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Nazar v. State by - CRIMINAL APPEAL NO.986 of 2003  RD-TN 1293 (4 April 2007)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 04/04/2007
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR
CRIMINAL APPEAL NO.986 of 2003
CRIMINAL APPEAL NO.1096 OF 2003
CRIMINAL APPEAL NO.655 of 2004
CRIMINAL APPEAL NO.41 of 2004
CRIMINAL APPEAL NO.84 of 2007
Nazar .. Appellant in
CA.No.986 of 2003
Periyasamy .. Appellant in
CA.No.1096 of 2003
1.Ravi alias Kathatti Ravi
2.Linganathan alias Lingam .. Appellants in CA.No.655 of 2004 M.Velmurugan @ Velu .. Appellant in CA.No.41 of 2007 P.Ashok Kumar @ Ashok .. Appellant in CA.No.84 of 2007 Vs.
the Inspector of Police,
Subramaniapuram Police Station,
Crime No.525 of 2001 .. Respondent in all the appeals These criminal appeals are preferred under Section 374 Cr.P.C. against the judgment of the learned Additional District and Sessions Judge (Fast Track Court No.III), Madurai in S.C.No.105 of 2002, dated 24.4.2003. For Appellants : Mr.P.Andiraj for A-1, A-2 and A-5 in CA.Nos.986/2003 and 655/2004 Mr.S.Ananth for A-4
in CA.No.1096 of 2003
for A-6 and A-3
in CA.Nos.41 and 84 of 2007
For Respondent : Mr.N.Senthurpandian, APP
(The judgment of the court was made by M.CHOCKALINGAM, J.) This judgment shall govern these five appeals, namely criminal appeal Nos.986 and 1096 of 2003, 655 of 2004, 41 and 84 of 2007. The first one is filed by A-1, the second one is filed by A-4, the third one is filed by A-2 and A-5, the fourth one is filed by A-6 and the fifth one is filed by A-3.
2.These appellants along with two others, who were ranked as A-7 and A-8, stood charged and tried as follows:
A-1 to A-3 and A-7 and A-8 - Section 449 IPC A-1 to A-3 - Section 302 r/w S.149 IPC A-7 and A-8 - Section 302 r/w S.109 IPC A-1 to A-8 - Sec.396 r/w 391 IPC A-1 to A-6 - Sec.396 r/w 391 r/w 34 IPC On trial, A-1 to A-8 were found guilty under Section 396 r/w 391 r/w 34 IPC and they were sentenced to undergo life imprisonment and to pay a fine of Rs.2500/-, in default to undergo one year SI. Hence, these appeals have been preferred by the appellants.
3.The brief facts of the prosecution case can be stated thus: a)P.W.1 is the wife of P.W.12. P.W.2 is the daughter of P.Ws.1 and 12. The deceased Gopinath is the son of P.W.1. P.W.12 is employed in a school, while P.W.1 was working in the Insurance Company. As usual, P.W.12 left for work by 9.00 a.m. P.W.2 also went to school by 9.00 a.m. P.W.1 left for job by 9.30 a.m. Since the said Gopinath was suffering from Stomach pain, he was in house. b)In the evening hours, it was P.W.2 who came to the house after school hours was over. She found the door was locked outside. Since P.W.2 had another key, she opened the door and went inside the house. She found her brother Gopinath in a pool of blood. She also found that the jewel box was broken and it was kept free. Immediately, she phoned over to P.W.1, who returned home. 30 sovereigns of gold jewels and Rs.38,000/- were found stolen. c)P.W.1 went to the respondent police station, where P.W.22, the Sub Inspector of Police was on duty at that time. P.W.1 gave Ex.P.1, the complaint to P.W.22, on the strength of which, a case came to be registered by the respondent police in Crime No.525 of 2001 under Sections 454, 380 and 302 IPC. Ex.P.26, the FIR was despatched to the Court.
