Madras High Court
State Represented By vs Murali on 8 July, 2015
Crl. A. (MD)No.96 of 2018
B E F O R E T H E MADU RAI B E N C H O F MADRA S HIGH C O U RT
Re s er ved on : 1 3. 1 2. 2 0 1 9
D eliv er e d o n : 2 1 . 0 2 . 2 0 2 0
C O R AM:
T H E HO N O U R A B L E MR. J U S T I C E T. RA J A
and
T H E HO N O U R A B L E MR. J U S T I C E B . P U G A L E N DHI
C rl. A . (MD)N o. 9 6 o f 2 0 1 8
State represented by:
The Public Prosecutor,
High Court, Madras – 600 104,
Boiler Plant Police Station,
(Crime No.61/2011) ... Appellant/Complainant
Vs.
1.Murali
2.Karthi ... Respondents/A1 and A2
Prayer: Criminal Appeal filed under Section 378(1)(b) of the Criminal Procedure
Code, praying to set aside the Judgment of acquittal passed in S.C.No.51 of
2012, dated 08.07.2015, by the learned III Additional District and Sessions Judge,
Tiruchirapalli and convict the respondents/accused (A1 and A2) as charged in
accordance with law.
For appellant : Mr.K.K.Ramakrishnan
Additional Public Prosecutor
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For Respondent : Mr.S.Muthumalai Raja
J U DG ME N T
(Judgment of the Court was delivered by T. RA J A , J . )
This Criminal Appeal is directed against the Judgment of acquittal
dated 08.07.2015, made in S.C.No.51 of 2012, on the file of the III Additional
Sessions Judge, Tiruchirappalli.
2. Facts leading to the filing of this Criminal Appeal, relevant for the
purpose of disposal of this case, briefly narrated, are as follows:
2.1. It is the case of the prosecution that A1 and A2 are friends. A1 is
working as a driver in a Travel Agency, which is owned by his sister's husband.
A2 has no permanent job. Both A1 and A2 have decided to earn money by
illegal means and out of that they proposed to purchase a car to A1 and an
auto to A2. One Srinivasan often used to hire the car from the Travel Agency, in
which A1 was working as a driver, to go his mother-in-law Nagalakshmi's house
at BHEL quarters, Tiruchirappalli. Hence, A1 due to frequent visit became well
known to the deceased Nagalakshmi, taking advantage thereof, on 02.07.2011,
A1 and A2 went to BHEL quarters, to watch Nagalakshmi's house with an
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intention to commit robbery. On 07.07.2011, both the accused came to the
house of Nagalakshmi and since A1 was already known to Nagalakshmi, she
invited them and gave them tea. At that time both the accused with an
intention to rob the jewels, came behind her, forcibly laid down her horizontally
by pressing her neck. A1 with his legs compressed on her stomach, and also
strangulated her neck. A2 closed her nose and mouth with his hands and due to
asphyxia, she died. Then the accused robbed the jewels and money from her
house and also robbed the jewels worn by her. Thereafter, both A1 and A2 in
order to destroy the evidence poured Seekaikai Powder on the dead body of
Nagalakshmi and then locked the door and went away.
2.2.The prosecution further states that on 07.07.2011 at about 12.00
p.m., P.W.1 – Nagaraj, son of the deceased, who is employed as a store keeper in
BHEL, came to the house and having found that the door was locked, he went
and brought his wife P.W.2 - Ezhilmathi, who is working as a teacher at BHEL and
with the key available from her, P.W.1, opened the door and found that his
mother was in an unconscious stage and the jewels and cash were missing. He
immediately, took her mother to the hospital at BHEL in an ambulance, where
P.W.6 – Dr.Chitradevi examined his mother Nagalakshmi and reported that she
had died.
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2.3Then P.W.1 went to Boiler Plant Police Station and lodged a
complaint under Ex.P1, based on which, P.W.11 – Ramamoorthy, Sub-Inspector
of Police has registered a case in Crime No.61 of 2011 under Sections 380 and
302 I.P.C. on 07.07.2011 at about 14.00 hours. The printed F.I.R. was marked as
Ex.P2.
2.4.P.W.11 despatched the original F.I.R. and original complaint to the
Court of jurisdictional Magistrate and copy of the same to the higher officials.
One Chellamuthu, Inspector of Police, Boiler Plant Police Station, took up the
case for investigation and went to the occurrence place, prepared Ex.P.2 –
Observation Mahazar and Ex.P.22 – rough sketch and recovered M.O.1 –
Seegaikkai powder scattered in the varandah under a cover of Mahazar Ex.P.3.
He went to the Government Hospital, Trichy and conducted inquest over the
body of the deceased and prepared Ex.P.23 – Inquest report. Thereafter, he sent
the body for conducting postmortem through P.W.12 – Vincent, Head
Constable.
