Madras High Court
Muniyandi @ Muniraj vs The State Of Tamil Nadu
Author: S.Vaidyanathan
Bench: S.Vaidyanathan, N.Anand Venkatesh
Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
JUDGMENT RESERVED ON : 30.10.2019
JUDGMENT DELIVERED ON : 11.11.2019
CORAM:
THE HON'BLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HON'BLE MR.JUSTICE N.ANAND VENKATESH
Crl.A(MD)Nos.367, 391, 400, 404 & 440 of 2017 and
Crl.A(MD)Nos.175, 49 and 204 of 2018
and
Crl.M.P.(MD).No.3354 of 2018 in Crl.A.(MD).No.204 of 2018
Muniyandi @ Muniraj .. Appellant/Accused No.3
in Crl.A.(MD).No.367 of 2017
Ganesan @ Pushparaj .. Appellant/Accused No.2
in Crl.A.(MD).No.175 of 2018
Ganesan @ Auto Ganesan .. Appellant / Accused No.4
in Crl.A.(MD).No.391 of 2017
Ganesan .. Appellant / Accused No.7
in Crl.A.(MD).No.400 of 2017
Muthu @ Auto Muthu @ Muthukumar .. Appellant/Accused No.5
in Crl.A.(MD).No.404 of 2017
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Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018
Arunkannu .. Appellant/ Accused No.6
in Crl.A.(MD).No.440 of 2017
Sasikumar .. Appellant/Accused No.1
in Crl.A.(MD).No.49 of 2018
Vs.
The State of Tamil Nadu,
represented by,
The Inspector of Police,
B3, Teppakulam Police Station,
Madurai City.
(Crime No.391 of 2013) .. Respondent / Complainant
COMMON PRAYER: Appeals are filed under Section 374(2) of the
Code of Criminal Procedure, against the Judgment, dated
10.08.2017, passed in S.C.No.399 of 2014 by the learned IV-
Additional District and Sessions Judge, Madurai.
In Crl.A.(MD).No.204 of 2018:
Janarthanan .. Appellant / Defacto
Complainant
Vs.
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Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018
1.State by the Inspector of Police,
Theppakulam Police Station,
Madurai District.
(Crime No.391 of 2013) .. Respondent/Complainant
2.Sasikumar
3.Ganesan @ Pushparaj
4.Muniyandi @ Muniraj
5.Ganesan @ Auto Ganesan
6.Muthu @ Auto Muthu @ Muthukumar
7.Arunkannu
8.Ganesan .. Respondents / Accused
PRAYER: Appeal is filed under Section 454 of the Code of Criminal
Procedure, to call for the records and set aside the judgment, dated
10.08.2017, made in S.C.No.399 of 2014, on the file of IV-
Additional District and Sessions Judge, Madurai, in respect of the
property disposal order passed under Section 452 of Cr.P.C., and to
hand over the M.O.Nos.12,13,14 and 15 to the appellant herein.
For Appellant : Mr.M.Rajaraman
for A3
in Crl.A.(MD).No.367 of 2017
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Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018
Mr.M.Jegadeesa Pandian
for A2
in Crl.A.(MD).No.175 of 2018
Mr.A.P.Athithan
in Crl.A(MD).No.204 of 2018
Mr.J.Lawrence
for A4
in Crl.A(MD).No.391 of 2017
Mr.A.K.Alagarasamy
for A7
in Crl.A(MD).No.400 of 2017
Mr.K.Navaneetha Raja
for A5
in Crl.A(MD).No.404 of 2017
Mr.R.Manickaraj
for A6
in Crl.A(MD).No.440 of 2017
Mr.M.Karunanithi
for M/s.P.Balasubramanian
for A1
in Crl.A(MD).No.49 of 2018
For Respondents : Mr.S.Chandrasekaran
Additional Public Prosecutor
for respondent in all appeals
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Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018
&
for R1
in Crl.A.(MD).No.204 of 2018
Mr.M.Rajaraman
for R4 in Crl.A(MD).No.204 of 2018
COMMON JUDGMENT
S.VAIDYANATHAN, J.
AND N.ANAND VENKATESH, J.
All the above Criminal Appeals (Except Crl.A.(MD).No. 204 of 2018) have been filed by A1 to A7 against the Judgment of the learned IV-Additional District and Sessions Judge, Madurai, made in S.C.No.399 of 2014, dated 10.08.2017, convicting and sentencing the accused persons as follows:
Sl. Rank of Offence Imprisonment Fine amount No. the for which accused convicted u/s
1. A1 to A6 341 r/w 34 One month Rs.500/-, in default, IPC Simple to undergo, one Imprisonment month Simple Imprisonment.
2. A1 to A7 364(A) r/w Life Rs.5,000/-, in default, 149 IPC Imprisonment to undergo three months Simple Imprisonment.
http://www.judis.nic.in 5/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 Sl. Rank of Offence Imprisonment Fine amount No. the for which accused convicted u/s
3. A1 to A7 386 r/w Five years Rs.5,000/-, in default, 149 IPC Rigorous to undergo three Imprisonment months Simple Imprisonment.
4. A1 to A7 395 r/w Five years Rs.5,000/-, in default, 149 IPC Rigorous to undergo three Imprisonment months Simple Imprisonment.