d)P.W.23, the Inspector of Police, on receipt of the copy of the FIR, took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.4, the observation mahazar and drew Ex.P.27, the rough sketch. Photographs were taken through the Photographer. P.W.23 has conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.28, the inquest report. He also recovered the material objects from the place of occurrence under a cover of mahazar. Following the same, he sent the dead body of the deceased to the hospital for the purpose of post-mortem along with the requisition. e)P.W.19, the Doctor attached to the Madurai Medical College Hospital, on receipt of the requisition, has conducted post-mortem on the dead body of the deceased. He has issued Ex.25, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the external injury No.1 and its corresponding internal injuries, 24 to 30 hours prior to post-mortem.
f)On 26.8.2001, P.W.1 went to the police station and handed over 2 buttons to P.W.23. P.W.23 recovered the same under Form 95. Pending investigation, the Investigator arrested A-1 to A-3 on 15.09.2001 in the presence of the witnesses. A-1 came forward to give confessional statement voluntarily, which was recorded in the presence of the witnesses between 3.00 p.m. and 4.00 p.m., the admissible part of which was marked as Ex.P.12. In between 4.00 p.m. and 5.00 p.m., the second accused gave confessional statement, which was recorded in the presence of the witnesses, the admissible part of which was marked as Ex.P.10. The confessional statement of A-3 was recorded in between 5.00 p.m. and 6.00 p.m., the admissible part of which was marked as Ex.P.8. Pursuant to the confessional statement of A-3, he produced white stone golden Attigai, weighing 41.050 grams, from his house. Pursuant to the confessional statement of A-2, he produced M.O.30, the bloodstained shirt, M.O.6, Muthumalai, M.O.9, stud with white and green stones, which were recovered under a cover of mahazar. In pursuance to the confessional statement of A-1, he produced M.O.31, knife, M.O.17 (series), stud (visiri model), M.O.10 (series), Titanic stud, M.O.20, nose ring inserted with Muthu, M.O.18, nose ring, M.O.2, key, M.O.32, bloodstained shirt and M.O.3, cloth bag, which were recovered from his house under a cover of mahazar in the presence of the witnesses.
g)Based on the information given by A-1 to A-3, P.W.23 arrested A-5 and A- 6 near Madakulam railway gate at about 9.45 p.m. A-5 voluntarily came forward to give a confessional statement, which was recorded in the presence of the witnesses, the admissible part of which was marked as Ex.P.16. A-6 also came forward to give a confessional statement, which was also recorded in the presence of the witnesses, the admissible part of which was marked as Ex.P.14. Pursuant to the confessional statement, A-6 produced M.O.22 (series), computer model ear ring and M.O.14 (series), stud with white and merun colour stones, from his house and they were recovered under a cove of mahazar. In pursuance to the confessional statement, A-5 produced M.O.16 (series), stud with white and green stones, M.O.11 (series), stud with white and green stones, M.O.21 (series), stud with Lakshmi uruvam and M.O.19, nose ring, which were recovered from his uncle's house under a cover of mahazar. h)At about 2.00 a.m., P.W.23 seized rupees and dollar from P.W.14, which were given by A-1 and A-2 to P.W.14. P.W.23 arrested A-7 and A-8 in the presence of the witnesses. A-7 voluntarily came forward to give confessional statement, which was recorded in the presence of the witnesses, the admissible part of which was marked as Ex.P.21. A-8 also came forward to give a confessional statement, which was recorded in the presence of the witnesses, the admissible part of which was marked as Ex.P.19. Pursuant to the confessional statement, A-8 produced M.O.8, Dollar chain with Lakshmi uruvam, which was recovered from his house under a cover of mahazar. A-7, pursuant to his confessional statement, has produced M.O.15, dollar chain with Lakshmi padam, which was recovered under a cover of mahazar.
i)On 9.10.2001 at about 11.00 a.m., A-4 was arrested near bikkara power house. He voluntarily came forward to give a confessional statement, which was recorded in the presence of the witnesses, the admissible part of which was marked as Ex.P.23. Pursuant to the confessional statement, he produced M.O.12, bangle, M.O.13, dollar with the name of Gopi, and M.O.23, ring with red and white stones, which were recovered from P.W.15 under a cover of mahazar. All the accused were sent for judicial remand. All the M.Os recovered from the place of occurrence, from the dead body of the deceased and also the material objects recovered from the accused pursuant to the confessional statements were subjected to chemical analysis by the Forensic Sciences Department, which resulted in three reports, namely Ex.P.31, the Chemical Analyst's report, Ex.P.32, Serologist's report and Ex.P.33, the Physics Report. On completion of the investigation, the Investigating Officer has filed the final report.