2.5. P.W.10 – Dr.Ravikumar, was a Professor in K.A.P.Viswanathan
Government Medical College Hospital, Trichy, who conducted postmortem on
08.07.2011 at 11.10 a.m. The postmortem report is marked as Ex.P.17. He opined
that the deceased died of compression of neck and head injury. The Final
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Opinion is marked as Ex.P.19. The Viscera Report is marked as Ex.P.18.
2.6. Then Chellamuthu, Inspector of Police examined P.W.1 –
S.Nagarajan, P.W.2 – Ezhilmathi, P.W.3 – Rajeshwari, Ramamurthy, Ramadoss, P.W.
4 – M.Sankar, Rajamanickam, P.W.5 – Chinnadurai, P.W.6 – Dr.M.Chitra Devi,
Saravanakumar and Ganesan and recorded their statements. On 09.07.2011, he
recorded the finger prints of Pandiammal, Sriram, Arthi, Annadurai,
Ramamurthy, Janaki, Rajeswari. On 28.07.2011, he took police custody of A1,
who surrendered before the Court and on enquiry, he voluntarily gave the
confession statement and the same was recorded in the presence of P.W.7 -
Pitchai Pillai, Security Inspector of BHEL and one Immanuvel, Village
Administrative Officer of Thuvakudi. Ex.P.4 is the admissible portion of the
confession statement of A1. Pursuant to the same, he recovered M.O.2 – Lock
and Key under a cover of Mahazar Ex.P.5, M.O.-3 – another Key under a cover of
Mahazar Ex.P.6, M.O.4 – Jewels under a cover of Mahazar Ex.P.7, M.O.5 – Twisted
Chain under a cover of mahazar Ex.P.8, M.O.6 series under a cover of mahazar
Ex.P.9. On the next day, he arrested A2 near sugar mill in the presence of the
same witnesses and recorded the confession statement voluntarily given by him.
The admissible portion of the confession statement of A2 is marked as Ex.P.10,
pursuant to the same he recovered M.O.7 – Zimmikki stead and Fancy stead
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under a cover of Mahazar Ex.P.11 and M.O.8 – Necklace and Gold chain under a
cover of Mahazar Ex.P.12. He recovered the dress worn by the deceased under a
cover of Mahazar Ex.P.24, Seegakkai powder under a cover of mahazar Ex.P.25,
Godrej key under a cover of mahazar Ex.P.26, Godrej lock and key under a cover
of mahazar Ex.P.27. Then, he remanded both the accused to judicial custody and
handed over the Material Objects to the concerned Court under Form 95.
2.7. After Chellamuthu's transfer, P.W.16 – Govindaraj, Inspector of
Police continued the investigation and examined P.W.10 – Dr.A.Ravikumar.
2.8. After P.W.16's transfer, P.W.17 – Selvi, continued the investigation
and she had filed the Charge Sheet on 30.01.2012 on the file of the Court of
Judicial Magistrate No.VI, Tiruchirappalli, charging the appellant/accused for the
aforesaid offences, who took it on file.
2.9. Pursuant thereto, the Committal Court issued summons to the
accused and on their appearance, furnished him copies of documents under
Section 207 CrPC and having found that the case is exclusively triable by the
Sessions Court, had committed the same to the Principal District Court.
Tiruchirappalli, which in turn made over the same to the III Additional District
and Sessions Court, Tiruchirappalli, which took it on file in S.C.No.51 of 2015.
Thereupon, the respondents/accused were issued with summons and on their
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appearance, charges under Sections 302, 404, 380 and 201 IPC have been
framed.
2.10.The prosecution, in order to sustain its case, examined PWs.1 to
17, marked Exs.P1 to P32 and also marked M.Os.1 to 8. The respondents/
accused were questioned under Section 313(1)(b) Cr.P.C. with regard to the
incriminating circumstances made out against them and they denied it as false.
The respondent/accused did not examine any witness or marked any document.
2.11.The learned Trial Court, on a consideration of oral and
documentary evidence and other materials, acquitted the accused on the
ground that the charges framed against them are not proved beyond
reasonable doubt, vide impugned judgment dated 08.07.2015 and challenging
the same, the present Criminal Appeal is filed by the State.
3. Mr.K.K.Ramakrishnan, learned Additional Public Prosecutor
appearing for the appellant/complainant would emphatically contended that
the learned III Additional District and Sessions Judge, Tiruchirappalli has
committed a serious mistake in acquitting the accused/respondents on two
flimsy grounds that (i) no independent witness was examined from Ranipet for
recovery of Material Objects and (ii) no procedure has been followed for
recording the finger prints of the first accused.
