Madras High Court
Biju vs The State on 3 March, 2010
Author: R.Mala
Bench: R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.03.2010
CORAM:
THE HONOURABLE MS.JUSTICE R.MALA
Crl.A.Nos.1478, 1446, 1490 and 1580 of 2002
Biju .. Appellant in Crl.A.No.1478 of 2002
Santhosh @ Babu .. Appellant in Crl.A.NO.1446 of 2002
Srinivasan .. Appellant in Crl.A.No.1490 of 2002
Benny P.Kuriakose .. Appellant in Crl.A.No.1580 of 2002
Vs.
The State, rep. by Inspector of Police,
B.1 Bazaar Police Station, Coimbatore.
(Crime No.1170 of 1996)
.. Respondent in all the Criminal Appeals
Criminal Appeals against the judgment dated 7.10.2002 in S.C.Nos.28 of 2000 and 253 of 2001 on the file of the Additional District and Sessions Court (Fast Track Court No.2), Coimbatore.
For appellant in Crl.A.No.1478 of 2002 :
Mr.S.Xavier Felix
For appellant in Crl.A.No.1446 of 2002 :
Mr.K.Kalyanasundaram
For appellant in Crl.A.No.1490 of 2002 :
Ms.Vanathi Srinivasan
For appellant in Crl.A.No.1580 of 2002 : Mr.J.Pothiraj
For respondent in all the Crl.As. :
Mr.I.Paul Noble Devakumar,
Govt. Advocate (Crl. Side).
JUDGMENT
The Criminal Appeals arise out of the judgment of conviction and sentence, dated 7.10.2002 in S.C.Nos.28 of 2000 and 253 of 2001 on the file of the Additional District and Sessions Court (Fast Track Court No.2), Coimbatore, whereby, the appellant (A.1) in Crl.A.No.1478 of 2002 and the appellant (A.4) in Crl.A.No.1580 of 2002 were convicted for the offence under Section 457 IPC and each sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1,000/- each, in default, each to undergo simple imprisonment for six months and A.1 and A.4 were also convicted for the offence under Section 392 read with 397 IPC and each sentenced to undergo rigorous imprisonment for ten years. The sentences imposed on A.1 and A.4 were directed to run concurrently. The appellant (A.2) in Crl.A.No.1446 of 2002 and the appellant (A.3) in Crl.A.No.1490 of 2002 were convicted for the offence under Section 414 IPC and each sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/- each, in default, to undergo simple imprisonment for six months.
2. The case of the prosecution is as follows:
On the fateful day, on 3.6.1996 at about 8.30 p.m., when P.W.1 Ambi, his wife P.W.3 Omana, his daughter P.W.4 Usha @ Nisha and other two daughters Rajeswari and Vishnupriya, were inside the house/workshop, owned by the parents of P.W.9 Thilaka and when P.W.5 Raja, P.W.6 Rajesh, P.W.7 Sathish and one goldsmith Gopal, were doing their gold ornamental work/manufacturing work of the gold jewellery, A.1, A.4 and one Sibu (absconding accused) entered into P.W.1's house/workshop. As soon as they entered the house/workshop, they bolted the door. At that time, P.W.1, his wife and children were watching television.
Sibu (absconding accused) was armed with revolver. A.4 Benny Kuriakose was armed with knife. A.1 Biju possessed cycle chain and chilli powder. When Sibu, the accused who possessed revolver directed the workers to handover the jewelleries, P.W.1 who was watching television, questioned as to what was the problem. Immediately, A.1 sprinkled the chilli powder on the eyes of P.W.1 and he immediately rushed to the kitchen to wash his eyes.
A.4 entered the kitchen and removed the chain worn by P.W.3 Omana. The third daughter of P.Ws.1 and 3, namely Vishnupriya started crying. A.4 used knife and threatened Vishnupriya not to cry. At that time, they heard the knocking sound of the door in the workshop. Immediately, A.4 went and opened the door and P.W.1's brother's son, Sivan returned to the house/workshop after handing over the jewelleries to Ashok Jewellers. Then, A.4 bolted the door from inside.
A.4 took P.Ws.1 and 3 and their daughters and also took Sivan into the place where P.W.1 and his family were lodged. Within 15 minutes, P.W.8 Santhosh knocked the door and once again, A.4 went and opened the door and pushed P.W.8 inside the house and bolted the door.
After 15 minutes, one Arumugham, the grinder mechanic knocked the door. Again, immediately, A.4 took him inside the house and bolted the door.
Sibu (absconding accused) took all the jewelleries in the workshop in one yellow bag and directed all the persons to enter into the kitchen and then the accused locked the door and threatened the witnesses not to shout and if they shout, they will kill them. Then, the accused left the place.
P.W.1 took 'aruval' and tried to open the kitchen door and they came to the workshop, but the workshop door was locked from outside. Then, they opened the windows and made an alarm and then only, P.W.9 Thilaka, the house owner's daughter came to the first floor and opened the workshop.
