Supreme Court: In an appeal filed by the appellant against his conviction by the Sessions Judge, Ratnagiri (‘Sessions Judge’) of the offences under Sections 120-B1 and 4112 of the Penal Code, 1860 (‘IPC’), the three-Judges Bench of N.H. Bhagwati*, B. Jagannadhadas and T.L. Venkatarama Ayyar, JJ., stated the circumstances were enough to establish that the appellant was guilty of a conspiracy with Accused 1 in the commission of the offence under Section 4093 of IPC. Further, the confession of the Accused 1 was also brought to aid by the Sessions Judge as lending assurance to the evidence regarding the complicity of the appellant in the offence. The Supreme Court stated that though the confession could not be used as substantive evidence, but if the circumstances set out were sufficient to establish the complicity of the appellant, the confession of Accused 1 could certainly be taken into consideration as lending assurance to establish the guilt of the appellant.
Thus, the Supreme Court stated that the appellant was rightly convicted of the two offences under Section 120-B and Section 411 of the IPC.
Background
The appellant was Accused 2 in the case and was charged for conspiring with Accused 1 to commit an offence under Section 409 of the IPC with respect to the cash balance and valuable ornaments pledged with Canara Industrial Banking Syndicate, Malvan (‘the Bank’). Accused 1 was the agent of the Bank and was entrusted with dominion over the said property. Accused 1 was also charged with receiving and retaining the stolen property, with respect to which the above offence under Section 409 of the IPC was committed.
The prosecution case was that the Accused 1 was the agent of the Bank and was in trouble over certain affairs of the Bank. He rejoined the employ of the Bank after leave and the appellant being a friend of Accused 1 came to know about those troubles and persuaded Accused 1 to remove the cash balance and the ornaments and hand them over to him. The appellant promised that on the day following such removal a robbery would be faked in the strongroom of the Bank which would make it appear as if some outside persons had entered the premises, gagged and bound Accused 1 and removed the said cash and ornaments.
Thereafter, Accused 1 yielded to this persuasion and on 12-4-1951 removed Rs 42,000 in cash and many ornaments and handed them over to the appellant at night. In the afternoon of 13-4-1951 the appellant was alleged to have gone to the Bank and the robbery was faked in the strongroom of the Bank. Accused 1 appeared to have become unconscious and was groaning when the alleged robbery was discovered. Medical aid was sent for and he was apparently revived. Subsequently, investigation was carried out and the appellant was discovered going to Kolhapur by a circuitous route. Further, all the gold ornaments, which were missing from the strongroom of bank was recovered on 20-04-1951, from a pit dug on the padvi of the house in Mavlan.
police challaned the appellant along with Accused 1 and the other accused for the charges set out above. The appellant was tried by the Sessions Judge and convicted of the offences under Sections 120-B and 411 of the IPC.
Analysis, Law, and Decision
The Supreme Court observed that it was clearly established that a sum of Rs 42,000 in cash and valuable ornaments pledged with the Bank were removed from the strongroom of the Bank when Accused 1 was found gagged and tied on the afternoon of 13-4-1951. The prosecution’s story was that they were removed on afternoon of 12-4-1951 and were handed over to the appellant on the same day. However, there was no direct evidence on these facts as alleged by the prosecution.
The Supreme Court stated that there was evidence to show that the appellant had made some days enquiries from one Vithal Vishnu Karekar, prior to the incident, about pots for melting gold and asked him whether the “Mushis” were made at Malvan. One Vithal Vishnu Karekar had replied that they were not made at Malvan but could be purchased at Kolhapur. Thereafter, the appellant had then made enquiries as to how much time was necessary to melt gold and the necessary information regarding materials required to melt gold. The appellant had also after the incident gone to Kolhapur and when he ultimately reached Kolhapur, he was arrested by the police.