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4.Explaining further, the learned Additional Public Prosecutor argued
that P.W.1 is the son of the deceased, who was working as a Store Keepers in
Trichy BHEL, whereas P.W.2 is the daughter-in-law of the deceased and also wife
of P.W.1, who is the son of the deceased. A1 is a driver, working in a Travel
Agency and A2 is a friend of A1. While so, on 07.07.2011, when the deceased
was alone in her house and the family members went out for their works, taking
advantage of the frequent visit to the deceased house to drop one Srinivasan,
who often used to hire the car from the Travel Agency, in which A1 was
working, A1 and A2 came to the house of Nagalakshmi (deceased) and they
enquired about her health. The poor deceased lady unaware of the conspiracy
of A1 and A2 invited them into the house and gave them tea. At that time, both
the accused came behind her, forcibly laid down her horizontally by pressing
her neck, A1 with his legs compressed on her stomach and also strangulated her
neck. A2 closed her nose and mouth with his hands and due to asphyxia, she
died. Thereafter, both the accused robbed the jewels and left from the house
and thereafter, both A1 and A2 in order to destroy the evidence poured
Seekaikai Powder on the face of dead body of Nagalakshmi and then locked the
door and went away. When the family members of the deceased came home
and found that Nagalakshmi was murdered and the jewels were missing, P.W.1
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lodged a complaint under Ex.P.1 and based on his complaint a case was
registered by P.W.11, Sub-Inspector of Police, Boiler Plant Police Station in Crime
No.61 of 2011 for the commission of offences under Sections 302, 404, 380 and
201 I.P.C. Chellamuthu, the Inspector of Police, took up the case for
investigation. In the meantime on 22.07.2011, A1 surrendered before the
learned Judicial Magistrate, Ranipettai and he was taken to Police Custody and
his confession statement was recorded on 28.07.2011 at 6.45 p.m. Pursuant to
the confession of A1, A2 was arrested. Based on the confession of A1 and A2,
the jewels were recovered from the pawn brokers P.Ws.8 and 9 and also from
their house and the lock and key from the thorny bushes. P.W.7, the athatchi
witness supported the prosecution case for the recovery of the jewels from the
house of P.W.1 and moreover P.W.8 and 9 pawn brokers also supported the
prosecution case. The learned trial Court ought to have seen that only as per
the confessions made by A1, A2 was impleaded and as per the confession of
both A1 and A2 the pledged jewels have been recovered from the pawn broker
shops and from their houses. The jewels were also identified by P.W.1 – son of
the deceased and P.W.2 – daughter-in-law of the deceased. P.Ws.8 and 9 pawn
brokers also corroborated the evidence of P.Ws.1 and 2. Their evidence cannot
be easily brushed aside. P.Ws.8 and 9 pawn brokers have admitted that they
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received the gold jewels without I.D. Proof, but obtained the signatures of the
accused. The finding given by the learned trial Court that there was no
independent witness from Ranipet examined for recovery is wholly unjustified
and unacceptable.
5.Explaining further, the learned Additional Public Prosecutor giving
his reasons would submit that the trial Court ought not to have overlooked the
evidence of pawn brokers, who deposed that the jewels pledged with them
were recovered from the respective pawn shops. He has demonstrated that
when the pawn brokers have admitted that they have received the gold jewels
without I.D. Proof, but obtained the signatures of the accused Nos.1 and 2, the
receipts for the same have been recovered from the shops and that were
marked, which are carrying the signatures of A1 and A2. Such a speaking
evidence produced by the prosecution, which is an unimpeachable independent
evidence, ought not to have been overlooked.
6.Coming to the finger prints, showing the finger prints of A1, learned
Additional Public Prosecutor submitted that the finger prints of A1 have been
found from the scene of crime and the finger print report has also been marked
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as Ex.P.21. The report clearly shows that the chance prints taken from the place
of occurrence have tallied with the finger prints of A1. When the case of the
prosecution has been presented without giving rise to any doubt, the learned
trial Court wrongly acquitted A1 and A2 by giving much importance to the
procedural lapses of lifting finger prints by erroneously quoting order 836(4)(k)
of the Tamil Nadu Police Standing Orders, which states that finger prints shall
be taken only by the officers declared by the Superintendent of Police in the
mofussil or Commissioner of Police, in the city of Madras, to be qualified to take
clear and well-rolled impressions. The way in which the trial Court has found
fault with P.W.13 holding that P.W.13 has not properly taken the finger prints as
per the procedure laid down by law is clearly erroneous.