5. A1 to A7 506(ii) r/w Two years ----
149 IPC Simple Imprisonment
2. The case of the prosecution in brief:
The victim Janarthanan (P.W.1) was running a medical shop. A1 is said to have acquaintance with P.W.1, since he had done some carpentry work at the residence and office of P.W.1. All the accused persons planned to kidnap Janarathanan and extract money. On 18.04.2013, at about 09.00 p.m., A1 and A6 came to the medical shop of P.W.1 in a two wheeler(M.O.9) and they were waiting near the shop. P.W.1 locked his shop and left around 10.00 p.m., in his two wheeler and while he was travelling near Pandiarajan Hospital, Munichalai Road, A1 and A6 interrupted him and entered into an argument as if P.W.1 had hit a woman with his vehicle and wanted him to visit the hospital. While this incident was http://www.judis.nic.in 6/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 happening, A3, A5 and A7 reached the place in their two wheeler (M.O.11). They got into a TATA Sumo car (M.O.8), in which the other accused persons were already there and P.W.1 was pushed into the car. P.W.1 was taken in the car and he was intimidated by A2 by showing an Aruval and A5 by showing a knife. The eyes of P.W.1 was covered with a cloth. The car reached Velalipatti near Azagarkoil. The accused persons took P.W.1 into a garden and they demanded a sum of rupees One crore as ransom. P.W.1 was continuously threatened and he was made to contact his wife (P.W.2) over phone. P.W.1 told his wife that there is a black colour bag that is available near Muthoot Finance and she was asked to take that bag and use the key available inside the bag and open the bureau and take a sum of Rs.15 lakhs and keep it in the bag and place the bag in the same location from where it was taken by her.
(2.2) As instructed, the wife of P.W.1 brought the money in the bag. Even before she could keep the bag, it was grabbed by A1 and A3, who came in an auto to the said place. While this was happening, P.W.1 was made to continuously talk with his wife (P.W.2), till the bag was snatched away from P.W.2. Thereafter, P.W.1 was dropped near Chittampatti at about 5.00 a.m., on 19.04.2013 by giving him a sum of Rs.200/- and P.W.1 came to the bus stand and went to his relative's house and http://www.judis.nic.in 7/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 informed his wife.
3.Complaint and materials collected in the course of investigation:
While P.W.1 was staying in his relative's house, his wife P.W.2 came and they had a detailed discussion, since they were terrified by the shocking incident. While they were discussing about the incident, she identified A1 to be the person, who had come to do carpentry work at their residence and office and this was also recalled by P.W.1. Thereafter, P.W.1 proceeded to the Thepakkulam Police Station and he gave a complaint(Ex.P.1) on 20.04.2013, at about 8.15 p.m., to the Sub Inspector of Police (P.W.18) and an FIR (Ex.P.29) came to be registered for the offence under Sections 147,148, 341, 342, 364(A), 395 and 506(ii) of IPC.
(3.1) The investigation was taken up by the Inspector of Police (P.W.19) and he went to the place of occurrence near Pandiarajan Hospital on the same day and prepared the observation mahazer (Ex.P.4) and rough sketch (Ex.P.13). He examined the witnesses and recorded their statements under Section 161(3) of Cr.P.C. He arrested A1, on 29.04.2013, at about 10.00 a.m., in the presence of witnesses and recorded his voluntary confession and recovered a sum of Rs.5,15,000/-, a two wheeler, a http://www.judis.nic.in 8/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 winset red colour Rexin bag, an Acer laptop and a Samsung Galaxy phone under seizure mahazer Ex.P7 and Ex.P8 (M.Os.4,5,6 & 9) in the presence of P.W.11, who is the Village Administrative Officer. Based on the confession given by A1, the other accused persons were also arrested and based on their confession the material objects were seized in the following manner:
Sl. Rank Date of Seizure Material Objects No. of arrest Mahazer the accused
1. A2 29.04.2013 Exs.P.23, Aruval (M.O.1), Cellphone Ex.P.32, (M.O.16), Ex.P.9 TATA Sumo Car (M.O.8) &Ex.P.10 and Cash Rs.3,90 ,000/-
2. A3 30.04.2013 Ex.P.14 & Two wheeler bike (M.O. Ex.P.21 11), knife (M.O.2) and gold ornaments (M.O.12 to M.O.15) and cash Rs.1,50,000/-.
3. A4 29.04.2013 Ex.P.10 & TATA Sumo Car (M.O.8) Ex.P.31 and Cash Rs.45,000/-
4. A5 30.04.2013 Ex.P.17, Auto (M.O.10) and Cash Ex.P.24 & Rs.27,500./-
Ex.P.36
5. A6 01.05.2013 Ex.P.28 & Nokia Phone (M.O.18) and Ex.P.40 cash Rs.5,000/-
6. A7 01.05.2013 Ex.P.27 & Nokia Phone (M.O.17) and Ex.P.38 cash Rs.5,000/-
The entire cash that was recovered from A1 to A7 was a total sum of Rs.11,37,500/- and it was marked as M.O.7. http://www.judis.nic.in 9/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 (3.2) The investigating officer, thereafter sent all the material objects recovered under Form 95 (Ex.P.42) and filed an alteration report (Ex.P.41) on 29.04.2013. He made arrangements for a Test Identification Parade at the Central Prison, Madurai, and sought for permission of the concerned Court and Judicial Magistrate No.III, Madurai, was designated with respect of conducting the Test Identification Parade and it was conducted on 07.05.2013. After the completion of the investigation, a final report came to be filed against all the seven accused persons before the learned Judicial Magistrate No.I, Madurai, and the same was taken on file in PRC.No.34 of 2013.