P.W.9 came to know about the robbery and she intimated the same to her mother. P.W.1 intimated the robbery to his brother Chellappan and immediately Chellappan rushed to the place of occurrence.
Then, P.W.1 gave a complaint Ex.P-1, to the Police Station at 9 p.m. Since P.W.1 was not well-versed in Tamil, he narrated the incident to Chellappan, who wrote the complaint, which was handed over to P.W.14 Marthandan, Inspector of Police and he received the complaint and registered a case in Crime No.1170 of 1996 for the offence under Section 392 IPC and prepared the printed FIR Ex.P-13.
P.W.14 Marthandan, Inspector of Police went to the place of occurrence and prepared observation mahazar Ex.P-14 and drew the rough sketch Ex.P-15. He examined P.Ws.1, 3 to 7 and 9 and others recorded their statements.
P.W.15 Kannan Kanagaraj, Inspector of Police arrested A.4 on 26.1.1997 and A.1 on 28.1.1997, in connection with R.S.Puram Crime No.47 of 1997 for the offence under Section 397 IPC and only on the basis of the confession given by A.1 and A.4 in that case, the Police came to know that the accused and their gang were involved in the present Crime No.1170 of 1996.
P.W.15 Inspector of Police sent the copy of the confession to P.W.14 Inspector of Police. Then, P.W.14 Inspector of Police, on the basis of the confession of A.1 and A.4, seized the material objects and he took steps for identification of the material objects by P.W.1. Accordingly, P.W.1 identified the weapons used by the accused.
Then, P.W.14 Inspector of Police also took steps for conducting test identification parade and gave Ex.P-4 requisition for the same. Ex.P-3 is the order of the Chief Judicial Magistrate for taking necessary action. In pursuance of the same, P.W.2 Judicial Magistrate conducted the test identification parade, after following the formalities and issued Ex.P-5 is the proceedings of the test identification parade.
On 28.1.1997, P.W.14 Inspector of Police arrested A.2 and A.3 at about 8 a.m., near the Corporation School at Maa.Naa.Kaa. Street, when A.2 and A.3 were proceeding in Kinetic Honda two-wheeler (M.O.13) bearing Registration No.TN-37-K-2793,, which was seized in the presence of P.W.10 Thangappan and one Kunjuraman.
Then, the Police recorded the confession of A.2 in the presence of the same witnesses. The admitted portion of the same is Ex.P-6. In pursuance of the same, A.2 Santhosh identified P.W.13 Sivakumar, from whose shop, M.Os.6 to 9 gold ingot and M.O.10 gold bracelet, were recovered in the presence of the same witnesses under Ex.P-9 mahazar.
A.3 Srinivasan also gave a confession and the admitted portion of the same is marked as Ex.P-7. In pursuance of the same, A.3 identified P.W.12 Vellingiri, who was residing in Maa.Naa.Kaa. Street and he handed over M.O.1 gold chain and M.Os.2 to 5 gold ingot, which were seized in the presence of the same witnesses, under Ex.P-8 mahazar. P.W.14 Inspector of Police examined P.W.12 Vellingiri and P.W.13 Sivakumar and recorded their statements.
On the basis of the confession given by A.2, P.W.14 Inspector of Police also seized TN-37-T-4532 Hero Honda Motor Cycle under Ex.P-12 mahazar and the said Hero Honda Motor Cycle is marked as M.O.12.
Then, P.W.14 Inspector of Police despatched the material objects to the Court and remanded the accused to judicial custody.
On the basis of the confession given by A.2 Santhosh, the Police went to Kerala State at Thottupuzha and in the presence of the father of A.2 namely Arunachalam, they made a search and Ex.P-16 is the search list and seized M.O.11 revolver and M.O.3, in the presence of same witness and sent M.O.11 revolver to the Court and with a requisition Ex.P-17, it was sent for ballistic expert's opinion.
Since P.W.14 Inspector of Police was transferred, P.W.16 Inspector of Police took up the matter for investigation. He came to know that the accused also committed the offence under Sections 3 and 25 (1-B)(1-A) of the Arms Act and before filing the charge sheet, he obtained sanction from the Police Commissioner and gave a requisition and received the sanction under Ex.P-18.
On 18.4.1997, after concluding the investigation, P.W.16 Inspector of Police filed the charge sheet against the accused for the offences under Sections 147, 148, 450, 395 and 397 IPC and Section 25(1-B)(1-A) of the Arms Act.
3. The trial Court, after following the formalities, framed necessary charges against the accused, to which, they pleaded not guilty. On examining P.Ws.1 to 16, marking Exs.P-1 to P-18 and M.Os.1 to 13, the trial Court posed questions putting incriminating evidence against the accused, which was denied by them. The accused examined one Jayaraj as D.W.1, the News Editor of the newspaper "Daily Thanthi" and through him, the news item published on 29.1.1997 was marked as Ex.D-1. The trial Court, after considering the oral and documentary evidence and the arguments put-forth by both sides, convicted and sentenced the accused as indicated above.
