STATE OF KERALA Vs. K CHEKKOOTTY

JUDGEMENT

(1.) THIS appeal has been preferred by the State against the acquittal of the respondent by the Munsiff-Magistrate, Purambra, on a trial for an offence under Section 380 I. P. C. The case of the prosecution was, that at 7-30 P. M. on the 25th July. 1964, when P. W. 2 was standing near an outer-window of her house, the accused standing outside, suddenly put his hand through the window, snatched a part of the gold chain which she was wearing on her neck and disappeared with it. The rest of the chain fell into her blouse. She reported the incident to her father P. W. 1, when he came home later in the night. Me preferred a complaint, Ext. P-1 to P. W. 6, the Sub-Inspector of police, Perambra, on the next morning. During investigation P. W. 6 seized the remaining part of the chain and the blouse into which it fell. On the 27th July, on suspicion, the accused was traced and was found in a paddy field in front of the shop of P. W. 8; he was then arrested. He then told P. W. 6, that he had buried the chain near the southern boundary of Kariyotta Paramba from where it was recovered under Ext. P-5 seizure list. The statement the accused made to P. W. 6, is recorded in Ext. P 6. The accused denied the charge and said Ext. P-6 is not voluntary.

(2.) AT the trial, the chain M. O. 1, which comprised both parts, was identified by P. W. 3, a goldsmith, as what he made for P. W. 2 for her marriage. P. Ws. 1 and 2 identified M. O. 1 and P. W. 2 testified to the theft. With a part of the chain in the possession of P. W. 2, there was little difficulty in identifying the other part. On this evidence, the theft as well as the identity of the part of the chain recovered, may be held to be proved. The Magistrate has not said anything to the contrary.

(3.) THE important piece of evidence te connect the accused with the crime, is the information supplied by him, which led to the recovery of the chain from Kariyottu Parainba. This information is part of the statement Ext. P-6, which was made in front of the shop of P. W. S and in the presence of P. W. 7 and P. W. 8 and which was therefore attested by them. The Magistrate hold Ext. P-6 to be inadmissible chiefly for two reasons, first, that it was attested by witnesses, and second, that it embodied confessional statement as to the commission of the crime itself. I am satisfied that both these reasons are unsustainable. As for the former I feel, that the Magistrate has misunderstood the rule in Karunakaran v. State of Kerala, 1960 Ker LT 959, on which he has relied. The true objection to attestation of a statement under Section 27 of the Evidence Act leading to discovery is not so much to the fact of attestation, as to the object with which it is sometimes resorted to. The bar against signed statements in Section 162, Crl. P. C. has no application, because the statement attested is not that of the attestors. Sometimes, it happens that on questioning the accused, he makes a statement which gives information to tie police-officer which ultimately leads to the discovery of a fact, but instead of relying on that statement, the police-officer proves a later statement of the accused containing the same information, but attested by witnesses and perhaps recorded in a more formal manner. This when done, is often due to a misapprehension on the part of the officer, that his own evidence as to the information, standing by itself, may not be accepted by a Court of law, but that such evidence when fortified by that of attestors might be accepted. In such a case the information, let alone the statement, which leads to discovery is really that contained in the first statement, and it is therefore that, which should be proved. But when the first statement is recorded and witnesses are present, nothing in law prevents them from testifying to it and even from attesting it, though such attestation is not necessary and might go against tbe spontaneity of the statement. In the case cited, the statement of the first accused relied on which was attested, followed the statement of the second accused which contained the relevant information, and so the discovery was not in pursuance of the former; the first accused's statement was held to be inadmissible. As for the latter reason, that Ext. P-6 contained confessional statements as to the commission of theft, the Magistrate ought to have eschewed all those statements and considered only that part of Ext. P-6 which gave information leading to discovery, viz. "i buried. . . the chain at the southern boundary of Kariyottu Paramba and covered it with grass. I shall show the place to you. "