of counterfeiting materials and under S.489-D, IPC, was supported by admissible evidence.
- Whether the convictions of the 2nd and 3rd accused for conspiracy (and for abetment of the 4th accused's possession) were supported by reliable admissible evidence.
- Whether the statements made to P.W.1 (a C.I.D. officer) during investigation were admissible in evidence and whether they amounted to confessions made to a police officer.
- Whether the conduct of P.Ws.1, 3 and 5 (as decoys/instigators) rendered them accomplices such that their evidence required corroboration or special caution.
- Whether the Public Prosecutor's appeal against the acquittal of the 5th accused had substance.
Arguments of the Parties
Appellants' (Defence) Arguments
- The defence for the 2nd and 3rd accused asserted they were acting as police informants/assistants to P.W.1 (the C.I.D. officer) and were helping him to detect real offenders; their involvement was therefore innocent and explanatory of the evidence presented against them.
- Counsel for the appellant (Mr. K.S. Jayarama Aiyar) argued that P.Ws.1, 3 and 5, who instigated transactions, fell within the category of accomplices and their testimony required corroboration; he relied upon the authorities Queen Empress v. Javecharam (and the following case Hasura Singh v. Emperor) to support this position.
- Specific defence facts pointed to included admissions and witness testimony (for example, evidence that the 2nd accused exclaimed on arrest that he was "one of you") and other evidence supporting that the 2nd accused recognised and assisted P.W.1 in his investigative role.
Public Prosecutor's Arguments
- The Public Prosecutor relied on authorities such as Emperor v. Chaturbhuj (and the subsequent reliance in Govinda Balaji v. Emperor) on the question whether instigation by police decoys constituted accompliceship; this was advanced in opposition to the appellant's contention that the witnesses were accomplices whose evidence required corroboration.
- The Public Prosecutor did not defend the wholesale reception in evidence of police diaries and related documents that had been admitted at trial (these admissions were not defended on appeal).
Prosecution Evidence and Trial-Level Positions
- The prosecution principally relied on P.Ws. 1, 3 and 5 for the conspiracy case and also introduced a number of police documents (police diaries and other exhibits) during trial which the appellate court found were admitted wholesale and improperly.
- The prosecution also relied upon certain documentary exhibits (telegram/letters and other papers) to implicate the accused, though the appellate court found many of these documents not satisfactorily proved.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| King Emperor v. Nilakanta | Held that statements made to a C.I.D. officer must be deemed to be statements made in the course of investigations by him; in that case, because the statements were oral, S.162 CrPC was held not to apply. | The court noted this decision but observed it had subsequently been overruled by a Full Bench decision (Thimmappa v. Thimmappa). The appellate court treated statements to a C.I.D. officer as coming within S.162 for purposes of exclusion. |
| Thimmappa v. Thimmappa (Full Bench) | Full Bench holding that oral statements, no less than written statements, come within the purview of S.162, Criminal Procedure Code. | The appellate court accepted Thimmappa and concluded that statements made to P.W.1 (a C.I.D. officer) fell within S.162 and therefore the trial judge should have excluded those statements; the objections to admission were held to be sound. |
| Queen Empress v. Javecharam | Authority supporting the contention that persons who instigate criminal acts (even if for the purpose of detection) can fall into the category of accomplices. | The court acknowledged this authority as supporting the appellant's contention that P.Ws.1, 3 and 5 may be treated as accomplices and that their evidence requires caution/corroboration. |
| Hasura Singh v. Emperor | Followed the decision in Queen Empress v. Javecharam (thus supporting the position that instigators can be accomplices). | The appellate court noted the following of Queen Empress in this case as authority supportive of the defence contention that instigating witnesses could be accomplices. |
| Emperor v. Chaturbhuj | Authority relied upon by the Public Prosecutor on the question of whether instigators/decoys are to be treated as accomplices. | The court recorded that the Public Prosecutor relied on this case (and that it was followed in Govinda Balaji v. Emperor) as contrary authority to the appellant's contention; the appellate court nevertheless analysed the facts and cautioned about reliance on the C.I.D. witnesses. |
| Govinda Balaji v. Emperor | Followed Emperor v. Chaturbhuj on the instigation/accomplice question (as relied on by the prosecution). | Noted by the appellate court as supporting the Public Prosecutor's position; the appellate court nonetheless held that the evidence of the instigating witnesses required caution and that the conspiracy case was weak. |
Court's Reasoning and Analysis
The court proceeded in a structured manner, addressing each appeal and the core evidential questions:
- 4th Accused (possession and S.489-D): The court regarded the evidence that the 4th accused was found in possession of counterfeiting materials at the time of arrest as "overwhelming." The discovery (several engraved blocks) in his banian pocket, in the presence of mediators, supported conviction under S.489-D, IPC. Further, the 4th accused's own in-court statements (that he had been with others and would "tell the truth") indicated he had no substantial defence to the possession charge.