4.The case was committed to the court of sessions and necessary charges were framed. In order to substantiate the charges, the prosecution has examined 23 witnesses and relied on 33 exhibits and 36 M.Os. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which they flatly denied as false. No defence witness was examined. The trial court heard the arguments advanced on either side and after scrutinizing the materials available, took the view that the prosecution has proved the case beyond reasonable doubt and has found the accused guilty under Sections 396 r/w 391 r/w 34 IPC and awarded life imprisonment along with fine and default sentence, which is the subject matter of challenge in these appeals before this court.
5.Advancing his arguments on behalf of the appellants, the learned counsel would submit that in the instant case, the prosecution had no direct evidence to offer; that the occurrence, according to the prosecution, has taken place on 6.8.2001 between 10.00 a.m. and 4.00 p.m.; that P.Ws.1 and 12, who were the parents of the deceased, were examined and P.W.2, who is the sister of the deceased, was also examined; that all of them, admittedly, were absent at the time of occurrence and thus, the case of prosecution was that in between 10.00 a.m. and 4.00 p.m., all the accused persons committed dacoity and murder and thus, it is a case of murder for gain; that the prosecution relied on six circumstances; that A-1 to A-8 assembled before the shop of P.W.8 with a plan to commit the offence on 6.8.2001 just before the occurrence, which was witnessed by P.W.8 and the accused have purchased cigarette from his shop; that P.W.10 was the another shop owner and all of them went to his shop at 12.00 noon; that the third circumstance was the evidence of P.W.11, who is a cooli and he witnessed all the accused sharing booty near the bridge; that so far as the next circumstance was concerned, A-1 and A-2 met P.W.14, an Auto driver, and gave 20 - Rs.500/- notes and also a dollar chain; that P.W.14, in turn, appeared before the police voluntarily on 16.9.2001 and handed over both the materials, which were recovered by the Investigator; that the fifth circumstance was that A-4 pledged some jewels with P.W.15, who was the fruit vendor, and got Rs.5000/- from her; that the last circumstance was A-4 met P.W.16, who was the mechanic and gave him some money and thus, the prosecution relied on the evidence of those witnesses, namely P.Ws.8,10,11,14,15 and 16; that unfortunately, all the witnesses have turned hostile and that the prosecution had no evidence to offer to connect the accused persons with the crime in question.
6.Added further the learned counsel that what was available for the prosecution was the recovery of different items from A-1 to A-8; that the only witness examined in this regard was P.W.18, V.A.O.; that so far as P.W.18 was concerned, his evidence is highly unreliable, self discrepant and inconsistent also; that he could not identify the jewels properly and thus, his evidence cannot be relied upon; that except this evidence, the evidence of P.W.9 was available; that according to P.W.9, he saw all the accused persons coming out of the house of P.W.1 at the time of occurrence; that when he was examined before the Court, he has deposed that he saw 4 or 5 persons coming from the house of P.W.1; that he has not identified any one of the accused; that he has further stated in his evidence that he did not know the accused previously; that if to be so, the conduct of identification parade was must, but it was not done so and hence, the evidence of P.W.9 was not available for the prosecution at all and no evidentiary value could be attached to his evidence; that all the accused persons were found with the jewels belonged to P.W.1 and they were recovered only on 15.9.2001 and therefore, there was a time interval of 40 days and thus, the recovery was not made immediately after the occurrence; that in the absence of any evidence as to the commission of murder, if the Court is of the considered opinion that there was recovery from all the accused in view of the evidence available, then the accused have got to be found guilty under Section 411 IPC and hence it has got to be considered by this Court.
7.Heard the learned Additional Public Prosecutor on the above contentions and this Court has paid its anxious consideration on the submissions made.