7.Again assailing the said conclusion arrived by the trial Court
disbelieving the evidence of P.W.13, especially for the reason that she has not
properly taken the finger prints as per the procedure, the learned Additional
Public Prosecutor has stated that the occurrence took place on 07.07.2011 at
about 10.00 a.m. and the Government has issued G.O.Ms.No.1668 Home (Prison
– I) Department dated 13.11.2007, revising the rules under Section 8 of the
Identification of Prisoners Act, 1920, which is based on the decision of this
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Court in Criminal Appeal No.810 of 1998 dated 16.12.2002, which had
emphasized the necessity for framing of appropriate rules under Section 8 of
Identification of Prisoners Act, 1920. Based on the directions issued by this
Court, the Director General of Police has placed the proposal before the Tamil
Nadu Committee for Revision of Police and Prison Laws and Rules for their
views. In turn the Committee has framed revised draft Tamil Nadu Identification
of Prisoners Rules and forwarded the same to the Government. The Committee
has also recommended that while notifying the new Rules, the Government may
delete Police Standing Order 801(4)(k), which also speaks the same to avoid
confusion. The revised Rules were notified under Section 8 of the said Act and
finally deletion of the provision in Police Standing Order 801(4)(K) has been
recommended separately. Rule 4(m) of the Tamil Nadu Identification of
Prisoners Rules, 2007 clearly says that Finger impression shall be taken by a
Finger Print Expert or a police officer of the rank of police constable or above.
Again while dealing with foot print impressions, Rule 5(b) says that foot print
impressions shall be taken by Foot Print Experts or a Police Officer of the rank
of a Sub-Inspector of Police or above. Since, in the present case, the Rules
which are in force have been followed, the learned trial Court was wrong in
holding that finger prints of suspects must be taken by the person, who is
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declared by a Superintendent of Police in the mofussil or Commissioner of
Police, in the city of Madras, to be qualified to take clear and well-rolled
impressions. As a result, the finger prints of A1, as per the finger prints report,
having tallied with the chance finger prints has been unjustifiably overlooked.
Thus, although the prosecution has proved its case by chain of events by
producing documentary or oral evidence, the trial Court wrongly acquitted the
accused.
8.Again continuing his arguments, the learned Additional Public
Prosecutor has submitted that the prosecution has proved the last seen theory.
through P.W.14 – M.Saravanakumar, who is a security guard working in BHEL.
The trial Court acquitted the accused giving undue weightage to defective
investigation, however, there is no defective investigation. The prosecution has
proved that A1, driver, who attended P.W.1's father's funeral on 25.06.2011
came along with his friend to the deceased on 29.06.2011 and they told P.W.1
that they came to get blessings from the deceased. The prosecution has
established the case that the accused came to the place of occurrence and that
has been supported by the presence of finger prints of A1 in the house of the
deceased as per Ex.P.21 finger prints report and it has been further supported
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by P.W.8 – Sureshkumar and P.W.9 – B.Bagendaran, pawn brokers, who deposed
that on 09.07.2011 A1 pledged the jewels and P.W.9 also corroborated the
evidence that on 08.07.2011 A2 pledged the jewels and subsequently on the
basis of the confession statements, the same were also recovered in the
presence of P.W.7, therefore, there is no justification at all for the Trial Court to
disbelieve the signatures of A1 and A2 found in the receipts maintained by the
Pawn brokers. For all these, he pleaded for reversing the order of acquittal.
9.Further, the learned Additional Public Prosecutor relied on the
judgment of the Hon'ble Apex Court in G a n e s h L a l v. S t at e o f
R a j a s t h a n [( 2 0 0 2 ) 1 S C C 7 3 1 ] for a proposition that murder and
robbery being an integral part of same transaction, presumption under
Limitation Act 114 of the Evidence Act can be applied for holding that the
accused is guilt of not only having committed robbery but also murder of the
deceased. In the case on hand, since the recovery of stolen articles is proved, it
goes without saying that both the robbery and murder are closely interlinked,
the same are clearly established.
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10.On the other hand, the learned counsel appearing for the accused/
respondents submitted that it is a case of circumstantial evidence. No
independent witness has been examined for showing the recovery said to have
been made in Ranipet. Secondly, the prosecution has heavily relied on the
finger prints of A1 that is said to have been found in the place of occurrence.
Therefore, the trial Court has rightly following the judgment of the Division
Bench of this Court in B a l u v . I n s p e c t o r o f P o l i c e , J a m n a m a r a t h u r
P o l i c e S t a t i o n [ 2 0 1 4 ( 1 ) M W N C r l . 6 0 7 ( D B )] held that finger prints
of suspects must be taken by the person, who is declared by a Superintendent
of Police in the mofussil or Commissioner of Police, in the city of Madras, to be
qualified to take clear and well-rolled impressions, whereas in the present case
P.W.13, Sub-Inspector of Police, (Finger Print), Thali, Thanjavur District has not
been declared by the competent authority as qualified person, therefore, the
conclusion reached by P.W.13, which is not as per the procedure laid down by
the law, being a crucial in connecting the prosecution case cannot be taken into
account. Moreover, when the evidence of P.W.13 has been held unbelievable
and untrustworthy and besides the evidence of P.W.14, staff working in BHEL,
Trichy also has not been found as trustworthy because there was no
identification parade conducted by the prosecution, the trial Court came to the
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right conclusion that on the unsafe evidence claimed by the prosecution, which
has not proved the prosecution case beyond reasonable doubt, it is not safe to
convict the innocent persons and hence, the appeal is liable to fall.