(3.3) The case was committed to the file of the IV-Additional District and Sessions Judge, Madurai, and the following charges were framed against the accused persons:
Charges Rank of Offence for which charges framed the Accused 1st Charge A1 to A7 Section 120 (b) r/w Section 364 of IPC 2nd Charge A1 and A6 Section 341 r/w 34 of IPC. 3rd Charge A1 to A7 Section 364(A) r/w 148 r/w 149 of IPC. http://www.judis.nic.in 10/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 4th Charge A1 to A7 Section 386 r/w 149 IPC. 5th Charge A1 to A7 Section 395 r/w 149 IPC. 6th Charge A1 to A7 Section 506(ii) r/w 149 IPC.
4. The prosecution examined P.W.1 to P.W.19 and marked Ex.P1 to Ex.P.42 and M.O.1 to M.O.18. The defence (A3) examined D.W.1 and marked Ex.D.1 to Ex.D.10. The evidence of the defence and the exhibits marked confined itself to the return of property, which were marked as M.O.12 to M.O.15.
5. The trial Court questioned the accused persons under Section 313 (1)(b) of Cr.P.C., by putting all the incriminating materials before them, collected during the course of trial and they denied the same as false.
6. The trial Court, on consideration of the facts and circumstances of the case and after analysing the oral and documentary evidence, came to a conclusion that the prosecution has proved the case beyond reasonable doubts and proceeded to convict and sentence the accused persons in the manner stated supra.
http://www.judis.nic.in 11/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 Submissions:
7. Mr.M.Karunanithi, learned counsel appearing on behalf of the appellant/A1 in Crl.A.(MD).No.49 of 2018 made the following submissions:
➢ A1 is well known to both P.W.1 and P.W.2 and according to the prosecution, A1 and A6 had intercepted P.W.1 and A1 and A3 had taken away the bag containing money from P.W.2. Before giving the compliant, there was a discussion between P.W.1 and P.W.2, about the incident and they specifically spoke about the involvement of A1. However, in the complaint, neither the name of A1 nor the fact that A1 is a known person, has not been mentioned and therefore, A1 has been roped in later, as an after thought without any basis.
➢ A1 was arrested on 29.04.2013 by P.W.19 and till the date of arrest, no witnesses spoke about the involvement of A1 in this case. The 161 statements of P.W.1 and P.W.2, where there is a mention about the involvement of A1, is said to have been recorded on 20.04.2013, but however, it reached the Court only on http://www.judis.nic.in 12/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 29.04.2013.
➢ Even in the alteration report that was filed by P.W.19, on 29.04.2013, after the arrest of A1, P.W.19 speaks about the statement recorded from P.W.1 and P.W.2, which also reached the Court on 29.04.2013. ➢ P.W.1 was let free on 19.04.2013 at about 5.00 a.m. However, the complaint came to be lodged only on 20.04.2013, at about 8.15 p.m., after 39 hours. It reached the Judicial Magistrate Court only on 23.04.2013 at about 10.30 a.m., with a delay of two days and 21 hours and there is absolutely no explanation for the delay.
➢ All the material documents including the statement recorded from P.W.1 and P.W.2, which is said to have been made ready on 20.04.2013, has reached the Court only on 29.04.2013, and there is absolutely no explanation for the delay and the same is fatal to the case of the prosecution.
8. In order to substantiate this submission, the learned http://www.judis.nic.in 13/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 counsel appearing for A1 relied upon the following Judgments:
(a) Johny and five others v. State, reported in 1990 LW Cri 175,
(b) Ayyadurai and Others v. State, rep. by Deputy Superintendent of Police, reported in 2008 (3) MLJ (cri) 257,
(c) D.Thamodaran v. Kandasamy and another, reported in 2017 (1) SCC (Cri) 414.
➢ The very recovery from A1 is highly doubtful. As per the prosecution, the laptop and the mobile phone was recovered from the accused in Winset Red Colour Rexin Bag. However, P.W.2 states that she brought the money only in a bag with a wooden handle and infact, Winset bag is very much available in her house and was not given to the police. Therefore, the articles recovered from the bag becomes highly doubtful. The bag with wooden handle was not recovered in this case and therefore, the money that is said to have been brought in this bag by P.W.2 also becomes doubtful. ➢ The place of occurrence in this case is highly doubtful. The first place of occurrence is near Pandiyarjan http://www.judis.nic.in 14/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 Hospital. The bag with money was snatched from P.W.2 near Muthoot Finance at Kamarajar Salai and ultimately, the victim P.W.1 was let off near Chittampatti. The investigating officer has not conducted any investigation and prepared any observation mahazer and rough sketch regarding the Muthoot Finance and Velalipatti. Even in the observation mahazer regarding the first place of occurrence, it has been shown as the place in front of Raja Dhanalakshmi School, which was not even mentioned in the complaint. Both in the observation mahazer and rough sketch, Pandiarajan Hospital is not found and the place was not even identified by P.W.1 to the investigating officer.
➢ P.W.2 has stated that P.W.1 was let free on 20.04.2013 and she met him in the relative's house on the same day and thereafter, she wrote the complaint before the police on 21.04.2013 and it was given at 8.15 p.m. This version goes completely against the version of P.W.1, who specifically says that the complaint was written by P.W.1 and it was given by him.
http://www.judis.nic.in 15/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 ➢ It is the clear evidence of P.W.1 that he was called to the police station and all the accused persons were shown to him by the police. This clearly makes the identity of the accused in the Test Identification Parade nugatory.
