SHEIKH KHADER SAHIB Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) 1 of 5 In Re: Sheikh Khader Sahib and Anr. vs. (20.04.1949 - MADHC) 6/19/2007 1. Accused 3 and 1 are the petitioners respectively in the above cases. They were convicted and sentenced to rigorous imprisonment for six months by the stationary Sub-Magistrate, Cuddappah, for an offence under Section 411, Penal Code. In appeal, the Sub-Divisional Magistrate, Cuddappah, confirmed the convictions and sentences.

(2.) On 27th November 1946 between 7 and 8 P. M., there was a theft of gold and diamond jewels, cash and other properties of the value of about Rs. 10,000 in the house of one Rao Sahib K. Venkatesam Chetti in Cuddappah town. The Circle Inspector of Police on receipt of information, investigated the case. In the course of the investigation, he recovered M. OS. 1 to 4 from the tank bund on 28th November 1946. The next day he had the tank searched as a result of which he recovered M. OS. 5 to 38. He suspected accused 1 who was traced and arrested on 18th December 1946 and he made a statement in consequence of which M. OS. 39 to 62, 72 to 82, 85 and 86 were recovered from a pit adjoining the pial of the house of accused 3. Accused 3 was then arrested and on information furnished by him, M. OS. 63 and 64 were recovered from a pit under a flower pot in the backyard of his house. A search of his house resulted in the recovery of a small tin, M. O. 83 containing Rs. 382-8-0. He was then taken to the police station and there he made a further statement in consequence of which M. OS. 65 to 71 were recovered from a pot buried in a corner of the kitchen of accused 3. The properties were later identified by P. W. 1 as his. The case against the petitioners rests mainly on the statements made by them under Section 27, Evidence Act and the consequent recovery of the stolen articles.

(3.) The statement attributed to accused 1 and admitted by the lower Court is as follows: "On 27th November 1946, i. e., the second day of Moharram I brought out a trunk from the residence of Rao Sahib P. Venkatesam Chetti at about 7-30 in the evening. I bundled the jewels that were in the trunk in a cloth and I butied that cloth bundle by the side of the pial of Khadar Sahib in a pit. I will show you the spot." Accused 3, as already stated, made two statements. The portions admitted by the lower Court are: (a) "I dug out the pit to find out what it contained and found a number of jewels. I took out one gold panniru buddi and one gold kadiam, set with stones from among the jewels and kept back the bundle in the pit. I buried the gold panniru buddi and the hand kadiyam in my backyard under a flower pot in a pit. I will point out the spot." (b) "I took some more jewels from the place where Seenu concealed them in addition to gold panniru buddi and gold kadiam. I buried them in my house in one corner of the kitchen. I will point out the place." Page 2 of 5 In Re: Sheikh Khader Sahib and Anr. vs. (20.04.1949 - MADHC) 6/19/2007 On the above two statements by the two petitioners they were convicted and sentenced as aforesaid. The only point in revision is whether the statements admitted by the lower Court are admissible and if not; to what extent they are admissible. According to the Pull Bench decision of our High Court in Athappa Goundan, In re, I. L. R. (1937) Mad. 695 : (A. I. R. (24) 1937 Mad. 618 : 38 Cr. L. J. 1027 F. B.), the whole of the above statements will be admissible. But that decision has been overruled by the Judicial Committee in Kotayya v. Emperor, I. L. R. (1948) Mad. 1 : (A. I. R. (34) 1947 P. C. 67 48 Cr. L. J. 533) in which their Lordships said that "in their Lordships' opinion Athappa Goundan, In re, I. L. R. (1937) Mad. 695 : (A. I. R. (24) 1987 Mad. 618 : 38 Cr. L. J. 1027 F. B.) was wrongly decided." In the Privy Council case, the statement that was admitted by the lower Court was this :