IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 1ST AUGUST 2011 / 10TH SRAVANA 1933 Crl.Rev.Pet.No. 888 of 2001() ----------------------------- CRA.214/1999 of ADDL. SESSIONS COURT, ALAPPUZHA CC.303/1995 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHERTHALA .................... REVN. PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------------- OMANAKUTTAN, S/O.KUMARA PANICKER, VELIYIL HOUSE, WARD NO.IX, KADAKKARAPPALLY PANCHAYATH, CHERTHALA. BY ADV. SRI.J.OM PRAKASH RESPONDENT/RESPONDENT/STATE: --------------------------------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT F KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. IV.PRAMOD THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK N.K.BALAKRISHNAN, J ----------------------------------------- Crl.R.P No. 888 OF 2001 ---------------------------------------- Dated this the 1st day of August, 2011. O R D E R This revision is filed by the accused challenging the conviction and sentence passed against him for offences punishable under Sections 457, 380 and 461 of IPC. The incident of theft took place on 26.3.1995. PW3 and PW2 her daughter along with PW1 (husband of PW3) while sleeping, happened to wake up as PW3 felt somebody touching her leg. They switched on the light and then found the Alamarah lying open. It was realised that the gold chain worn by PW2 was missing and gold ear studs kept inside the Alamarah were lost. Further the iron bars of the ventilator were found removed. PW1 to 3 realised that somebody committed house breaking by night, entered the room and committed theft of the gold chain and ear studs mentioned above. But no complaint was filed by them. The accused was taken into custody by PW8 the Sub Inspector of Police Crl.R.P No. 888 OF 2001 2 in connection with another crime. During interrogation, PW8 could discern that the accused had committed theft of the gold chain and ear studs mentioned above from the house of PW1. Based on the statement alleged to have been given by the accused PW8 went to the shop of PW6 and seized a gold ingot. PW6 identified the accused. He told the police that the accused had sold to him gold chain and ear stud. The prosecution relied upon the evidence of recovery of the gold ingot to prove the charge against the accused. 2. The learned Magistrate accepted the evidence given by the prosecution and found the accused guilty. It was confirmed by the learned Additional Sessions Judge. 3. Sri.Omprakash the learned counsel appearing for the revision petitioner would submit that since the prosecution entirely relies upon “Section 27 recovery”, the prosecution can succeed if only it is proved that there was in fact a discovery of fact as envisaged under Section 27 of the Evidence Act. The learned counsel would invite my attention Crl.R.P No. 888 OF 2001 3 to the deposition given by PW8 before the learned Magistrate. The learned counsel is justified in his submission that only a vague and imprecise statement was given by PW8 with regard to the statement given by the accused to PW8 and that as led by the accused PW8 went to the shop of PW6 and from there the gold ingot (MO1) was seized. Ext.P2 is the mahazar prepared for the seizure of MO1. Ext.P4 is stated to be the relevant portion of the statement given by the accused, admissible under Section 27 of the Evidence Act. 4. The learned counsel would submit that though authorship of concealment as such is always not required to make his statement admissible under Section 27 of the Evidence Act, in the particular factual matrix, as the whole case of the prosecution is founded on the alleged discovery of fact under Section 27 of the Act, the statement so deposed to by the accused in his own version should be deposed to by the Investigating Officer since Section 27 Crl.R.P No. 888 OF 2001 4 itself makes it unambiguously clear that it is the statement deposed to by the investigating officer that is admissible in evidence and not the subsequent recovery of the gold ingot, alleged to have been made by melting the chain or ear stud as the case may be. Therefore, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, so much of such information which relates distinctly to the fact discovered alone is relevant. The fact that statement which may be relevant under Section 27 is incorporated in Ext.P2 mahazar and was also separately taken out and produced before court as Ext.P4 cannot satisfy the requirement of Section 27 of the Evidence Act. The Section mandates that in order that the statement is to be admissible in evidence under Section 27, it should be deposed to by the officer and it must distinctly relate to the fact discovered. The fact that it was sold to a particular person or sold at a particular place would be admissible under Section 27 of the Evidence Act provided Crl.R.P No. 888 OF 2001 5 what is deposed to must relate distinctly to the fact discovered. Therefore, to make it admissible what was deposed to by the accused to the police must be deposed to by the police in court as had been stated by the accused. If a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true; ie. the statement can be found to be true by the confirmation of the fact discovered. So long as the connecting link, namely; that it was so deposed to by the accused to the investigating officer and that it was in the very same language or fashion that was reproduced -deposed to by the investigating officer is missing, the so called recovery of MO1 from the shop of PW6 cannot be made admissible under Section 27 so as to fasten the criminal liability on the accused, the learned counsel submits. I find force in that submission. True, the conduct of the accused in leading the police to that shop and the fact that gold in the form of ingot was recovered from that Crl.R.P No. 888 OF 2001 6 shop may be a conduct relevant under Section 8 of the Evidence Act. If there was any other evidence, this evidence could have been used to corroborate that evidence. But based on the aforesaid conduct alone an accused can not be found guilty. Had it been admissible under Section 27 of the Evidence Act the accused could have been held guilty. 5. The learned counsel would also submit that the fact that no complaint was filed by PW1 or PW2 regarding the theft of the articles and that no other connecting materials could be collected by the investigating officer has to be considered along with the inadmissible statement tried to be pressed into service by the prosecution to secure a conviction of the accused. It gives a pejorative reflection of the ill equipage or insincere attitude of the investigating agency and the equally insincere or inept handling of the case at the trial stage by the learned prosecutor. It is a matter to be seriously taken note of lest such instances Crl.R.P No. 888 OF 2001 7 should occur enabling or allowing the offender to go scot free: Since the statement alleged to have been given by the accused which led to the discovery of the fact has not been specifically deposed to by the investigating officer, that part of evidence cannot be admitted under Section 27 of the Evidence Act. There is no other evidence that can be relied upon by the prosecution to prove the complicity of the accused. Hence the conviction against the accused cannot be sustained. In the result, conviction and sentence passed against the accused are set aside. He is acquitted of the offences charged against him and shall be set at liberty in this case. N.K.BALAKRISHNAN, JUDGE mns