➢ The main witnesses in this case namely, P.W.1 has not specifically identified the accused persons in the Court and no question has been put by the prosecution in this regard.
➢ The telephone calls that is said to have taken place between P.W.1 and P.W.2, when P.W.1 was under the control of the accused persons, has not been investigated and therefore, the so called telephone calls made between P.W.1 and P.W.2, itself becomes doubtful.
9. The learned counsel appearing on behalf of the other appellants adopted the arguments of Mr.M.Karunanithi, with regard to the common grounds raised by him and they made their submissions confining to the respective appellants. http://www.judis.nic.in 16/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018
10. Mr.M.Jagadeesha Pandian, learned counsel appearing on behalf of A2 in Crl.A.(MD).No.175 of 2018 made the following submissions:
➢ A2 was arrested on 30.04.2013, based on the confession of A1. He has been roped in this case on the ground that he accompanied the other accused persons in the TATA Sumo car, when P.W.1 was kidnapped, and he showed Aruval and threatened P.W.1. ➢ The so called recovery has not been proved, since both the witnesses P.W.13 and P.W.14 have turned hostile. ➢ There was a delay in conducting the Test Identification Parade on 07.05.2013 and already P.W.1 was shown all the accused persons in the police station and therefore, the so called Test Identification Parade become meaningless. To substantiate his submissions, he relied upon the Judgment of the Hon'ble Supreme Court in Md.Sajjad alias Raju alias Salim v. State of West Bengal, reported in 2017 (3) SCC (Cri) 899. http://www.judis.nic.in 17/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018
11. Mr.S.M.Rajaraman, learned counsel appearing on behalf of A3 in Crl.A.(MD).No.367 of 2017 made the following submissions:
➢ A3 is said to have been present in the TATA Sumo car when P.W1 was kidnapped and he went along with A1 in an auto driven by A5 and the bag containing money was grabbed from P.W.2. ➢ A3 was arrested on 30.04.2014 and the recoveries were made. The recovery has not been supported by the witnesses P.W.13 and P.W.14.
➢ The Court has categorically found that the jewels (M.O.12 to M.O.15) belonged to A3 and had directed the same to be returned to D.W.1, who was the wife of A3 and that by itself shows that A3 has been falsely implicated in this case.
12. Mr.J.Lawrance, learned counsel appearing for A4 in Crl.A.(MD).No.391 of 2017 made the following submissions:
➢ This accused was roped in based on the confession of A1 and he was arrested on 29.04.2013 and http://www.judis.nic.in 18/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 material object was recovered and the witness, who was examined did not support both the arrest and recovery and therefore, the so called recovery becomes doubtful.
➢ This accused person has been roped in only on the ground that he is the owner of the vehicle and none of the witnesses speak about any overtact against A4 and he has been falsely implicated in this case.
13. Mr.K.Navaneetha Raja, learned counsel appearing on behalf of A5 in Crl.A.(MD).No.404 of 2017 made the following submissions:
➢ The arrest of this accused, confession and recovery has not been supported by the witnesses P.W.13 and P.W.14.
➢ The overtact attributed is that he came to the scene of crime along with A3 and A7, in a two wheeler and he accompanied the other accused persons in the TATA Sumo car, in which P.W.1 was kidnapped. He is also said to have intimidated P.W.1 by showing the knife and placing it on the chest of P.W.1 and the auto was driven http://www.judis.nic.in 19/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 by him by taking A1 and A3 along with him and the bag containing money was snatched from P.W.2. ➢ Except for the identification in the Test Identification Parade, which itself is highly doubtful, no one else has identified A5 in this case.
14. Mr.R.Manickaraj, learned counsel appearing for A6 in Crl.A.(MD).No.440 of 2017 made the following submissions:
➢ This accused was roped in based on the confession of A1 and the overtact attributed against him is that he went along with A1 and intercepted P.W.1 and thereafter, P.W.1 was pushed inside the TATA Sumo car in which he was kidnapped.
➢ A6 was arrested on 01.05.2013, and the material objects were recovered as per the prosecution. However, the witnesses, P.W.15 and P.W.16 turned hostile and therefore, the very recovery itself becomes doubtful.
http://www.judis.nic.in 20/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 ➢ P.W.4 and P.W.6 could not have witnessed the incident, since if really P.W.1 had kept the bike in the scene of occurrence before he was kidnapped, they would have taken the bike and they will not abandon the bike. ➢ P.W.4 says that he went to the house of P.W.2 at about 10.40 p.m., and P.W.6 says that he went to the house of P.W.2 at about 11.00 p.m. However, P.W.2 states that P.W.4 and P.W.6 informed about the kidnapping incident over phone only between 11.00 p.m. And 12.00 p.m. Therefore, there is a contradiction.
15. Mr.A.K.Alagarasamy, learned counsel appearing on behalf of A7 in Crl.A.(MD).No.400 of 2017 made the following submissions:
➢ P.Ws.2, 4, 5 and 6 have not spoken about the involvement of A7 in this case and he was roped in as an accused only based on the confession of A1. ➢ This accused was arrested on 01.05.2013 and material objects were recovered, according to the prosecution. However, the witnesses P.W.15 and http://www.judis.nic.in 21/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 P.W.16 did not support the case of the prosecution and therefore, the recovery itself becomes doubtful. ➢ A7 was not even identified in the Court and the identity of this accused person in the Test Identification Parade itself is highly doubtful. ➢ No overtact has been attributed against A7 except that he came in the two wheeler along with A3 and A5 and he was also present in the TATA Sumo car, in which P.W.1 was kidnapped, along with the other accused persons.