11.This Court paid its anxious consideration to the rival submissions
made and also perused the oral and documentary evidences and other materials
placed on record including the impugned Judgment as well as the original
records.
12.The following questions arise for consideration:-
[i] Whether the impugned judgment passed by the trial Court holding
that the respondents/accused are not guilty of the charges is sustainable? and
[ii] Whether the impugned judgment of acquittal is liable to be
reversed?
Question No. [i] :
13.The prosecution in order to substantiate that Nagalakshmi, mother
of P.W.1 – S.Nagarajan, was done to death in an incident that took place at
10.00 a.m. on 07.07.2011, has relied on the evidence of postmortem doctor
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Dr.A.Ravikumar examined as P.W.10 and also the contents of the postmortem
certificate marked as Ex.P17 issued by P.W.10. Following the inquest made by
Chellamuthu, the investigating officer, the dead body was subjected to
postmortem by P.W.10, who has deposed before the Court and the contents of
the postmortem certificate issued by him were also proved. It is also not the
case of the defence that the deceased not died due to homicidal violence.
Hence the trial Court was right in recording the finding that the deceased died
out of homicidal violence.
14.The prosecution based its case on circumstantial evidence as there
is no direct eye-witness. When A1 surrendered before the District Munsif cum
Judicial Magistrate, Ranipet on 22.07.2011, he was taken into police custody for
three days. During enquiry, he voluntarily gave the confession statement and
the same was recorded in the presence of P.W.7 - Pitchai Pillai, Security
Inspector of BHEL and one Immanuvel, Village Administrative Officer of
Thuvakudi. Ex.P.4 is the admissible portion of the confession statement of A1.
Pursuant to the same, the investigation officer recovered M.O.2 – Lock and Key
under a cover of Mahazar Ex.P.5, M.O.-3 – another Key under a cover of
Mahazar Ex.P.6, M.O.4 – Jewels under a cover of Mahazar Ex.P.7, M.O.5 – Twisted
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Chain under a cover of mahazar Ex.P.8, M.O.6 series under a cover of mahazar
Ex.P.9. On 30.07.2011, he arrested A2 near sugar mill in the presence of same
witnesses and recorded the confession statement voluntarily given by him. The
admissible portion of the confession statement of A2 is marked as P.W.10,
pursuant to the same he recovered M.O.7 – Zimmikki stead and Fancy stead
under a cover of Mahazar Ex.P.11 and M.O.8 – Necklace and Gold chain under a
cover of Mahazar Ex.P.12.
15.It is the case of the prosecution that recoveries of M.Os.2 to 8 were
made on the basis of the confession statements given by A1 and A2 in the
presence of P.W.7 and another. The pawn brokers P.Ws.8 and 9 have also
supported the prosecution case that A1 and A2 have mortgaged the gold jewels
without I.D. but they have obtained their signatures, which also tallied with the
signatures of A1 and A2. Such recoveries purely made on the basis of the
confession statements of the accused, which were established through
independent witnesses P.W.8 and 9 cannot be disbelieved.
16.Now before going into the veracity of the recovery leading to the
participation of A1 and A2, we have to see whether any recovery has been
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made relating to the proof of the commission of offences on A1 and A2. P.W.8,
Sureshkumar is the owner of N.Madanlal Sowcar Pawn broker at Katpadi. P.W.8
has witnessed that on 09.07.2011, A1 has pledged paired gold black bead chain
and crystal chain weighing 23 ½ grams and got Rs.26,000/-, for which he has
issued receipt Ex.P.13, in which A1 has affixed his signature. P.W.9, B.Bagendran,
is owner of Lakshmi Pawn Shop at Katpadi. P.W.9 has witnessed that on
09.07.2011, A1 has pledged Twisted chain weighing 3 sovereigns and got Rs.
34,000/-, for which he issued receipt Ex.P.15, in which A1 has affixed his
signature. The signature of the first accused found in the confession statement
tallied with the signature found in Exs.P.13 and P.15 receipts issued by P.Ws.8
and 9 and the paired gold black bead chain and crystal chain weighing about 23
½ grams and the twisted chain weighing about 3 sovereigns were clearly
identified by P.Ws.1 and 2, son and daughter-in-law of the deceased.
Regrettably, the trial Court has not dealt with this vital aspect in the impugned
finding arrived and resultantly, reached an unacceptable conclusion. Therefore,
we have no hesitation to hold that the finding of the trial Court on this crucial
evidence spoken by P.Ws.1 and 2 supported by P.Ws.7 to 9 showing the recovery
reveals failure on the part of the trial Court to appreciate the prosecution
evidence.
