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2022 Supreme(Ker) 431
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J.
Maniyan, S/o. S.Kuttan Panicker – Appellant
Versus
State Of Kerala – Respondent
Crl.A No.906 of 2006
Decided on : 19-07-2022
Advocate Appeared:
For the Appellant : Sri.Sasthamangalam S. Ajithkumar, Smt.Deepthy.S.Nath, SRI.Prabhu Vijayakumar, Sri.P.K.Shiyas, Smt.Veena Krishnan
For the Respondent: Sri. Sanal P. Raj, Public Prosecutor
Point of Law : Order to sustain guilt of accused, recovery should be unimpeachable and not be shrouded with elements of doubt.
Headnote:
Indian Penal Code, 1860 - Sections 489A, 489B, 489C, 489D and Section 120(B) read with Section 34 – Appeal - Criminal conspiracy - Using as genuine, forged or counterfeit currency-notes or bank-notes - Possession of forged or counterfeit currency-notes or bank-notes - Making or possessing instruments or materials for forging or counterfeiting currency-notes or bank-notes - Information received to effect that accused in this case were indulged in counterfeiting currency notes with an intention to use and possess same as original currency notes - Court can convict an accused exclusively on basis of his disclosure statement and resultant recovery of inculpatory material. However, in order to sustain guilt of such accused, recovery should be unimpeachable and not be shrouded with elements of doubt. (Para 10).
Findings of Court :
Court found that evidence of PW15 and articles recovered in pursuance disclosure statement as per Ext.P6, mahazar is only evidence available before court to incriminate appellant - At same time, it has come out in evidence through PW15 that, though he received information from PW7 in year 1991 that a printing machine addressed to appellant was received by PW7, appellant was arrested only and thereafter, recovery was effected. In this matter, prosecution failed to recover even a single 10 rupee fake currency note to establish that MO2 to MO5 were used for counterfeiting - It is true that PW15 alone supported recovery effected after 5 years of registration of crime, that too after having knowledge regarding same in 1991 - Thus evidently, recovery effected after 5 years of registration of crime is in midst of doubts. It is difficult to believe that appellant kept MOs2 to 5 for a period of 5 years, at his dwelling house, even after registration of crime, arraying him as an accused therein - In fact, if recovery evidence is in midst of doubts, conviction on its sole basis is not safe - That apart, in this matter, no convincing evidence forthcoming to hold that accused possessed MOs2 to 5 knowing or having reason to believe that it is intended to be used, for forging or counterfeiting any currency-note or bank-note .
Result : Appeal allowed
JUDGMENT :
This appeal is at the instance of the 2nd accused in S.C.No.55/2003 on the file of the Additional Sessions Judge (Fast Track-III), Thiruvananthapuram, filed under Section 374(2) of the Code of Civil Procedure and the appellant impugns conviction and sentence dated 19.04.2006 imposed against him, in this appeal. Respondent herein is the State of Kerala represented by the Public Prosecutor.
2. Heard the learned counsel for the appellant Adv. Sasthamangalam S. Ajith Kumar and Sanal P. Raj, the learned Public Prosecutor for the State. Perused the trial court records.
3. The prosecution case is that a reliable information received to the effect that the accused in this case were indulged in counterfeiting currency notes with an intention to use and possess the same as original currency notes. Accordingly, crime was registered alleging commission of offence under Sections 489A, 489B, 489C, 489D and Section 120(B) read with Section 34 of the Indian Penal Code.
4. On investigation of the Crime registered as CBCID No.34/CR/87, final report laid before the Magistrate Court and the case was committed to the Sessions Court for trial and disposal. The Sessions Court made over the case to the Additional Sessions Court-III, for trial and disposal.
5. The Additional Sessions Court, after completing the pre-trial legal formalities framed charge for the said offences and tried accused Nos.1, 2, 4, 5 and 6 and split up the case against the accused No.3 who had been absconding.
6. During trial, PWs1 to 16 were examined and Exts.P1 to 15 were marked on the side of the prosecution. MO1 to MO28 series also were marked.
7. Thereafter, the accused were questioned under Section 313 Cr.P.C. and provided them opportunity to adduce defence evidence. But no defence evidence was adduced.
8. The learned Sessions Judge, on analysing the evidence, found that accused Nos.1, 2, 4, 5 and 6 are not guilty of the offences and they were acquitted. But the 2nd accused/appellant was found guilty for the offence punishable under Section 489D of the Indian Penal Code and he was convicted and sentenced to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs.5,000/-.
9. While assailing the above conviction and sentence, it is argued by the learned counsel for the appellant that the recovery of MO2 to MO5 as per the disclosure statement given by the appellant herein marked as Ext.P6(a) is the sole evidence relied upon by the Sessions Court to convict and sentence the appellant under Section 489D of the Indian Penal Code. The learned counsel would also point out that, though the crime was reigstered as early as in the year 1987, the appellant was arrested only in the year 1993 and thereafter, much belated recovery of MO2 to MO6 were effected. It is also submitted that PWs10 and 11, two independent witnesses examined by the prosecution to prove Ext.P6 Mahazar turned hostile for prosecution and they even denied their signature in Ext.P6. It is also submitted that, though Ext.P6 was prepared on 11.08.1993, the same reached in the court only on 27.08.1993. Therefore, the authenticity of Ext.P6 is in doubt and the prosecution not given any explanation for the delay in producing Ext.P6 to the court in time. According to the learned counsel, merely relying on recovery evidence which had effected at a belated stage where the independent witnesses turned hostile, it is not safe to fasten criminal culpability on the appellant. Therefore, the appellant is entitled to get benefit of doubt and it is not safe to hold that the appellant possessed MO2 to MO5 instruments for counterfeiting currency-notes or bank-notes. Therefore, he is entitled to acquittal.
10. It is also submitted by the learned counsel for the appellant that in the decision reported in Bijender @ Mandar v. State of Haryana [2021 KHC 6685], the Apex Court held that at times the Court can convict an accused exclusively on the basis of his disclosure statement and the resultant recovery of inculpat