4. Challenging the conviction and sentence passed by the trial Court, learned counsel for A.1 and A.4 (the arguments of the learned counsel for A.1 were adopted by the learned counsel for A.4) submitted that the genesis of the occurrence is highly suspicious. The evidence of P.W.1 and P.W.14 Inspector of Police, contradict with each other in respect of the complaint. The time of commencement of the investigation is much prior than the lodging of the complaint. There is a material contradiction between the evidence of P.W.1 and P.W.11 Ramesh, who is the owner of the gold. The time of occurrence has not been spoken to by P.W.14 Inspector of Police. A.1's arrest by P.W.15 Inspector of Police, was not proved in accordance with law. The recovery under Section 27 of the Indian Evidence Act, was not proved. The chilli powder was not recovered from the scene of occurrence. The chilli powder was found in the lungi, towel, etc., and the chilli powder packet in the table, was not seized and marked and not sent for chemical examination.
5. Learned counsel for A.1 and A.4 further contended that even though the services of the finger print expert were utilised, no finger print expert was examined and the report of the finger print expert was not marked. Though the photographer's services were utilised, but the photographs were not marked and the photographer was not examined before Court. The arrest and recovery from A.2 and A.3 were not proved by way of examining the attestors of the confession and recovery. It is highly doubtful that M.O.10 gold bracelet belongs to P.W.1, because P.W.1 has not stated that M.O.10 bracelet has been stolen by the accused. As per the evidence of P.Ws.5,6,7 and 8, P.W.1, at the time of commission of offence, 800 gms. of gold was not given by P.W.11 on that day. From the said 800 gms. of gold, half portion was converted as chain and the other half portion was converted as gold wire for making a chain, but the recovery was only gold ingot and so far, P.W.11, the owner of gold, has not filed any application for return of M.Os.2 to 9 gold ingot.
6. Learned counsel for A.1 and A.4 further submitted that during the test identification parade, only on seeing the photographs, the witnesses identified A.1 and A.4. Non-examination of Chellappan, who helped P.W.1 in writing the complaint, is fatal. P.W.5 Raja's evidence is only improvement of the case. The attestor of observation mahazar was not examined. Learned counsel for A.4 relied upon the evidence of D.W.1 and Ex.D-1, stating that the properties shown in the photograph in Ex.D-1 are not the properties (gold ingot and jewelleries) and to prove the same, D.W.1 was examined and only M.Os.1 and 10 alone were identified and proved to show that M.O.1 gold chain belongs to P.W.3 Omana and M.O.10 gold bracelet, belongs to P.W.1. But admittedly, the gold ingot has not been stolen by the accused, whereas, the 'news item' in Ex.D.1 stated that there was a recovery of the jewelleries, which were handed over to P.W.1. Learned counsel for A.1 and A.4 prayed for giving the 'benefit of doubt' in favour of A.1 and A.4 and for acquittal of A.1 and A.4. Learned counsel for A.1 and A.4 relied upon various decisions of Courts in support of their contentions.
7. Learned counsel for A.3 contended that A.3 was charged for the offence under Section 414 IPC. The evidence of P.W.14 Investigating Officer is not corroborated by the evidence of P.W.10 Thangappan, the attestor to the confession of the accused and also the recovery from P.W.12 Vellingiri, who alleged to have handed over M.Os.2 to 5 gold ingot, and the evidence of P.W.10 and P.W.14 contradict with each other. Non-examination of Sivan has disproved the arrest of A.3. He prayed for acquittal of A.3.
8. Learned counsel for A.2 would submit that the evidence of P.W.10 Thangappan and P.W.13 Sivakumar, contradict with each other. Relying on the decision of the Supreme Court reported in 1994 (1) SCC 387 (Achyut Das Vs. State of Assam), learned counsel for A.2 would submit that A.2 and A.3 were convicted for the offence under Section 414 IPC and the material objects seized from P.W.12 and P.W.13, on the basis of the confession of A.2 and A.3, are the stolen properties and after knowing that those properties are stolen properties, A.2 assisted in concealing the material objects and there is no evidence for the same. He prayed for acquittal of A.2.
9. Learned Government Advocate (Criminal Side) appearing for the respondent-Police, submitted that there is no delay in preferring the complaint. The evidence of P.Ws.1 and 3 to 8 corroborate with each other and their evidence is natural and cogent. P.Ws.1 and 3 to 8 identified A.1 and A.4 in the test identification parade conducted by P.W.2 Judicial Magistrate. P.W.9 deposed that after hearing the noise, she came and opened the workshop door. The evidence of P.W.10 Thangappan, P.W.12 Vellingiri and P.W.13 Sivakumar, proved that M.Os.1 to 10 were seized on the basis of the confession given by A.2 and A.4. The trial Court has considered all the aspects in proper perspective and came to the correct conclusion. The judgment of the trial Court does not warrant any interference.