16. Per contra, Mr.S.Chandrasekar, learned Additional Public Prosecutor, appearing on behalf of the State made the following submissions:
➢ P.W.1, who is the victim was kidnapped on 18.04.2013, at about 10.00 p.m., and he was kept as a hostage till 19.04.2013, at about 5.00 a.m., and during this entire period, P.W.1 had seen all the accused persons in the car, in which he was kidnapped and the accused persons were also identified by him, before the trial Court and therefore, the identity of the accused persons http://www.judis.nic.in 22/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 has been sufficiently established by the evidence of P.W.1 and no more proof is required insofar as the identity of the accused are concerned. Therefore, even if the Test Identification Parade is held to be not reliable, the identification of the accused persons with whom P.W.1 had spent sufficient time, when he was kidnapped, before the Court becomes a clinching factor.
➢ After the wife(PW2) of P.W.1 was informed to bring a sum of Rs.15,00,000/- in a bag and when she was returning to Muthoot Finance, A1 and A3 had approached her and snatched the bag and it was taken in an auto. Both these accused persons were identified by P.W.2 before the Court.
➢ The victim, namely, P.W.1 was continuously kept under threat and there was a lot of fear in the minds of both P.W.1 and P.W.2 and that is why P.W.1 went to the relative's house, after he was let off and P.W.2 met him in the relative's house and only after deliberation, the compliant was given on 20.04.2013 and therefore, the delay in lodging the complaint was sufficiently http://www.judis.nic.in 23/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 explained by P.W.1 and P.W.2.
➢ The non-mentioning of the name of A1 in the compliant is not fatal to the case of the prosecution, since both P.W.1 and P.W.2 were not able to recall the name of A1, immediately, and there was a lot of fear, when the complaint was given on 20.04.2013.
➢ It was A1, who had planned the entire incident and he had worked as a carpenter in the house and office of P.W.1, ten months prior to the incident. It was only after his confession, the other accused persons were traced and arrested and properties were recovered. All these accused persons were identified by P.W.1. There is absolutely no prior enmity or ill-will to rope in these accused persons by P.W.1 and they were actually involved in the offence as spoken to by P.W.1 and P.W.2.
➢ In fact, P.W.1 was reminded only by his wife P.W.2 that A1 had done carpentry work in the house and office of P.W.1, ten months prior to the incident and it is only thereafter, P.W.1 recollected the face of A1 and http://www.judis.nic.in 24/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 therefore, it is very natural that the name of A1 was not shown in the compliant.
➢ Eventhough the learned counsel for the appellants have pointed out certain contradictions and embellishments in the evidence of P.W.1 and P.W.2, the same does not in any way discredit their evidence.
➢ It is true that the investigation was not effectively conducted and the investigating officer could have conducted the investigation more effectively, by collecting the CDR details for the phone calls between P.W.1 and P.W.2 and also could have made an observation mahazer and rough sketch for the Muthoot Finance at Kamarajar Salai and Velalipatti village, where P.W.1 was kept during the night as hostage by the accused persons. However, this lapse on the part of the investigating officer cannot per se be a ground to entirely throw out the case of the prosecution. When there is sufficient evidence available by way of the evidence of P.W.1 and P.W.2, P.W.4 to P.W.6 and the recovery of the material objects from the accused persons after their arrest.
http://www.judis.nic.in 25/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 ➢ The mere fact that P.W.4 and P.W.6, who were working for P.W.1 did not take any steps to prevent the incident and rescue P.W.1, cannot put against the prosecution, since the incident happened all of a sudden and there was fear in their minds.
➢ Unfortunately, in this case, many of the independent witnesses turned hostile, and that by itself will not make the arrest and recovery illegal.
➢ It is true that there is some delay in the FIR reaching the Court and the statements reaching the Court and that by itself is not a ground to throw out the case of the prosecution, if the material fact has been sufficiently proved by the prosecution. ➢ The Court below has taken into consideration the entire facts and circumstances of the case and the totality of the evidence available on record and has come to the correct conclusion that the prosecution has proved its case beyond reasonable doubt and there is http://www.judis.nic.in 26/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 absolutely no ground to interfere with the judgment of the trial Court. This Court must also take into consideration, the seriousness of the crime in this case. Discussion:
17. This is a case, where serious charges of kidnapping for ransom, extortion by putting a person in fear of death and dacoity, apart from other minor offences, has been slapped against the accused persons. The real victim in this case is P.W.1 and therefore, his evidence regarding the incident assumes a lot of significance. Apart from the evidence of P.W.1, the evidence of P.W.2 also is of great importance, since she was made to bring money by the accused persons through P.W.1 and a sum of Rs.15,00,000/- (Rupees fifteen lakhs only) is said to have been grabbed from her by two of the accused persons. If this Court is substantially satisfied with the evidence of these two witnesses, the evidence of P.Ws.4, 5 and 6 can be considered in order to support/corroborate the evidence of P.W.1 and P.W.2. Once the evidence of all these witnesses, inspires the confidence of this Court, the arrest and recovery done by the prosecution from each of the accused persons will further lend support to the case of the prosecution, eventhough, almost all witnesses concerning arrest http://www.judis.nic.in 27/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 and recovery have turned hostile.
