Madras High Court
Kannan vs State Through on 30 June, 2010
Author: M.Chockalingam
Bench: M.Chockalingam, M.Duraiswamy
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30/6/2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.DURAISWAMY Criminal Appeal (MD)No.159 of 2009 Kannan .. Appellant Vs State through The Inspector of Police, Kanyakumari Police Station, Kanyakumari District. (Crime No.34 of 2004) .. Respondent Criminal Appeal filed under Section 374(2) of Cr.P.C against the judgment dated 24/6/2009 made in S.C. No.79 of 2005 by the learned Sessions Judge, Nagercoil, Kanyakumari District. !For appellant ... Mr.V.Kathirvelu ^For respondent ... Mr.M.Daniel Manoharan Addl.Public Prosecutor :JUDGMENT
(Judgment of the court was delivered by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the learned Sessions Judge, Nagercoil, Kanyakumari, passed in S.C. No.79 of 2005 on 24/6/2009, whereby the sole accused/appellant stood charged, tried, found guilty and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for a period of six months for the offence under section 449 IPC; to undergo life imprisonment and to pay a fine of Rs.3,000/- in default to undergo simple imprisonment for a period of one year for the offence under Section 302 IPC and to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for a period of six months for the offence under Section 380 IPC.
2. The short facts that are necessary for the disposal of this appeal can be stated as follows:-
a. The accused is a resident of Sasthan Koilvilai, Swamithoppu. The deceased Krishnaveni was residing at Door No.11/6B, P.W.D Quarters at Kottaram with her husband Lakshmanan, who was working as a Laskar at P.W.D. Office, Kottaram. On 21/1/2004 at about 14.45 hours, the accused effected entry into the house of the deceased through the back door of the house, assaulted her on her forehead, caused severe injuries and stolen away her gold jewels. P.W.1, who is the defacto complainant and the brother of the deceased, went to the house of the deceased at about 3.30 p.m., on 21/1/2004 and found the door locked from inside. Since there was no response after knocking the door, he peeped into the window and found the deceased lying in the bed with pillow covering her face. Entertaining doubt, he got entry into the house through the back door and found that the deceased lying with bleeding injuries and the jewels were also stolen. Immediately, she was taken to the hospital where she was declared dead. P.W.1 rushed to the respondent Police Station immediately and gave Ex.P.1 the report to P.W.12 Sub-Inspector of Police. On the strength of which a case was registered in Crime No.34 of 2004 under Section 302 IPC. Ex.P.14 is the death intimation and Ex.P.18 is the registered First Information Report. Express FIR was despatched to the Judicial Magistrate Court and the copies were also sent to the higher-ups.
b. On receipt of the copy of F.I.R., P.W.13 the Inspector of Police, took up the investigation. Along with Scientific Assistant, P.W.8 Police photographer and fingerprints expert, he proceeded to the scene of occurrence, made an inspection in the presence of witnesses and prepared an Observation Mahazar Ex.P.16, and Rough Sketch Exs.P.21 and P.22. Further, he conducted inquest over the body of the deceased in the presence of witnesses and panchayatars and prepared Ex.P.19 Inquest Report and the dead body was sent for the purpose of autopsy. Thereafter, P.W.13 recovered the material objects from the place of occurrence in the presence of witnesses under athatchi.
c) P.W.4, the Doctor attached to the Government Medical College Hospital, Kanniyakumari conducted autopsy on the dead body of the deceased and she gave her opinion under Ex.P9-Post Mortem Certificate, that the deceased would appear to have died 24 hours prior to the post-mortem and died of shock and hemorrhage due to head injuries.
d) Pending investigation, on 26/1/2004, the investigator arrested the accused. The accused came forward to give a confessional statement, and the same was recorded. P.W.13 recovered M.O.2 gold thali chain, M.O.7 purse and Ex.P.13 jewel pledging card under athachi in the presence of witnesses. Subsequently, P.W.13 recovered M.O.7 blood stained stick, M.O.11 shirt, M.O.12 blood stained pant along with M.O.10 bag under athachi in the presence of witnesses. The accused was sent for judicial remand on 27/1/2004.
e. On 27/1/2004, P.W.13 made a requisition to the Chief Judicial Magistrate, Nagercoil for conducting identification parade.
f. All the material objects recovered from the place of occurrence and from the dead body of the deceased were sent for chemical analysis pursuant to a requisition, Ex.P.20, given by the Investigating Officer to the concerned Judicial Magistrate. Exs.P.24 to 26 are the Chemical analyst's reports and serelogist's report. On completion of the investigation, the Investigating Officer has filed the final report before the concerned court, which in turn committed the case to the Court of Sessions and necessary charges were framed.
g) In order to substantiate the charges, at the time of trial, the prosecution examined 14 witnesses and relied on 26 exhibits and 22 M.Os. On completion of the evidence on the side of the prosecution, the accused/appellant was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses. He denied them as false. No defence witness was examined. After hearing the arguments of the counsel and looking into the available materials, the trial Court, found the accused guilty and awarded the punishment as referred to above. Under these circumstances, this criminal appeal has arisen at the instance of the accused/appellant.
3. Advancing arguments on behalf of the accused/appellant, the learned counsel for the accused/appellant would submit that, the occurrence had taken place on 21/1/2004 before 3.30 p.m. The complaint was given at about 9.45 p.m., by P.W.1. It is a case where the prosecution had no direct evidence to offer. The prosecution relied upon only circumstantial evidence. P.Ws.8 and 11 are the husband and wife respectively, who were actually the neighbours of the deceased. Out of these two witnesses, P.W.11 turned hostile. The investigator would claim that the accused was arrested on 26/1/2004. But P.W.8 has categorically stated that the accused was arrested on 21/1/2004 when he was found stealing coconuts and he was taken to custody. From the evidence of P.W.8 it would be quite clear that the claim of the investigator that the accused was arrested on 26/1/2004 is false.