10. This Court has to decide as to whether the evidence of P.Ws.1 and 3 to 8, who are the alleged eye-witnesses, is reliable and trustworthy. The argument of the learned counsel for the appellants-accused that the evidence of P.Ws.1 and 3 to 8, is contradicting with each other, is unacceptable. While considering the evidence of P.Ws.1 and 3 to 8, their evidence clearly proved that on 3.6.1996 at about 8.30 p.m., the accused entered into the house/workshop of P.W.1 and committed the offence. Admittedly, the above eye-witnesses previously do not know the accused. Their evidence is cogent, natural and corroborate with each other. So, there is no reason for discarding their evidence. Their evidence is also corroborated by the evidence of P.W.9, who is the daughter of the house owner of P.W.1 and P.W.9 stated that after she heard the noise of hue and cry, she went to the first floor and opened the door which was locked from outside. So, the occurrence has been proved by the prosecution.
11. Learned counsel for the appellants-accused submitted that during the test identification parade, only on seeing the photographs, the witnesses identified A.1 and A.4. In support of his contention, learned counsel relied on a decision of a Division Bench of this Court, reported in 2006 (1) L.W. (Crl.) 179 (Abuthagir @ Thagir & Others Vs. State, etc.), in which it was held as follows:
"27. The Apex Court in D.Gopalakrishnan v. Sadanand Naik (2005 1 SCC 85) has held that if the accused is available for identification, his photograph should not be shown, though police is entitled to show photograph to confirm whether the investigation is going on in the right direction. It is further held, that if the suspect is available for identification or for video identification, the photograph shall never be shown to the witnesses in advance. It is also held by the Apex Court in N.J.Suraj v. State rep. by Inspector of Police (2004 (11) SCC 346) that if it is brought to surface that the photograph of the accused was shown to the witnesses before conducting identification parade, the test identification parade becomes meaningless and the same may not have any evidentiary value. It is held as follows:
"The appellant was put to the test identification parade where these witnesses are said to have identified the appellant, but in their evidence they admitted that the photograph of the accused was shown to them before holding the test identification parade. In view of the fact that the photograph of the accused was shown to the witnesses, their identification in the test identification parade becomes meaningless and no reliance could be placed thereon."
28. ... ..... Unfortunately, the trial Court, without considering the above facts, as well as the evidence available on record, that there was an opportunity for the witnesses to see the photographs of the accused before the test identification parade, based its conclusion on the basis of the test identification, which is not acceptable to us, that too in view of the dictum laid by the Apex Court."
12. In the said decision, it was held by the Supreme Court that if the accused is available for identification, his photograph should not be shown, though police is entitled to show photograph to confirm whether the investigation is going on in the right direction. It is further held, that if the suspect is available for identification or for video identification, the photograph shall never be shown to the witnesses in advance. But, in the present case, during the identification parade conducted by P.W.2 Magistrate, P.Ws.1 and 3 to 8 have identified A.1 and A.4 twice. The argument of the learned counsel for the appellants-accused that the photographs alone have been shown to the above witnesses, does not hold good, because, as per the evidence of P.W.2 Magistrate, in the identification parade itself, A.1 and A.4 stated that the photographs have been taken at the Police Station. In such circumstances, merely the witnesses have stated that they have seen the accused in the Police Station, it will not affect the case against the accused, because, A.1 and A.4 and the absconding accused Sibu, were with these witnesses for more than half-an-hour at the time of occurrence. Hence, the witnesses have fond remembrance of the accused, since they have committed the offence. The occurrence took place on 3.6.1996. The test identification parade was conducted on 14.2.1997, nearly eight months after the occurrence. One of the witnesses stated that he has seen the accused in the Police Station and the other witnesses have stated that they have seen the accused at the time of occurrence. Therefore, P.Ws.1 and 3 to 8 have identified A.1 and A.4 twice in the test identification parade and even during the course of trial, the witnesses have identified the accused before Court. So, P.Ws.1 and 3 to 8 have clearly identified A.1 and A.4 in the test identification parade, which has proved that A.1 and A.4 have committed the robbery on 3.6.1996. Hence, I am of the view that A.1 and A.4 have committed the offence.
13. It is true that the handing over of 800 gms. of gold to P.W.1 was deposed by P.W.11. Even though the investigating officer has verified the document regarding the handing over of gold to P.W.1 for manufacturing gold ornaments, the investigating officer has not seized any receipt/register for the same. Merely because the investigating officer has not seized any document/receipt/register, it will not affect the case of the prosecution.
14. In this context, learned counsel for the appellants-accused relied upon the decision of the Supreme Court reported in AIR 1987 SC 955 (Param Hams Yadav Vs. State of Bihar), in which the Apex Court held as follows:
"17. Before we part with the case, we must point out that in a case involving the killing of the District Magistrate in his office, better investigation was expected and the State should have taken great care to ensure that every loophole in the investigation was plugged at the right time in accordance with law. It is unfortunate that lapses have occurred."
15. While considering the said decision of the Supreme Court, it was a case of conviction for the offences under Sections 302 and 120-B IPC and the case was based on circumstantial evidence and so, the links of each and every circumstance have not been established and the chain has not been completed and it is incomplete in evidence. The present case is based on the eye-witnesses and they have identified A.1 and A.4 before the test identification parade conducted by P.W.2 Magistrate and also during the course of trial.