The Supreme Court also noted that the accused had also purchased two small pieces of ropes which were part of Article 1 before the Sessions Court from the shop, two or three days before the incident. The Supreme Court further stated that the circumstances of the faked robbery were also such that it could not have been committed by anybody except a person who was intimately acquainted with Accused 1 and was certainly neither female like Accused 3, nor servant like Accused 5. These facts taken along with the recovery of the ornaments from the padvi were sufficient to establish the charge of conspiracy against the appellant.
Further, the confession of the Accused 1 was also brought to aid by the Sessions Judge as lending assurance to the evidence regarding the complicity of the appellant in the offence. The Supreme Court stated that though the confession could not be used as substantive evidence, but if the circumstances set out above were sufficient to establish the complicity of the appellant, the confession of Accused 1 could certainly be taken into consideration as lending assurance to establish the guilt of the appellant.
Regarding the sum of Rs. 42,000 in cash which was removed from the strongroom of the Bank, the Supreme Court noted that it was urged that as per the entries in the cash book a sum of Rs 47,031-6-9 was the closing balance on the evening of 12-4-1951, and the entry regarding the same was signed by Accused 1. The ornaments which were pledged with the Bank would also be kept by Accused 1 in double lock safe in the presence of the Cashier. The Supreme Court stated that if the closing cash balance on the evening of 12-4-1951 was Rs 47,031-6-9 the story of the prosecution that the sum of Rs 42,000 was removed by Accused 1 in the afternoon of 12-4-1951 could not be true.
However, the Supreme Court observed that as per the evidence of the agent of bank, who succeeded Accused 1, the cash particulars of the book of the Bank showed that Rs. 42,000 out of Rs. 47,031-6-9 which was the closing cash balance on 12-4-1951, were in the double lock safe and Rs 5031-6-9 were in the single lock safe. If that was the case, once the surplus cash of Rs 42,000 had been put in the double lock safe it would not be necessary to count it afresh every evening unless and until there were operations in the cash account which necessitated either reduction of that amount or an addition thereto. The same would be the position in the case of the ornaments, as they were also put in the double lock safe.
The Supreme Court observed that unless there were operations in the pledge account, there would be no necessity of opening the double lock safe in which the ornaments were kept and the process of checking up the ornaments in the double lock safe would not be certainly repeated every evening. If this circumstance was considered, there was nothing in the entries in the cash book or in the evidence on record which would affect against the story that Rs 42,000 in cash and the ornaments, were removed from the strongroom of the Bank in the afternoon of 12-4-1951.
Therefore, the Supreme Court stated these circumstances were enough to establish that the appellant was guilty of a conspiracy with Accused 1 in the commission of the offence under Section 409 of IPC. If this conspiracy was established it was equally clear that the appellant was guilty of the offence under Section 411 of the IPC also, as he received in any event the ornaments which were recovered from the padvi of the house on 20-4-1951 knowing them to be stolen property.
Thus, the Supreme Court stated that the appellant was rightly convicted of the two offences under Section 120-B and Section 411 of IPC. However, regarding sentences, the Supreme Court observed that the appellant was in custody and no bail was allowed to him. Therefore, the Supreme Court reduced the sentences of imprisonment passed upon him by the Sessions Judge to that of rigorous imprisonment for two years for the offence under Section 120-B of IPC and to that of rigorous imprisonment for one year for the offence under Section 411 of IPC, maintaining the sentence of fine awarded to him under Section 411 of IPC.
[Vaikunth Giri Avadhi v. State of Bombay, (1954) 1 SCC 625, decided on 02-04-1954]
*Judgment authored by- Justice N.H. Bhagwati
Advocates who appeared in this case :
For the Appellant: J.B. Dadachanji, Advocate (Appointed at the Government expense);
For the Respondent: Porus A. Mehta, Advocate.
*Note: Confession of co-accused
The Supreme Court in Haricharan Kurmi v. State of Bihar, 1964 SCC OnLine SC 2, held that,
“A confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right.”
Buy Penal Code, 1860 HERE
1. Corresponding Section 61 of Nyaya Sanhita, 2023 (‘BNS’)