- Admissibility of statements to P.W.1 and confession issue: The court found the trial judge erred in overruling objections to the admission of statements made to P.W.1 during investigation. Applying the Full Bench ruling in Thimmappa v. Thimmappa, the court held that oral statements made to a C.I.D. investigating officer fall within S.162 CrPC and should not have been admitted. The court further held that the statements, taken together, were relied upon to fasten guilt and therefore amounted to confessions to a police officer; they should have been excluded.
- Admission of police diaries and miscellaneous documents: The court criticised the wholesale admission into evidence of numerous police diaries and documents (Exs. E to E4, O3, O4, Q, R, S, DD, FF and BBBB). The Public Prosecutor did not defend that practice on appeal, and the court found such admissions indefensible and prejudicial to the defence—particularly to accused 2 and 3.
- Reliability of P.Ws.1, 3 and 5 (decoy/instigator witnesses): The court analysed the special status of these witnesses who were actively employed to detect counterfeiting by instigating suspected persons to offer to sell counterfeiting materials. The court considered conflicting authorities on whether such instigation renders the instigator an accomplice. The court observed that instigation can amount to abetment and that an instigator is an accomplice when his object is to make the offender commit the offence and the offender does so. Even if not strictly accomplices, the conduct of these witnesses made their testimony require close caution.
- Weight of evidence on conspiracy against accused 2 and 3: After excluding or discounting improperly admitted documents and treating the C.I.D. witnesses' evidence with caution, the court concluded that the remaining admissible evidence did not establish beyond reasonable doubt that accused 2 and 3 were parties to a criminal conspiracy. Many documentary exhibits were not satisfactorily proved (for example, Exs. B and G-2 were not proved as the 2nd accused's handwriting; Ex. TT and others displayed unexplained corrections or vague language). The defence explanation—that 2nd and 3rd accused were assisting P.W.1 as informants—was supported by testimony (for example, P.W.15's account that the 2nd accused exclaimed on arrest that he was "one of you," and D.Ws.2–5 testifying that P.W.1 was known as a C.I.D. Head Constable).
- Conclusions on each accused: The court held the conspiracy conviction and related abetment convictions against accused 2 and 3 were unsustainable on the evidence and must be set aside. The 4th accused's conviction for conspiracy and sentence under S.120-B were also set aside, but his conviction under S.489-D (possession of counterfeiting materials) was upheld because it rested on independent and reliable evidence (mediators and others present at the discovery).
- Appeal by Public Prosecutor against 5th accused: The court found no substance in the Public Prosecutor's appeal; the acquittal of the 5th accused was upheld.
Holding and Implications
Holding (core rulings emphasized):
- The appeals of accused 2 and 3 are ALLOWED: their convictions and sentences (for conspiracy and related counts) are set aside and they are acquitted.
- The appeal of the 4th accused is PARTIALLY ALLOWED / PARTIALLY DISMISSED: his conviction under S.489-D, IPC (possession of counterfeiting materials) is upheld; however his conviction under the conspiracy count and sentence under S.120-B are set aside. Otherwise his appeal is dismissed.
- The Public Prosecutor's appeal against the acquittal of the 5th accused is DISMISSED.