16. Learned counsel for the appellants-accused further relied upon the decision of the Supreme Court reported in 2001 (4) Crimes 42 (SC) (State of Karnataka Vs. Ramanjanappa and others) to show that the graver the offence, greater should be the care taken to see that neither an innocent person is convicted, nor a guilty is allowed to escape.
17. There is no quarrel over the said proposition. But in the present case, the case was registered for the offence under Section 395 read with 397 IPC, for robbery, that too during night hours in Coimbatore District and P.Ws.1 and 3 to 8 do not previously know the accused and after the accused were arrested, the witnesses identified the accused in the identification parade. Moreover, A.1 and A.4 were earlier arrested in connection with another case in Coimbatore R.S.Puram Police Station Cr.No.47 of 1997 and on the basis of the confession given by A.1 and A.4 in that case, the Police came to know that the accused are also involved in the present case and in such circumstances, the investigating officer has taken care and followed the procedures.
18. Learned counsel for the appellants-accused relied upon the following decisions of the Supreme Court in support of his contention regarding appreciation of evidence of the witnesses:
(a) In the decision reported in 1977 Cri.L.J. 238 = AIR 1977 SC 381 (N.D.Dhayagude Vs. State of Maharasthra), the Supreme Court held as follows:
"Where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused."
(b) In the decision of the Supreme Court reported in 1997 SCC (Cri) 1222 (Rambilas Vs. State of M.P), the Supreme Court held as follows:
"5. We have very carefully gone through the judgments of both the courts below and with respect we find that notwithstanding the concurrent judgments thereof we are unable to sustain the convictions of the appellants on any count. It is well settled that this Court would be slow to interfere with the findings of facts recorded by the courts below which are based on appreciation of evidence but we are of the considered view that the Sessions Court as well as the High Court have mechanically read the evidence of the eyewitnesses and totally ignored the well-known principle of appreciation of evidence. We have very carefully gone through the evidence of PW 2, PW 3, PW 5 and PW 6 who claimed to be eyewitnesses. If we compare the evidence of these eyewitnesses it is immediately noticed that their evidence is just like parrot telling what is taught. Even the omissions, contradictions and improvements are identical. The claim of these eyewitnesses is totally unbelievable when they testified that they had gone to the place of occurrence. .... ..... .... After going through the evidence of these four star witnesses who constituted the backbone of the prosecution story, we are of the considered view that in all probabilities it was a blind murder.
6. It is no doubt true that there was no motive for these eyewitnesses to implicate the appellants in the present crime. That by itself would not lend any foolproof assurance that their evidence is credible and trustworthy. ...... ..... .... The courts below, in our opinion, had failed to read the evidence of these eyewitnesses in a proper perspective and had fallen into error in accepting their evidence as credible and truthful."
19. The abovesaid two decisions are regarding appreciation of the evidence of the witnesses. It is true that here and there, there are minor contradictions between the evidence of P.Ws.1 and 3 to 8 and their statements made under Section 161 Cr.P.C., but it will not affect the case of the prosecution.
20. Next, learned counsel for the appellants-accused would further contend that there is a delay in preferring the complaint and sending the same to the Magistrate. In this regard, he relied upon the following decisions of this Court:
(i) 1974 L.W. (Crl) 190 (Karunakaran Jabamani Nadar, In re) "It is imperative that the following documents should be despatched immediately, without any delay by the investigating officers to the Sub-Magistrate. The Station-House Officer should record the time of the actual despatch of the various documents in the various registers, particularly, the statement recorded under S.154 of the Crl.P.C. On receipt of the said documents, the Magistrate should initial the same, noting there in the time and date of the receipt of those documents. This would provide the only judicial safeguard against subsequent fabrications of such document in grave crimes. .... The following are documents of special importance which, should be despatched by the investigating officers without any delay to the Magistrates, and they should bear the initials of the Magistrate with reference to both the time and date of their receipt:
1. The original report or complaint under S.154 of the Crl.P.C.
2. The printed form of the F.I.R. (first information report) prepared on the basis of the said report or complaint.
3. Inquest reports and statements of witnesses recorded during the inquest.
4. Memo sent by the Station House Officers to doctors for treating the injured victims who die in the hospital subsequently and the history of the case treatment.
5. Memo sent by the doctor to the police when a person with injuries is brought to the hospital, or the death-memo sent by the doctor to the police on the death of the person admitted into the hospital with injuries.
6. Observation mahazars and mahazars for the recovery of material objects, search lists and the statements given by the accused admissible under S.27 of the Evidence Act, etc., prepared in the course of the investigation.
7. The statements of witnesses recorded under S.161(3) of the Crl.P.C.
8. Form No.91, accompanied by material objects."
(ii) 1976 L.W.(Crl). 115 (Vadivelu.K. And others) "15. In Thulia Kali v. State of Tamil Nadu, A.I.R. 1973 S.C. 501, the Supreme Court has observed that 'On account of delay the report not only gets benefit of the advantage of sponteneity', danger creeps in on the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is therefore essential that the delay in the lodging of the first information report should be satisfactorily explained". ...."