18. The offence under Section 364 (A) of IPC was introduced by way of amendment (Amendment Act 42 of 1993), providing for a severe punishment. This amendment was brought in, in order to curb kidnapping and abduction for ransom, which was becoming rampant. In order to constitute the offence under Section 364(A), the prosecution must prove the following ingredients:
(a) the accused must have kidnapped, abducted or detained any person,
(b) the accused must have kept such a person under custody or detention,
(c) kidnapping, abduction or detention must have been for ransom.
19. The offence under Sections 386 and 395 of IPC has been added as a charge against all the accused persons, since apart from the ransom that was demanded in this case, the victim was also put on fear of death and an extortion has also been made by inducing the victim to deliver his movable properties, such as laptop, mobile phone, etc. The charge under Section 395 of IPC has also been added in this case, since seven accused persons have http://www.judis.nic.in 28/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 conjointly committed the offence of robbery as defined under Section 390 of IPC.
20. At the outset, we must express our displeasure and unhappiness regarding the quality of investigation that has been conducted in this case. The number of defects that have been pointed out by the learned counsel appearing on behalf of the appellants had given us some anxious moments. When the investigating officer, who was present before the Court, was questioned as to why he did not collect the CDR entries from the service provider in order to substantiate the phone calls that happened between P.W.1 and P.W.2, during the time, when P.W.1 was kept as a hostage by the accused persons, some evasive answers were given and we found that he did not even make any efforts to collect the phone call details. This would have helped the prosecution to substantially prove the case against the accused persons. We also asked the investigating officer as to who took the express FIR to the Court and why there was a delay of nearly two days and 21 hours in the FIR reaching the Court and no answer was forthcoming. Eventhough, he stated that the name of the person, who took the FIR to the Court will be available in the general diary, that was also not produced. We further asked the investigating officer, as to why he did not visit the spot, namely, http://www.judis.nic.in 29/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 Muthoot Finance at Kamarajar Salai and Velalipatti village, where P.W.1 was kept during the night between 18.04.2013 and 19.04.2013 and prepared the observation mahazer and rough sketch and as expected, he only gave an evasive answer.
21. One more important aspect about which we questioned the investigating officer is with regard to a substantial delay in the material documents, namely, the statements recorded from P.W.1 and P.W.2 and also the complaint and the alteration report reaching the Court only on 29.04.2013. We also brought to the notice of the investigating officer, the judgments of this Court giving guidelines to the investigating agency in Johny and five others v. State, reported in 1990 LW (Crl.)175, wherein this Court has held as follows:
“This Court in Karunakaran Japamani Nadar, in re.(1974 L.W. (Crl) 190) observed as follows:
“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 http://www.judis.nic.in 30/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 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, nothing therein the time and date of the receipt of these documents. This would provide the only judicial safeguard against subsequent fabrication of such documents 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 Cr.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. http://www.judis.nic.in 31/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018
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 course of the investigation.
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.” This view was reiterated by Ratnavel Pandian, J. as he then was in K.Vadivelu and other in re,(1976 L.W.(Crl.) 115). In this http://www.judis.nic.in 32/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 case, the learned Judge has made a reference to the Tamil Nadu Police Standing Order 577 dealing with despatch of express reports to be made in the quickest way possible either by post or hand in all cases of murder, culpable homicide etc. It will be relevant to remember at this stage the following observation of the Supreme Court in Thuliak Ali v. State of Tamil Nadu(AIR 1973 SC 501).
“ On account of delay the report not only gets bereft of advantage of spantaneity danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consideration. It is, therefore essential that the delay in the lodging of the first information report should be satisfactorily explained.” The investigating officer was not able to give any satisfactory reply for this question also.
22. It is in this back ground, we have to consider the evidence of P.W.1, P.W.2, P.W.4 to P.W.6, P.W.10, P.W.11, P.W.18 http://www.judis.nic.in 33/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 and P.W.19. In a case involving such a serious crime, where the prosecution has done a perfunctory and designedly defective investigation, this Court has to be cautious and ensure that despite such defective investigation, the determinative process is not subverted. It is the duty of this Court to find out the truth. The Court cannot be a mute spectator, particularly, in criminal cases and it cannot shun its primary duty of finding out the truth from the materials on record. In this case, we have to necessarily go through this process of finding out truth in view of the defective investigation that has been conducted by the Inspector of Police (P.W.19).
23. It will be relevant to take note of the following judgments of the Hon'ble Supreme Court in this regard, before we delve into the evidence of the witnesses in this case.
(a) “In Karnel Singh v. State of M.P., (1995) 5 SCC 518, the Supreme Court considered the effect of defective investigations vis a vis the evidence presented by the prosecution and opined as under:
“5. Notwithstanding our unhappiness regarding the nature of investigation, we have to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. In cases of defective investigation the court has to be http://www.judis.nic.in 34/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. Any investigating officer, in fairness to the prosecutrix as well as the accused, would have recorded the statements of the two witnesses and would have drawn up a proper seizure-memo in regard to the ‘chaddi’. That is the reason why we have said that the investigation was slipshod and defective.
6. We must admit that the defective investigation gave us some anxious moments and we were at first blush inclined to think that the accused was prejudiced. But on closer scrutiny we have reason to think that the loopholes in the investigation were left to help the accused at the cost of the poor prosecutrix, a labourer. To acquit solely on that ground would be adding insult to injury.