8.It is not the fact in controversy that one Gopinath, the son of P.Ws.1 and 12, was done to death in an incident that took place on 6.8.2001 in between 10.00 a.m. and 4.00 p.m. After registration of the case by the respondent police, the case was taken up for investigation by P.W.23, the Inspector of Police. After the inquest was made, the dead body of the deceased was subjected to post-mortem by P.W.19, the Doctor, who has issued Ex.P.25, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the external injury No.1 and its corresponding internal injuries, 24 to 30 hours prior to post-mortem. The fact that the deceased died out of homicidal violence was never questioned by the accused at any stage of proceedings and hence, it has got to be factually recorded so.
9.The gist of the case of the prosecution was that all the accused, who are appellants herein and A-7 and A-8 also, in view of the plan already made, made criminal trespass in the house of P.W.1 on 6.8.2001 between 10.00 a.m. and 4.00 p.m., caused the death of Gopinath and have stolen the jewels and money, which were recovered from them. The prosecution, in order to prove the case of murder for gain or dacoity, had no direct evidence to offer. As rightly pointed out by the learned counsel for the appellants, what was all available was the evidence of P.W.9. According to the prosecution, it was P.W.9, who saw all the accused persons coming out of the house of P.W.1 at or about the time of occurrence. But, at the time of evidence, he has not spoken the fact that he saw all the accused, but has sated that he saw only 4 or 5 persons coming out of the house. He has also not identified them before the Court. When he came forward to state that he did not know the accused earlier, an identification parade should have been conducted, but not done so. Hence, no evidentiary value could be attached to the evidence of P.W.9.
10.In the instant case, as could be seen, near the shop of P.W.8, the accused were found and they purchased cigarette. P.W.10 is the another shop owner and all the accused went to his shop at 12.00 noon and P.W.11, who is a cooli, witnessed all the accused sharing booty near the bridge. The other witnesses were examined in respect of the receipt of the property from the accused, but all of them have turned hostile. Thus, what was available for the prosecution, in the instant case, was only the recovery of the material objects. The occurrence has taken place on 6.8.2001. According to P.W.1, after the occurrence was over, she along with his husband and daughter, went to the house of her brother, which is situated at Thirumangalam and all were staying over there for a particular period. P.W.1 came back to her house on 26.8.2001 along with his brother. At that time, she found M.O.1, two buttons along with the thread. On production, they were in the custody of the police officer. After the arrest of A-1 and pursuant to his confessional statement in the presence of P.W.18, A-1 produced M.O.2, key and M.O.32, bloodstained shirt and they were recovered from him.
11.At this juncture, it is pertinent to point out that M.O.1, two buttons along with thread and M.O.32, shirt were produced before the court and they were sent to the Forensic Sciences Department for analysis. Ex.P.33 is the Physics Report, wherein it is found that the buttons found in the place of occurrence and produced by P.W.1 before the Investigator and the buttons found in M.O.32, bloodstained shirt, were found actually tallying. Thus, it would be quite clear that the buttons, which were recovered from the place of occurrence and also the buttons found in M.O.32, the bloodstained shirt, were actually belonged to the same shirt. At this stage, the learned counsel for the appellants would submit that M.O.1, buttons, though recovered on 26.8.2001 and produced by P.W.1 on the very day, there was no need for the police to keep them and produce the same before the court along with the bloodstained shirt, after the recovery and that there was delay noticed and thus, M.O.1 was subsequently introduced to suit the prosecution case. This contention has got to be discountenanced for more reasons than one. Firstly, according to P.W.1, immediately after the occurrence, naturally one would have been under a grip of fear and therefore, she accompanied with his husband and daughter, went to Thirumangalam and on 26.08.2001, she came to her house and when she cleaned the house, she found M.O.1, buttons. Immediately, she produced the same before the respondent police and the same was recovered under Form 95. At this juncture, it is to be pointed out that when it was produced before the Investigator, the natural conduct would have been to produce the same before the court. But, in the instant case, it has been sent to the court after the arrest of A-1. The Investigator, only after the arrest of A-1, has recovered M.O.32, the bloodstained shirt, in the presence of P.W.18, the V.A.O. and he found that two buttons were missing and when M.O.1 buttons were compared, the Investigator thought that it should have been with the shirt, M.O.32. Hence, he naturally produced the same before the court for chemical analysis and after analysis, it was found to be tallied with M.O.22, bloodstained shirt. At this juncture, the delay, as pointed out above, cannot be considered to be a delay. Apart from that no explanation was coming from A-1 as to how the buttons, which belonged to the shirt of A-1, happened to be in the place of occurrence.