(iii) 2006 (1) L.W. (Crl.) 179 (Abuthagir @ Thagir & Others Vs. State, etc. "29. It is expected from the prosecution that the papers connecting the crime starting from F.I.R. should reach the Judicial Magistrate concerned without any delay as far as practicable. If any delay occasioned unavoidably, that alone should not cast cloud provided that delay is explained. As pointed out by the learned senior counsel, a Division Bench of this Court in Karunakaran Jabamani Nadar In re (1974 L.W. Crl. 190) held that the statements of witnesses recorded under Section 161(3) of Cr.P.c. having special importance they should be despatched by the Investigating Officer without any delay to the Magistrate and they should bear the initials of the Magistrate with reference to both the date and time of the receipt. Though Criminal Procedure Code does not prescribe any such guideline, it is declared by this Court, that the documents, which are coming within the meaning of special importance should reach the judicial authority in time, thereby preventing its challenge at later point of time as if concocted one utilizing the delay etc. to suit the convenience of the prosecution. If the important documents had reached the judicial hand, then it could be safely said that the averments contained in the documents came into existence at appropriate time, not utilising the delay, thereby it should be given its due weight and credence. This kind of safeguard was not made available to the statements of P.Ws.5 & 6, thereby creating a dark cloud upon their statements even compelling us to say that the statements might have been recorded at later point of time, fixing the accused even after identification."
21. In the present case, even though the alleged occurrence took place on 3.6.1996 at about 8.30 p.m., the complaint Ex.P-1 was registered at 11.30 p.m. and the FIR reached the Court on 4.6.1996 at 1.20 a.m. Since no name of the accused was given in the complaint, the accused earlier remained unidentified. After A.1 and A.4 were arrested in connection with R.S.Puram Cr.No.47 of 1997 for the offence under Section 397 IPC, they gave a confession and on the basis of that confession only, the Police came to know that A.1 and A.4 were also involved in the present case in Cr.No.1170 of 1996 and P.W.15 Inspector of Police intimated this fact to P.W.14 Inspector of Police, who took up the matter for investigation and arrested A.2 and A.3 and recovered M.Os.1 to 10. In such circumstances, there is no delay in the present case, and if at all there is delay, it is not fatal to the case of the prosecution.
22. Learned counsel for the appellants-accused further relied upon the decision of the Supreme Court reported in AIR 1973 SC 501 = 1972 Cri.L.J. 1296 (Thulia Kali Vs. State of Tamil Nadu), in which it was held by the Supreme Court as follows:
"13. As regards the alleged recovery of knife and ornaments at the instance of the accused, we find that the evidence consists of statements of Inspector Rajagopal (PW 13), Kali Goundar (PW 6) and Chakravarthi (PW 9). According to Chakravarthi (PW 9), the accused handed over the ornaments in question to the witnesses when the accused came to the house of the witness on the evening of March 12, 1970 and passed the night at the house. The witness also found knife in the bed of the accused after he had left on the following day. According however to Kali Goundar (PW 6) the accused on interrogation by the Inspector of Police, stated that he had entrusted the ornaments to Thangam, wife of Chakravarthi (PW 9). Apart from the discrepancy on the point as to who was the person with whom the accused had kept the ornaments we find that Thangam with whom the accused according to Kali Gounder PW had kept the ornaments, has not been examined as a witness. In view of the above statement of Kali Gounder, it was, in our opinion, essential for the prosecution to examine Thangam as a witness and its failure to do so would make the Court draw an inference against the prosecution."
23. Relying on the said decision, learned counsel for the appellants-accused submitted that non-examination of Sivan and Arumugham, is fatal to the case of the prosecution. Already, P.Ws.1 and 3 to 8, the eye-witnesses, were examined and that Sivan and and Arumugham also entered into the house during the occurrence after A.1 and A.4 and Sibu (absconding accused) entered into the house and only after Sivan and Arumugham knocked the door, A.4 opened the door and permitted them to enter into the house and A.4 kept them along with the other eye-witnesses and locked them also. In such circumstances, there is plenty of eye-witnesses, namely P.Ws.1 and 3 to 8, who were present and non-examination of Sivan and Arumugham is not fatal to the case of the prosecution.
24. Learned counsel for the appellants-accused relied on the decision of the Supreme Court reported in 1997 SCC (Cri) 1222 (Rambilas Vs. State of M.P), in which the Supreme Court held as follows:
"7. Coming to the other corroborative evidence, viz., recovery of certain incriminating articles at the instance of the appellants under Section 27 of the Evidence Act, assuming it to be true, the same cannot form the basis of conviction in the present case. In our considered view the Sessions Court as well as the High Court had committed an error while convicting the appellants under Sections 302 and 201 IPC and consequently both the judgments are required to be upset."