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17.When the trial Court has framed the point for consideration,
“whether the charges against the accused are proved beyond all reasonable
doubts”, it is quite surprising to us as to how the evidence of P.Ws.8 and 9
identifying the recoveries that have been corroborated by P.Ws.1 and 2 could be
overlooked. These evidences have been completely not considered. It is well
settled law that any conclusion reached ignoring the vital aspect is perverse.
Therefore, the findings given by the trial Court in not looking upon the
evidences of P.Ws.1, 2, 7, 8 and 9 is wholly erroneous.
18.The judgment impugned suffered yet another infirmity in rejecting
the finger prints of the accused taken by the Inspector of Police P.W.13 from the
place of occurrence stating that the chance prints marked as R1 and R2
developed on the Steel Bureau tallied with the right thumb finger and right
middle finger prints of A1 is without any basis. It is unnecessary for the trial
Court to extract Standing Order 836(4)(k) of the Tamil Nadu Police to hold that
finger prints of suspects must be taken by the person, who is declared by a
Superintendent of Police in the Mofussil or Commissioner of Police, in the city
of Madras, to be qualified to take clear and well-rolled impressions, for, in the
present case, the conclusion that P.W.13 has not properly taken the finger prints
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as per the procedure laid down by law is also fallacious inasmuch as the Rules
framed under Section 8 of Identification of Prisoners Act, 1920 vide G.O.Ms.No.
1668 Home (Prison – I) Department dated 13.11.2007 has not been followed.
Further, this Court in Criminal Appeal No.810 of 1998 dated 16.12.2002 has
emphasized the necessity for framing of appropriate rules under Section 8 of
the Identification of Prisoners Act, 1920. Pursuant to the same, the Director
General of Police has placed the proposal before the Tamil Nadu Committee for
Revision of Police and Prison Laws and Rules for their views. Thereafter, the
Committee observed that the State Government had already framed Rules
under the said Act, 1920 itself. However, the above Rules are out of date since
major developments have taken place in scientific knowledge in identification of
criminals. More over, in these Rules even Finger Print Experts are not included in
the list of Officers authorised to take finger impressions. The Committee
therefore has suggested that the Rules under Section 8 of the said Identification
of Prisoners Act, 1920, actually require only revision and not framing of Rules.
Accordingly, the said Committee has framed revised draft Tamil Nadu
Identification of Prisoners Rules and forwarded the same to the Government.
The Committee has also recommended that while notifying the new Rules, the
Government may delete Police Standing Order 801(4)(k) which also speaks the
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same to avoid confusion. The Government after careful examination of the
revised draft rules under the Identification of Prisoners Act, 1920 accepted the
same and there upon G.O.Ms.No.1668 Home (Prison – I) Department dated
13.11.2007 has been issued, but this has been ignored by the learned trial Court.
19.It is relevant to extract Rule 3 and relevant portion of Rule 4 of the
Tamil Nadu Identification of Prisoners Rules, 2007:
“3.Places for taking measurements and photographs: - The
finger impressions, foot print impressions and photographs of any
person for the purpose of the Act, shall be taken only at the following
places:-
(i) Magistrates' Courts;
(ii) Police Stations and Outposts, including police lock-ups;
(iii) Prisons.
4.Method of taking measurements of finger impressions:
...
(m) Finger impressions shall be taken by a Finger Print
Expert or a police officer of the rank of police constable or above.”
20.In the present case, the finger prints of A1 has been rightly taken
by the Police Officer. P.W.13 – M.Kalaikkannaki, Sub-Inspector of Police (Finger
Prints), Thali has taken the finger prints of A1 as per Rule 4 and after examining
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the finger prints she found that the right thumb finger print and right middle
finger print of A1 are identical to chance finger prints R1 and R2 and her report
is marked as Ex.P.21. Rejection of such acceptable scientific evidence showing
the finger prints of A1 found in the place of occurrence, which establishes his
presence at the place of commission of offence is wholly unwarranted.
Therefore, the reasoning given by the trial Court is wholly un-sustainable and
unjustified. When the trial Court has misconstrued as to how to appreciate the
evidence, we have no hesitation to set aside the same. The evidence of P.Ws.1, 2,
7, 8 and 9 has been completely overlooked and therefore, the acquittal of A1
and A2 on mere surmises and conjunctures cannot stand before this Court for a
legal scrutiny. Hence, they are liable to be set aside.
21.Section 114 of the Evidence Act also provides that the Court can
presume the existence of any fact which it thinks likely to have happened. As
per illustration (a) to Section 114 of the Evidence Act, a man who is in
possession of stolen goods soon after the theft may be presumed by the Court
to be either the thief or one who has received the goods knowing them to be
stolen, unless he can account for his possession. The presumption being raised
is one of fact than of law. In the facts and circumstances of a given case relying
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on the strength of the presumption the Court may dispense with the direct
proof of certain facts.