(b) In Ram Bihari Yadav v. State of Bihar, (1998) 4 SCC 517, the Supreme Court reiterated the aforesaid approach in the following passage:
“13. Before parting with this case we consider it appropriate to observe that though the prosecution has to prove the case against the accused in the manner stated by it and that any act or omission on the part of the prosecution giving rise to any reasonable doubt would go in http://www.judis.nic.in 35/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 favour of the accused, yet in a case like the present one where the record shows that investigating officers created a mess by bringing on record Exh. 5/4 and GD Entry 517 and have exhibited remiss and/or deliberately omitted to do what they ought to have done to bail out the appellant who was a member of the police force or for any extraneous reason, the interest of justice demands that such acts or omissions of the officers of the prosecution should not be taken in favour of the accused, for that would amount to giving premium for the wrongs of the prosecution designedly committed to favour the appellant. In such cases, the story of the prosecution will have to be examined dehors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law-enforcing agency but also in the administration of justice”
(c) In State of Karnataka v. K. Yarappa Reddy, (1999) 8 SCC 715, K.T Thomas, J summed up the legal position as under:
“19. But can the above finding (that the station house diary is not genuine) have any inevitable bearing on the other evidence in this case? If the other evidence, on http://www.judis.nic.in 36/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 scrutiny, is found credible and acceptable, should the Court be influenced by the machinations demonstrated by the investigating officer in conducting investigation or in preparing the records so unscrupulously? It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation. It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinized independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case.
(d) In State of H.P. v. Lekh Raj, (2000) 1 SCC 247, the Supreme Court strongly disapproved the approach of discrediting the prosecution story on the basis of a defective investigation and held as under:
“10.…..The criminal trial cannot be equated with a http://www.judis.nic.in 37/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 mock scene from a stunt film. The legal trial is conducted to ascertain the guilt or innocence of the accused arraigned. In arriving at a conclusion about the truth, the courts are required to adopt a rational approach and judge the evidence by its intrinsic worth and the animus of the witnesses. The hypertechnicalities or figment of imagination should not be allowed to divest the court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstance keeping in view the peculiar facts of each case, the social position of the victim and the accused, the larger interests of the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The realities of life have to be kept in mind while appreciating the evidence for arriving at the truth. The courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial. Criminal jurisprudence cannot be considered to be a utopian thought but have to be considered as part and parcel of the human civilization and the realities of life. The courts cannot ignore the erosion in values of life which are a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting society and mankind.
http://www.judis.nic.in 38/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018
(e) In Dayal Singh v. State of Uttaranchal, (2012) 8 SCC 263, the Supreme Court extensively surveyed its previous jurisprudence on this point and observed as follows:
“30. With the passage of time, the law also developed and the dictum of the Court emphasised that in a criminal case, the fate of proceedings cannot always be left entirely in the hands of the parties. Crime is a public wrong, in breach and violation of public rights and duties, which affects the community as a whole and is harmful to the society in general.
34. Where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the Judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the Court is to be http://www.judis.nic.in 39/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 deeply cautious and ensure that despite such an attempt, the determinative process is not subverted. For truly attaining this object of a “fair trial”, the Court should leave no stone unturned to do justice and protect the interest of the society as well.”
(f) The aforesaid view has also found the acceptance of a three judge bench in Hema v. State, (2013) 10 SCC 192, wherein it was held as under:
18. It is clear that merely because of some defect in the investigation, lapse on the part of the investigating officer, it cannot be a ground for acquittal. Further, even if there had been negligence on the part of the investigating agency or omissions, etc. it is the obligation on the part of the court to scrutinise the prosecution evidence dehors such lapses to find out whether the said evidence is reliable or not and whether such lapses affect the object of finding out the truth.”
(g) In State of Karnataka v. Suvarnamma, (2015) 1 SCC 323, the Court once again reiterated that the primary duty of the Court was to arrive at the truth uninfluenced by blemishes on the part of the investigation. The Court observed as under:
“11. It is also well settled that though the investigating http://www.judis.nic.in 40/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 agency is expected to be fair and efficient, any lapse on its part cannot per se be a ground to throw out the prosecution case when there is overwhelming evidence to prove the offence.
14. Does the alleged suppression or unfair conduct of the investigating agency absolve the court of its duty to find out the truth? Though we are governed by the adversarial system, the court cannot be a mute spectator, particularly in criminal cases and shun its primary duty of finding out the truth from the material on record.”
24. The star witness in this case is P.W.1, who was kidnapped by the accused persons. He has deposed in his chief- examination that he has identified all the accused persons. The relevant portions are extracted:
“M$h; vjphpfisj; bjhpa[k;/ ,U rf;fu thfdj;jpy; te;jth;fs;
jw;nghJ ePjpkd;wj;jpy; epw;gth;fspy; 1k; vjphp rrpf;Fkhh; kw;Wk; 6k; vjphp mUz;fz;Qq lhl;lh Rnkhtpy; te;jth;fs; kPjKs;s 5 vjphpfs; vd;id fhhpy; gLf;f itj;J bfhz;L fhUf;Fs; itj;J 3k; vjphpa[k; 5k; vjphpa[k; fj;jpia vd; be";rpy; itj;J rj;jk;
nghlf;TlhJ vd kpul;odhh;fs;/ Rkhh;
http://www.judis.nic.in 41/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 xd;wiu kzp neuk; fhhpnyna Tl;o brd;wdh;/ gpd;g[ xU ,lj;jpy; vd;id ,wf;fptpl;L vd; fz;fis Jzpahy; fl;o xU fl;lhe;jiuapy;
rpwpa rpwpa ghiw nghd;w fy;ypy; cl;fhu
itj;jdh;/
nghyprhh; vd;id tprhhpj;J kJiu
kj;jpa rpiwr;rhiyf;F miHj;Jr;
brd;whh;fs;/ vd;id flj;jp brd;W gzk;
gwpj;j M$h; vjphpfis ePjpgjp
Kd;g[ milahsk; fhl;ondd;/
lhl;lh Rnkh fhhpy; vjphpfs; g[c&;guh$;.