Immediate consequences: Accused 2 and 3 are acquitted and their convictions and sentences vacated. The 4th accused remains convicted under S.489-D and therefore remains liable to the sentence imposed under that count, but the conspiracy conviction and S.120-B sentence against him are removed. The 5th accused's acquittal stands.
The opinion does not assert that it establishes any new legal precedent; rather it applies existing authorities and emphasises evidential rules (inadmissibility of statements to investigating C.I.D. officers under S.162 as stated in Thimmappa, and caution about the evidence of police instigators/decoys).
Disposition / Orders
Orders were passed in accordance with the holdings summarized above: the appeals of accused 2 and 3 allowed and they were acquitted; the 4th accused's conspiracy conviction and S.120-B sentence set aside but his S.489-D conviction upheld; the Public Prosecutor's appeal dismissed. The court concluded with the direction "Orders accordingly."
N.R.R.
These appeals are from the judgment of the Sessions Judge of the West Godavari Division dated 1st day of November 1937 in S.C No. 20 of 1937 in his file. The first appeal is by the 4th accused who is in jail. The next two appeals are by accused 2 and 3. The last appeal is by the Public Prosecutor and it is an appeal from the acquittal of the 5th accused in the case. There were five accused in the case of whom the 1st accused as well as the 5th accused were acquitted, and no appeal has been filed against the acquittal of the 1st accused.
I shall first deal with the appeal by the 4th accused. So far as he is concerned the evidence is overwhelming that he was found in possession of materials for counterfeiting Government currency notes of ten rupees denomination at Nidadavole Station when he was arrested. Several blocks containing engravings of the note were found inside his banian pocket when he was searched in the presence of mediators most of whom are quite respectable and against whom nothing can be said. So far as his conviction under S. 489-D, Indian Penal Code, is concerned, there can be no doubt that the evidence fully supports it. It may be mentioned in this connection that when he was asked to plead to the charges he stated that he would tell the truth and what happened, whatever the result may be, and when warned that he was not to be taken as an approver and that he was not bound to say anything except to plead to the charge, he said that “the offences were committed by other accused. I was also with them”. It is therefore clear that he had really no defence worth mentioning and as already observed his conviction under S. 489-D is obviously right. Whether the conviction under the first count of conspiracy is right or not will be considered when the case against the second and third accused are dealt with. The 2nd and 3rd accused have been convicted of conspiracy as well as of abetment of the possession of counterfeiting materials by the 4th accused. As regards the charge of abetment, there is really no meaning in it. It is not explained how the possession of counterfeiting materials by the 4th accused was abetted by any of the other accused. Unless the charge of conspiracy holds good, there is nothing in the charge of abetment of possession of counterfeiting materials by the 4th accused. The substantial charge against accused 2 and 3 is that of conspiracy, the conspiracy being to sell counterfeiting materials to P.W 5 who was employed by the Police to act as a sort of decoy to persons who were suspected to be engaged in making and using counterfeiting materials. The offence of conspiracy rests entirely on the evidence of P.Ws 1, 3 and 5, of whom P.Ws 1 and 3 are a Sub Inspecter and a Head Constable attached to the C.I.D and P.W 5 as already observed is a decoy employed by the C.I.D for the purpose of detecting counterfeiting cases. The evidence of conspiracy is mainly that of P.W 1, though there is some evidence relating to it given by P.Ws 3 and 5. Objection was taken during the course of the trial to the admission of evidence of statements made by the accused to P.W 1 in the course of his investigation. The objection was overruled by the learned Judge apparently on the ground that P.W 1 was not acting under Chap. 14 of the Criminal Procedure Code and that he was not investigating under S. 156 or S. 157 of the Code. The other objection that the statements amounted to confessions made to a Police Officer was also overruled on the ground that the statements did not amount to confessions. I am of opinion that both these objections were sound and should have been allowed. There can be no doubt that P.W 1 was investigating an offence at least after July 1936 when he received information that the 2nd accused was actively engaged in making blocks and forged notes. It was held in King Emperor v. Nilakanta(1) that the statements made to a C.I.D officer must be deemed to be statements made in the course of investigations by him though in that case the statements