22.The law laid down by the Hon'ble Apex Court in G a n e s h l a l case
(supra) is extracted as under:
“13. In B a i j u v . S t a t e o f M . P. [( 1 9 7 8 ) 1 S C C 5 8 8 ] ,
E a r a b h a d r a p p a v . S t a t e o f K a r n a t a k a [( 1 9 8 3 ) 2 S C C
3 3 0 ] , G u l a b C h a n d v . S t a t e o f M . P. [( 1 9 9 5 ) 3 S C C 5 7 4 ] ,
M u k u n d v . S t a t e o f M . P. [( 1 9 9 7 ) 1 0 S C C 1 3 0 ] and
A . D e v e n d r a n v . S t a t e o f T. N . [( 1 9 9 7 ) 1 1 S C C 7 2 0 ] , para
20, murder and robbery were proved to have been integral parts of
one and the same transaction and the presumption arising under
illustration (a) to Section 114 of the Evidence Act was applied for
holding the accused guilty of not only having committed robbery but
also murder of the deceased. The presumption was founded on
recovery of stolen property belonging to the deceased.
14. While raising such presumption the time factor between
the date of the offence and recovery of stolen property from the
possession of the accused would play a significant role. Precaution has
to be taken that the presumption may not be so stretched as to
permit suspicion taking the place of proof. No hard-and-fast rule can
be laid down.
15. A review of several decisions of this Court, some of
which we have cited hereinabove, leads to the following statements
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Crl. A. (MD)No.96 of 2018
of law. Recovery of stolen property from the possession of the
accused enables a presumption as to commission of offence other
than theft or dacoity being drawn against the accused so as to hold
him a perpetrator of such other offences on the following tests being
satisfied: (i) the offence of criminal misappropriation, theft or dacoity
relating to the articles recovered from the possession of the accused
and such other offences can reasonably be held to have been
committed as an integral part of the same transaction; (ii) the time-
lag between the date of commission of the offence and the date of
recovery of articles from the accused is not so wide as to snap the
link between recovery and commission of the offence; (iii) availability
of some piece of incriminating evidence or circumstance, other than
mere recovery of the articles, connecting the accused with such other
offence; (iv) caution on the part of the court to see that suspicion,
howsoever strong, does not take the place of proof. In such cases the
explanation offered by the accused for his possession of the stolen
property assumes significance.”
23.A close perusal of the above observation would clearly show that if
murder and robbery take place and the prosecution is able to prove one
integral part viz., recovery of the jewels belonging to the deceased, it can be
presumed that murder and robbery are proved as they are integral part of the
one and same transaction. Therefore, if the presumption under illustration (a) of
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Section 114 of the Evidence Act is to be applied in this case, the guilt is not only
robbery but also murder of the deceased. As we mentioned above, the present
case has a clear chain of events from the date of arrest of A1 leading to the
confession recorded in the presence of P.W.7 and V.A.O., which ultimately lead
to the recovery of M.Os.2 to 6. This has been again identified by P.Ws.1 and 2,
who are son and daughter-in-law of the deceased, which has been further
supported by P.Ws.7 to 9. From these facts and circumstances, the prosecution
has established the commission of robbery. Since murder and robbery are
proved to be an integral part of one and the same transaction and the presence
of A1 in the place of occurrence has been proved through the report of finger
print expert, it goes without saying that presumption under Limitation Act 114
of the Evidence Act can be applied for holding that the first accused is guilt of
not only having committed robbery but also murder of the deceased. Therefore,
we have no hesitation to hold that A1 has committed offence under Sections
302, 404, 380 and 201 IPC.
24.So far as A2 is concerned, he was implicated pursuant to the
confession of A1 and he was arrested on 30.07.2011 at 13.00 hours and
pursuant to his confession M.O.7 – Zimmikki stead and Fancy stead was
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Crl. A. (MD)No.96 of 2018
recovered under a cover of Mahazar Ex.P.11 and M.O.8 – Necklace and Gold
chain was recovered under a cover of Mahazar Ex.P.12. P.W.9, B.Bagendran, who
is the owner of Lakshmi Pawn Shop at Katpadi has witnessed that on 08.07.2011,
A2 has pledged Zimmikki stead and Fancy stead weighing 1 sovereign and got
Rs.11,500/-, for which he issued receipt Ex.P.14, in which A2 has affixed his
signature. The signature of the second accused found in the confession
statement has tallied with the signature found in Ex.P.14 receipt issued by P.W.9
and the Zimmikki stead and Fancy stead weighing about 1 sovereign that was
clearly identified by P.Ws.1 and 2, son and daughter-in-law of the deceased. This
aspect has also been completely overlooked without any judicious
consideration. Therefore, the charge against A2 for the commission of offence
under Section 404 stands proved. Whereas, as there is no finger prints of A2
found in the place of death of deceased, the prosecution has failed to prove the
commission of offences under Sections 302, 380 and 201 I.P.C.