25. Relying on the said decision, learned counsel for the appellants-accused submitted that mere recovery of material objects, is not sufficient to sustain the conviction imposed by the trial Court. In the present case, in the presence of P.W.10 Thangappan and one Kunjuraman, P.W.14 Inspector of Police seized M.Os.1 to 5 from P.W.12 and M.Os.6 to 10 from P.W.13 Sivakumar and M.Os.1 and 10 have been identified by P.W.1 and P.W.3. So, the identification of the properties have been proved. Furthermore, there are eye-witnesses who have categorically deposed that A.1 and A.4 entered into the house and committed the offence and they have identified A.1 and A.4 in the test identification parade as well as before Court during the course of trial. In the above circumstances, the trial Court has considered this aspect and then only came to the correct conclusion. Hence, I am of the opinion that the recovery of the material objects is only one more adding factor to sustain the conviction of the accused.
26. Learned counsel for the appellants-accused further relied upon the decision of the Supreme Court reported in 2010 (1) M.L.J. (Crl) 124 (SC) (Shaikh Maqsood Vs. State of Maharashtra), in which it was held by the Supreme Court as follows:
"Ratio decidendi": A conviction based on the failure of the accused to explain what he was never asked to explain is bad in law. The whole object of Section 313 of Cr.P.C. is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him. Fairness requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand."
"9. The importance of observing faithfully and fairly the provisions of Section 313 of the Code cannot be too strongly stressed. It is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material substance which is intended to be used against him. The questionings must be fair and couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand."
27. Relying on the said decision of the Supreme Court, learned counsel for the appellants-accused submitted that during the questioning of the accused under Section 313 Cr.P.C., no specific and separate question has been posed to them. The said decision is based on circumstantial evidence and so, not putting specific and simple questions, was fatal in that case, as the accused was unable to understand and give answer to confused questions. The case on hand is based on the evidence of the eye-witnesses P.Ws.1 and 3 to 8 and to prove arrest, P.W.15 Inspector of Police was examined. Moreover, P.Ws.1 and 3 to 8 and P.W.15 Inspector of Police were cross examined lengthily by the accused. There is no evidence to show that not posing simple questions, has caused prejudice to the accused. In such circumstances, I am of the view that the said decision is not applicable to the facts of the present case.
28. Learned counsel for the appellants-accused further submitted that non-examination of the attestor to Ex.P-14 observation mahazar, non-seizure of chilli powder and non-examination of finger print expert and photographer, are all fatal to the case of the prosecution. Admittedly, Ex.P-14 observation mahazar has proved that the chilli powder spread over in the place of occurrence and it has been proved. Further, merely non-marking of the photographs, is not fatal to the case of the prosecution, since the evidence of eye-witnesses P.Ws.1 and 3 to 8, is available. P.W.14 Inspector of Police stated that even though they have utilised the services of finger print expert, no foreign finger prints have been found in the place of occurrence, except the inmates of the workshop/house, and there is no need to examine the finger print expert, and so, the explanation offered by the investigating officer is convincing and so, non-examination of finger print expert will also not vitally affect the case of the prosecution. Further, non-examination of attestor to the observation mahazar is also not fatal to the case of the prosecution. The attestor has not implicated the accused in the commission of the offence and he has simply attested the observation mahazar during investigation by P.W.14 Inspector of Police, who inspected the place of occurrence and the properties and prepared the observation mahazar. For these reasons, non-examination of the attestor to Ex.P-14 observation mahazar, non-seizure of chilli powder and non-examination of finger print expert and photographer, are all not fatal to the case of the prosecution.
29. Further, learned counsel for the appellants-accused contended that one Chellappan, who assisted P.W.1 in writing the complaint Ex.P-1, has not been examined and the same will affect the case of the prosecution. Admittedly, P.W.1 in his evidence stated that since he was not well-versed in Tamil, as soon as the incident was over, he informed the same to his brother Chellappan and P.W.1 narrated the facts to Chellppan, who alone wrote Ex.P-1 complaint. Both P.W.1 and Chellappan submitted Ex.P-1 complaint before P.W.14 Inspector of Police. It is true that the said Chellappan was not examined before Court. When P.W.1 himself was in the box and when there is no contradiction in his evidence compared to Ex.P-1 complaint, and the complaint is corroborated, mere non-examination of Chellappan, the scribe of Ex.P-1 complaint, is not fatal to the case of the prosecution and hence, I am of the opinion that non-examination of Chellappan has also not affected the case of the prosecution.
30. Learned counsel for the appellants-accused further relied upon the evidence of D.W.1 and Ex.D-1, stating that the properties shown in the photograph in Ex.D-1 news item, are only finished jewelleries and not the gold ingot and to prove the same, D.W.1 was examined and only M.Os.1 and 10 alone were identified and proved to show that M.O.1 gold chain belong to P.W.3 Omana and M.O.10 gold bracelet belongs to P.W.1. But admittedly, the material objects--gold ingot, have not been stolen by the accused, whereas, the 'news item' in Ex.D.1 stated that there was a recovery of the jewelleries and the same were handed over to the owners. Merely because D.W.1's evidence and Ex.D-1 are available, it will not affect the case of the prosecution, because, now-a-days, the investigating agencies are taking the law into their own hands for publicity, and in the present case, Ex.D-1 news item with the photograph, will not in any way help the accused, and it will also not affect the case of the prosecution. This aspect has been discussed by the trial Court in paragraph 41 of its judgment. So, the evidence of D.W.1 and Ex.D-1 will not fasten any relevancy in this case.