4. Added further the learned Counsel that the footprints that were found in chappals were actually found tallying with that of the accused and that was the strong piece of evidence and the same was also accepted by the trial Court. But there is absolutely no evidence by whom and when the fingerprints of the accused were actually taken and it was not taken properly and procedurally. Therefore, no question of tallying would arise and hence those piece of evidence should not have been accepted by the trial Court. So far as the recovery of jewels is concerned, they were actually introduced for the purpose of the case. Further, all the statements had reached the Court only after a period of one year i.e., on 15/2/2005 and all would clearly go to show that the prosecution has miserably failed to prove its case but, the learned Trial Judge has taken an erroneous view and rendered judgment against the accused and hence the judgment of the Trial Court has got to be set aside.
5. The Court heard the learned Additional Public on the above contentions and paid its anxious consideration on the submissions made and also scrutinised the materials available.
6. It is not in controversy that in the afternoon hours of 21/1/2004, the deceased was done to death and jewels were robbed. Following the complaint given by P.W.1 and the registration of the case by the Sub-Inspector of Police of the concerned Police Station, P.W.13, the Inspector of Police took up investigation, proceeded to the spot, conducted inquest and prepared the inquest report. On a requisition made by P.W.13, P.W.4 the Medical Officer, attached to the Government Hospital, Kanniyakumari, conducted autopsy and gave an opinion that the deceased died out of shock and hemorrhage due to head injuries. Thus the prosecution was successful enough in proving the fact that the deceased died out of homicidal violence. From the evidence of P.W.1, the prosecution has also proved that the jewels of the deceased were stolen at the time of occurrence.
7. It is an admitted position that the prosecution had no direct evidence to offer since it had no eye witnesses. It relied exclusively on circumstantial evidence. The circumstances as could be seen from the available materials relied on by the prosecution are as follows:-
(i). Firstly, two witnesses P.Ws.8 and 11, who were the neighbours, were actually taken to identify the accused/appellant and out of those, one of the witnesses viz., P.W.8 had identified the appellant/accused.
(ii). Secondly, the jewels which were worn by the deceased at the time of occurrence, were recovered at the instance of the appellant following the confessional statement made by him, under a cover of mahazar.
(iii). Thirdly, a pair of chappals were recovered from the place of occurrence and the footprints of the accused/appellant were tallying with the footprints found in the chappals.
8. On the strength of these circumstances, the prosecution made its attempt before the trial Court to bring home the guilt of the accused and the learned trial Judge has also accepted the same, but this Court is afraid whether it could accept the finding of the trial Judge on the above stated circumstances. In so far as the evidence adduced through P.W.8 in respect of the identification parade is concerned, the Court has to necessarily disagree with the prosecution. The occurrence had taken place on 21/1/2004 before 3.30 p.m. It is not the evidence of P.W.8 that he was available at the time of occurrence or he has witnessed the occurrence. Moreover, he has not stated anywhere that he saw the accused at the time and place of occurrence. In a given case, so long as the witness was not available at the place and time of occurrence, there is no need to conduct identification parade, but the identification parade was conducted in the instant case. The reason for conducting identification parade was not made known. But P.ws.8 and 11 were taken to the identification parade to identify the accused and out of these two witnesses, P.W.11 turned hostile. P.W.8 has categorically stated that the accused was caught by the public when he was stealing coconuts on 21/1/2004. Contrarily, the investigator would claim that he arrested the accused on 26/1/2004, when he gave the confessional statement. It would be quite clear that the evidence of P.W.8 was of no significance in the instant case and hence it should have been rejected.
9. so far as the recovery of the chappals from the place of occurrence is concerned, there is evidence to that effect, but no mandatory procedure was followed in taking the footprints from the accused and so long as there is no evidence available as to when and how the footprints of the accused were taken for the purpose of comparison of the footprints found in the chappals recovered from the place of occurrence, the evidence in that regard cannot be accepted and hence, that piece of evidence is also not helping the prosecution.
10. Except the above two pieces of evidence which were not worth acceptance, what was available for the prosecution is the recovery of the jewels. It is not in controversy that those jewels belonged to the deceased. They were recovered by the investigator in the presence of witnesses and the accused had no explanation to offer how he got custody of those jewels. The prosecution has no evidence to prove the charge of murder and thus, it would be quite clear that the prosecution had failed to bring home the guilt of the accused in respect of the charge of murder. But the evidence available would clearly indicate that he was in possession of the stolen property for which he had no explanation to offer. Under such circumstances, it is a fit case to convict the accused under Section 411 of the Indian Penal Code and award three years rigorous imprisonment.
11. Accordingly, the conviction and the sentence imposed by the Trial Court on the accused / appellant under Sections 449, 302 and 380 IPC are set aside, and instead, he is convicted under Section 411 IPC and he is directed to suffer three years Rigorous Imprisonment. The imprisonment already undergone by the accused / appellant shall be given set off. The fine amount imposed by the Trial Court namely Rs.1,000/- and default sentence will hold good. The other fine amounts if any paid by him shall be refunded to him.
12. The Criminal Appeal is disposed of accordingly.
mvs/asvm To
1. The Sessions Judge, Nagercoil, Kanyakumari District.
2. The Inspector of Police, Kanyakumari Police Station, Kanyakumari District.
3. The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.