Question No. [ii] :
25. In view of reasons assigned above, while reviewing the evidence
placed before the trial Court under Sections 378(1)(b) and 386 Cr.P.C., this Court
of the view that the acquittal of A1 for the commission of offences under
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Sections 302, 404, 380 and 201 I.P.C. and the acquittal of A2 for the commission
of offence under Section 404 I.P.C. warrant interference.
26.In the result, this Criminal Appeal is allowed by setting aside the
judgment of acquittal dated 08.07.2011, made in S.C.No.51 of 2012 by the
learned III Additional District and Sessions Judge, Tiruchirappalli and convicting
the first accused for the commission of offences under Sections 302, 404, 380
and 201 of I.P.C. and the second accused for the commission of offence under
Section 404 of I.P.C.
27.The respondents are directed to appear before this Court for
questioning them regarding the sentence to be imposed. Call the matter on
27.02.2020 (Thursday).
[T.R. , J . ] [B. P. , J . ]
2 1.0 2.2 0 2 0
Index : Yes / No
Internet : Yes / No
sj
To
1.The III Additional District and Sessions Judge,
Tiruchirappalli.
2.The Judicial Magistrate No.VI,
Tiruchirappalli.
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Crl. A. (MD)No.96 of 2018
3.The Inspector of Police,
Boiler Plant Police Station,
Trichy District, Trichy.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Copy to
The Section Officer,
VR Records,
Madurai Bench of Madras High Court,
Madurai.
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Crl. A. (MD)No.96 of 2018
T.R A J A , J .
and B . P U G A L E N DHI , J .
sj PRE-DELIVERY JUDGMENT IN C rl. A . (MD)N o. 9 6 o f 2 0 1 8 Delivered on 2 1.0 2.2 0 2 0 30/34 http://www.judis.nic.in Crl. A. (MD)No.96 of 2018 C rl. A . (MD)N o. 9 6 o f 2 0 1 8 T.R A J A , J .
and B . P U G A L E N DHI , J .
O R DE R (Order of the Court was made by T.RAJA, J.) Though the matter was originally posted on 27.02.2020 for questioning the accused with regard to the sentence, the learned Additional Public Prosecutor has made 'a mention' today that the accused have been secured and therefore, the matter is taken up at 02.15 pm.
2.The respondents 1& 2 / accused 1 & 2 are produced before this Court and when they were questioned with regard to sentence, they pleaded innocence and prayed for leniency.
3.Considering the nature of the offences and the request made by the respondents 1 & 2 / accused 1 & 2, this Court imposes the following sentences:
(i) The first respondent / first accused is sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/-(Rupees five thousand only) and in 31/34 http://www.judis.nic.in Crl. A. (MD)No.96 of 2018 default of payment of fine amount, to undergo rigorous imprisonment for a period of six months for the offence under Section 302 I.P.C.; sentenced to undergo three years rigorous imprisonment and to pay a fine of Rs.1,000/-
(Rupees one thousand only) and in default of payment of fine amount, to undergo rigorous imprisonment for a period of three months for the offence under Section 404 I.P.C.; sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs.1,000/-(Rupees one thousand only) and in default of payment of fine amount, to undergo rigorous imprisonment for a period of three months for the offence under Section 380 I.P.C.; sentenced to undergo three years rigorous imprisonment and to pay a fine of Rs.1,000/- (Rupees one thousand only) and in default of payment of fine amount, to undergo rigorous imprisonment for a period of three months for the offence under Section 201 I.P.C.;
(ii) The second respondent/second accused is sentenced to undergo three years rigorous imprisonment and to pay a fine of Rs.1,000/-(Rupees one thousand only) and in default of payment of fine amount, to undergo rigorous imprisonment for a period of three months for the offence under Section 404 I.P.C.;
32/34 http://www.judis.nic.in Crl. A. (MD)No.96 of 2018 The sentences are ordered to run concurrently and the period of imprisonment already undergone shall be given set off under Section 428 Cr.P.C.
4.Registry is directed to commit them to prison to undergo the sentence imposed on the respondents 1 & 2/accused 1 & 2.
[T.R. , J . ] [B. P. , J . ]
2 4. 0 2. 2 0 2 0
gk
Copy to
The Superintendent of Prison,
Central Prison,
Tiruchirappallli.
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Crl. A. (MD)No.96 of 2018
T.R A J A , J .
and
B . P U G A L E N DHI , J .
sj
C rl. A . (MD)N o. 9 6 o f 2 0 1 8
2 4.0 2.2 0 2 0
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