31. So, on the basis of the materials available before Court and from the evidence of P.Ws.1 and 3 to 8, it is proved that A.1 and A.4 along with the absconding accused Sibu, trespassed into the house/workshop of P.W.1 and committed robbery and hence, the trial Court has come to the correct conclusion that A.1 and A.4 are guilty of the offence under Section 457 IPC. Further, from the evidence of P.W.10 Thangappan, P.W.12 Vellingiri and P.W.13 Sivakumar, it is proved that the properties seized from P.Ws.12 and 13, i.e. in M.Os.1 and 10, belong to P.Ws.1 and 3 and their daughters. So, the arrest, confession, seizure and the evidence of P.Ws.1 to 9, have all clearly proved that A.1 and A.4 are also guilty of the offence under Section 392 read with 397 IPC. Hence, the conviction imposed on A.1 and A.4 for the offences under Section 457 and Section 392 read with 397 IPC, does not warrant any interference.
32. Next, this Court has to decide as to whether A.2 and A.3 are guilty of the offence under Section 414 IPC. As per the confession given by A.2 in the presence of P.W.10 Thangappan and Kunjuraman, the admitted portion of the confession of A.2 being Ex.P-6, M.Os.1 to 5 have been seized under Ex.P-8 mahazar from P.W.12. M.O.1 belongs to P.W.1. Likewise, the evidence of P.W.10 and confession of A.3, the admitted portion of the confession of A.3 being Ex.P-7 and seizure of M.Os.6 to 10 under Ex.P-9 mahazar from P.W.13,have all proved that A.3 assisted to conceal the stolen properties. In this regard, learned counsel for A.2 relied upon the decision of the Supreme Court reported in 1994 (1) SCC 387 (Achyut Das Vs. State of Assam), in which the Supreme Court held that it is essential that there should be knowledge that the articles were stolen in a dacoity; the prosecution must prove such knowledge; mere unexplained possession of stolen articles would give rise to a presumption that the accused knew that articles were stolen, in which case, Section 411 IPC and not Section 412 IPC would be attracted.
33. In the present case, A.2 and A.3 were convicted for the offence under Section 414 IPC. In this context, it is relevant to quote Section 414 IPC:
"Section 414 IPC: Assisting in concealment of stolen property: Whoever voluntarily assists in concealing or disposing of or making away with property which he knows or has reason to believe to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
34. The properties M.Os.1 to 10 seized from P.Ws.12 and 13 belong to P.W.1 and they neither belong to P.W.12, nor P.W.13. Only on the basis of the confession of A.2 and A.3, the properties have been seized and so, A.2 and A.3 had the knowledge that the properties are stolen properties and they sold the same to P.Ws.12 and 13. The trial Court has considered this aspect in proper perspective and came to the conclusion that A.2 and A.3 are guilty of the offence under Section 414 IPC, for assisting in the concealment of stolen properties.
35. As discussed in the earlier paragraphs, the trial Court has considered the material evidence and the oral and documentary, before it in proper perspective and came to the correct conclusion that A.1 and A.4 are guilty of the offences under Section 457 IPC and Section 392 read with 397 IPC and A.2 and A.3 are guilty of the offence under Section 414 IPC and accordingly, they were convicted for the said offences. There is no reason to interfere with the same and the conviction of A.1 and A.4 for the offences under Section 457 IPC and Section 392 read with 397 IPC and conviction of A.2 and A.3 for the offence under Section 414 IPC, are liable to be confirmed.
36. Regarding the quantum of sentence of imprisonment, considering the gravity of the offence, since even in a previous case, the accused were involved in the robbery, I am not inclined to interfere with the sentences imposed by the trial Court for the said offences, and hence, the sentences of imprisonment, are also liable to be confirmed.
37. In the result:
(a) The Criminal Appeals are dismissed.
(b) The conviction and sentence imposed on A.1 and A.4 for the offences under Section 457 IPC and Section 392 read with 397 IPC, are confirmed.
(c) The conviction and sentence imposed on A.2 and A.3 for the offence under Section 414 IPC, are confirmed.
(d) Since A.1 to A.4 are on bail, the trial Court is directed to take steps to secure their custody to undergo the remaining period of sentence.
(e) The period of imprisonment already undergone by A.1 to A.4 shall be set-off under Section 428 Cr.P.C.
cs ============================= After the pronouncement of the judgment, the learned counsel appearing for A1 represented that they want Special Leave to Appeal before the Supreme Court. No Special Leave is granted. He is directed to take appropriate steps in accordance with law.
msr To
1. The Additional District and Sessions Judge (Fast Track Court No.2), Coimbatore.
2. The State, rep. by Inspector of Police, B.1 Bazaar Police Station, Coimbatore.
(Crime No.1170 of 1996)
3. The Public Prosecutor, High Court, Madras