being oral, it was held that S. 162 would not apply. This view however has been overruled by the Full Bench decision in Thimmappa v. Thimmappa(2) according to which oral statements no less than written statements come within the purview of S. 162, Criminal Procedure Code. As regards the other objection, there can be no doubt that the statements were relied upon for the purpose of fastening guilt on the persons who made them, and though the statements taken separately may not amount to complete confession of any crime, nevertheless the statements taken together show that the accused who made them were engaged in criminal conspiracy and it was for the purpose of establishing this fact that the statements were sought to be used. It is therefore obvious that the statements did really amount to confessions made to a Police Officer. A number of documents such as police diaries have been admitted wholesale in evidence by the learned Judge in the course of the trial, namely, Exs. E to E. 4, O. 3 and O. 4, Exs. Q, R, S. DD and FF and BBBB. The learned Public Prosecutor does not defend this wholesale introduction of police diaries as evidence during the trial, and it is obviously indefensible. There can be no doubt that the case against accused 2 and 3 in particular has been seriously prejudiced by the admission of such inadmissible evidence during the trial, and I have little doubt that it was the admission of these documents that was mainly responsible for the opinions expressed by some of the assessors against accused 1, 2 and 3. The only admissible evidence really is that of P.Ws 1, 3 and 5 so far as it relates to the conduct of the accused, apart from the statements said to have been made by them. The evidence as to the conduct of these accused does not show beyond doubt that they were engaged in a criminal conspiracy. Even apart from this, it must be remembered that P.Ws 1 and 3 as well as P.W 5 though engaged really in detecting counterfeiting cases, were actually instigating persons who were suspected to be in possession of counterfeiting materials to sell them for a consideration; in fact the case for the prosecution was that all the time P.W 1 was engaged with the assistance of P.W 5 in obtaining a seller of counterfeiting materials, and that finally a bargain was struck whereby Rs. 3,300 was to be paid as the price of the blocks in question. It has been contended that these persons have been really instigating the commission of the very offence in respect of which the accused are charged as conspirators. It is urged that these witnesses come under the category of accomplices and that their evidence cannot therefore be accepted or acted upon in the absence of material corroboration. The question is not an easy one to decide, namely, whether P.Ws 1, 3 and 5 were acting as accomplices or acting merely as spies. The decision in Queen Empress v. Javecharam, which was followed in Hasura Singh v. Emperor, supports the contention of Mr. K.S Jayarama Aiyar on behalf of the appellant. On the other hand, the learned Public Prosecutor relies on the ruling in Emperor v. Chaturbhuj*(3), which is followed in Govinda Balaji v. Emperor(4). It is stated that there is no reported case decided by this High Court dealing with this point. It seems to me that the motive of the person who instigates is not the only determining factor; in other words, even if the object of the person who instigated another to commit a crime is to catch him in the act of committing the crime, instigation by him nevertheless amounts to abetment of the offence, and the abettor must be regarded as an accomplice when the object of the instigation is to make the offender commit the offence, and the person who was instigated actually commits the offence. In any case even if these witnesses are not to be regarded as accomplices in the strict legal sense, nevertheless their conduct has been such that their evidence requires to be viewed with caution. So far as their evidence concerns the 1st and the 5th accused, it has not been accepted by the learned Sessions Judge. The principal witness for prosecution is P.W 1 and he is described by the learned Judge as the principal actor in the drama. His story has not been accepted so far as it implicates accused 1 and 5 and that story is a very material portion of the story related by him in his evidence. It is not possible to say that while the material portion which relates to accused 1 and 5 cannot be accepted, the rest of it can be accepted without doubt or hesitation. That portion of the story which relates to accused 1 and 5 also implicates the other accused. It is in my opinion not safe to act upon his evidence. A good part of it is untrustworthy and cannot be acted upon. If the conviction of the 4th accused depended on the evidence of these witnesses, that also could not stand. But his conviction under S. 489-D rests not on the evidence of P.Ws 1, 3 and 5 but on the evidence of the mediators and others who were present when counterfeiting materials