12.The added circumstance is M.O.2, the key, which was recovered from A-1. M.O.2 key was actually belonged to the house of P.W.1. Similarly, he had no explanation to offer as to how M.O.2, key belonged to the house of P.W.1, happened to be in his custody. Hence, the recovery of M.O.1, buttons and M.O.2, key would indicate that A-1 was the assailant and he has participated in the crime that took place on 6.8.2001. Hence, it is a case of murder for gain. According to the prosecution, it was a case of dacoity. But, how many persons available at the time of occurrence is not made known. There is no direct or circumstantial evidence available, except the circumstance mentioned above, pointing to the presence of A-1. The dead body was found and the properties were actually stolen. The presence of A-1 is also made evident by the circumstance as pointed out above. Thus, without any impediment, A-1 can be made liable for the murder of the said Gopinath that took place between 10.00 a.m. and 4.00 p.m. on 6.8.2001. Apart from that, stolen properties, the jewels, were actually found to be in the custody of A-1 and thus, it was a murder for gain, so far as A-1 was concerned. The lower court has found him guilty along with others under Section 396 r/w 391 r/w 34 IPC. Needless to say, Section 396 IPC is for dacoity with murder and the same is a graver offence. Once evidence is available for finding A-1 guilty under Section 302 IPC, without any difficulty, he can be found guilty under Section 302 IPC and the life imprisonment has got to be awarded.
13.So far as the other accused are concerned, though the lower court found them guilty under Section 396 r/w 391 r/w 34 IPC, no evidence is available that accused Nos.2 to 8 have participated in the crime, which is a murder for gain, as put forth by the prosecution on the date of occurrence. However, they were found to be in possession of the jewels and money belonged to P.W.1, which were identified by her. It is to be pointed out that the evidence of P.W.18, in this regard, despite cross examination, has got to be accepted, since it remains unshaken and his evidence has inspired the confidence of the court. Though he happened to be the single witness, he has narrated the recovery part in entirety. The recovery of jewels from A-2 to A-8 in pursuance to their confessional statements, were actually made in the presence of P.W.18, as stated above. Under these circumstances, in the absence of any evidence as to the participation of A-2 to A-8 in the crime of murder, at best they can be found guilty for the offence of receiving the stolen property. Thus, they can be found guilty under Section 411 IPC, as the receivers of stolen property. In the instant case, how many of the accused have actually participated in the crime, whether they are above 5 or below 5, is not made known. Under these circumstances, the fact that they received the stolen properties having the knowledge that those properties were stolen pursuant to the commission of dacoity, cannot be said to have been proved. Under these circumstances, at best, they can be found guilty under Section 411 IPC.
14.So far as A-1 is concerned, the conviction and sentence imposed by the trial court under Section 396 r/w 391 r/w 34 IPC are modified into one under Section 302 IPC and A-1 is sentenced to undergo life imprisonment. The fine amount imposed by the trial court under Section 396 r/w 391 r/w 34 IPC shall be treated as fine amount imposed under Section 302 IPC. So far as A-2 to A-6 are concerned, the conviction and sentence imposed on them under Section 396 r/w 391 r/w 34 IPC are set aside and instead, they are found guilty under Section 411 IPC and are sentenced to undergo 3 years RI. So far as A-7 and A-8 are concerned, though they have not preferred any appeal, the benefit, which was given to A-2 to A-6, shall be given to them. Accordingly, the judgment of conviction and sentence imposed on A-7 and A-8 under Section 396 r/w 391 r/w 34 IPC is set aside and instead, they are convicted under Section 411 IPC and are sentenced to undergo 3 years RI. The period of sentence already undergone by A-2 to A-8, is ordered to be given set off.
15.It is reported by the learned counsel for the appellants that A-2 to A- 8 are in jail for more than three years. The said statement is recorded. Under these circumstances, the concerned Superintendent of Central Prison is directed to act accordingly.
16.With the above modification in conviction and sentence, these criminal appeals fail and the same are dismissed.
1.The Additional District and
Fast Track Court No.III,
2.The Inspector of Police,
Subramaniapuram Police Station,
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
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