were found actually in his possession. Even otherwise, the evidence which implicates accused 2 and 3 is not of a strong character. The learned Sessions Judge refers to certain telegrams and letters which passed between the parties but most of them had not been proved satisfactorily; for instance Exs. B and G-2 which are pressed against accused 2 have not been proved to be in the hand-writing of the 2nd accused. So far as Ex. B is concerned, the Government expert is of opinion that it is not his hand-writing, and as regards Ex. G-2 the opinion that it is in the handwriting of accused 2 was given with some hesitation or misgiving. As regards the 3rd accused, reliance is placed on Exs. TT, K-3 and H. 3. Ex. TT contains a correction which is left unexplained, the correction being in another handwriting. The language employed in these and other documents is so vague that it is impossible to say that they refer to any projected sale of counterfeiting materials or to the commission of any other crime. Substantially the defence of these two accused was that they were employed as police informants by P.W 1 to assist him in getting information as to the persons who were in possession of counterfeiting materials. In other words, their defence was they were actively assisting P.W 1 and P.W 5 to discover the real offenders who were responsible for making and using counterfeiting materials and to bring the latter into touch with the former. It is alleged that they knew P.W 1 for some time and knew him to be a C.I.D Head Constable. No doubt P.W 1 was posing as one Suryanarayana, the supposed brother of P.W 5, for the purpose of infusing confidence among persons who were suspected to be in possession of counterfeiting materials. But the defence of accused 2 and 3 was that this was known to them to be a pose and that they knew the real personality of P.W 1 and knew him to be a C.I.D Head Constable engaged in the investigation of counterfeiting offences. If there is any truth in this defence, it is obvious that accused 2 and 3 are as innocent as P.W 1 himself. They were engaged along with him and to assist him in unearthing the conspiracy and the entire evidence against them is easily explained away once it is found that they were really assisting P.W 1 in his investigation. So far as the 2nd accused is concerned, the fact that he was assisting P.W 1 in his investigation appears to be established by certain admissions made by some of the prosecution witnesses; for instance P.W 15 says that the first thing which the 2nd accused did when he was arrested along with others was to cry out “why do you arrest me, I am one of you”. It is not suggested that P.W 15 is not telling the truth when he gives this evidence, and if it is true that the second accused cried out in this manner immediately on his arrest, along with the other accused, it renders highly probable his defence that he was really assisting P.W 1 all the time. It is not likely that he would have thought of this defence and made this cry if that was not the case. P.W 7 says that the 2nd accused had told him that P.W 1's name was Appa Rao, his assumed name being Suryanarayana and that he once heard accused 2 calling him by his real name, Appa Rao, when they were going to a coffee hotel. No doubt this witness was attempted to be treated as a hostile witness by the Public Prosecutor though the attempt failed. There is also evidence for the defence, namely, the evidence of D.Ws 2 to 5 to the effect generally that P.W 1 was well known as the Head Constable of the C.I.D in Nuzvid. On the whole, therefore, it appears to be more likely than otherwise that the 2nd accused's defence that he was only assisting P.W 1 in his enquiry is true. If so, it is obvious that he cannot be regarded as being one of the conspirators. The 3rd accused's version has not been supported to the same extent by evidence, but the evidence against him is easily explained away on this basis, that is to say, he was only assisting P.W 1 to get into touch with the person or persons who were in possession of counterfeiting materials. In any case the evidence against him is quite insufficient, in my opinion, to support a conviction for conspiracy. In fact there is no good reason to suppose there was any conspiracy so far as any of the accused other than the 4th accused was concerned. It follows from what I have said above that the convictions of accused 2 and 3 must be set aside and the conviction of the 4th accused also under the count of conspiracy and the sentence imposed on him under S. 120-B should also be set aside. The appeal of the 4th accused is otherwise dismissed. The appeals of accused 2 and 3 are allowed and their convictions and sentences are set aside and they are acquitted. So far as the appeal by the Public Prosecutor against the 5th accused is concerned, there is no substance in it; the acquittal of the 5th accused was right and that appeal is dismissed.
Orders accordingly.
N.R.R
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