oiuth; fnzrd;. Kdpuh$;. Ml;nlh Kj;J kw;Wk; xU fnzrd; Mfpnahh;fs; ,Ue;jhh;fs;/ g[c&;guh$; fhhpy; Kd;gFjpapy; oiuth; mUfpy; mkh;e;jpUe;jhh;/ tz;oia oiuth; fnzrd; Xl;o te;jhh;/ ,d;bdhU fnzrd; vdf;F gpd; gFjp ,Uf;ifapy; mkh;e;jpUe;jhh;/ ehd;
tz;oapy; nghFk; nghJ v';nf vd;id Tg;gpl;L nghfpwPh;fs; vd;W nfl;nld;/ Kdpuh$;.
Ml;nlh Kj;Jt[k; vd;id ,Uf;iff;F fPH;
jiuapy; gLf;f itj;J vd; be";rpy;
fj;jpia itj;J fj;jpdhy; Fj;Jntd; vd
kpul;odhh;fs;/ g[c&;guh$; mUths; ifapy;
itj;jpUe;jhh;/
http://www.judis.nic.in
42/90
Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 M$h; vjphpfspd; bgah;. tpyhrk; gw;wp vdf;F nehpilahf bjhpahJ vd;whYk;
nghyPrhh; brhy;yp jhd; vdf;F bjhpa[k; vd;why;
vjphp rrpFkhiu rk;gtj;jpw;F Kd; vdf;F
bjhpa[k;/ kw;w vjphpfs; gw;wp vdf;F
rpiwr;rhiyapy; itj;J milahsk; fhl;oa
gpd; bjhpa[k;/
vjphpfis fhty; epiyaj;jpy; itj;J
vd;dplk; fhl;ltpy;iy/ b$apypy; itj;J jhd;
ghh;j;njd;/
vjphpfspd; ju thpir gw;pw
ePjpkd;wj;jpw;F te;j gpd; jhd; bjhpa[k;/ me;j ju thpirapd;gojhd; ehd; rhl;rp brhd;ndd;/”
25. It was the contention put forth by the learned counsel appearing on behalf of the appellants that a specific question has not been put before the trial Court regarding the identity of the accused persons by P.W.1 before the Court. The above extracted portions from the evidence of P.W.1 clearly shows that this requirement has been substantially fulfilled and P.W.1 has identified all the accused persons in the Court.
26. The learned counsel appearing for the appellants brought to the notice of this Court one specific statement that was http://www.judis.nic.in 43/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 made by the victim P.W.1 and it is extracted hereunder:
“nghyPrhh; vjphpfis xt;bthUtuhf
ifJ bra;j nghJk; ifJ bra;ag;gl;l
tptu';fs; vdf;F bjhpa te;jJ/ mt;thW
bjhpa te;j gpd; ehd; fhty; epiyak; brd;W ghh;j;njd;/ ehd; ghh;j;j nghJ nghyPrhh; ,th;fs;jhd; rk;gtj;jpy; <Lgl;ljhf vd;dplk; milahsk; fhl;odhh;fs; vd;why; rhpjhd;/”
27. By pointing to this statement made by P.W.1, it was impressed upon before this Court that P.W.1 was shown all the accused persons in the police station itself and therefore, the subsequent Test Identification Parade and identity of the accused persons become meaningless.
28. Before dealing with this contention, it is also important to extract the statement made by P.W.1 in the cross examination on the very same aspect.
“M$h; vjphpfspd; bgah;. tpyhrk; gw;wp
vdf;F nehpilahf bjhpahJ vd;whYk;
nghyPrhh; brhy;yp jhd; vdf;F bjhpa[k; vd;why; vjphp rrpFkhiu rk;gtj;jpw;F Kd; vdf;F http://www.judis.nic.in 44/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 bjhpa[k;/ kw;w vjphpfs; gw;wp vdf;F rpiwr;rhiyapy; itj;J milahsk; fhl;oa gpd; bjhpa[k;/ vjphpfis fhty; epiyaj;jpy; itj;J vd;dplk; fhl;ltpy;iy/ b$apypy; itj;J jhd; ghh;j;njd;/”
29. These statements were also made in the cross examination. In order to understand the evidence of P.W.1, it is important to read the entire evidence and not to pick and choose one or two sentences and jump to a conclusion. The over all reading of the evidence of P.W.1 shows that he identified all the accused persons in the Court. The identity of the accused persons in the Test Identification Parade is only a relevant fact under Section 9 of the Indian Evidence Act, 1872, and it is not a substantive piece of evidence. Therefore, even taking the extreme case of discarding the entire Test Identification Parade, it can be safely concluded that P.W.1 had identified all the accused persons in the Court.
30. There is yet another angle of looking at this issue. P.W.1 was intercepted by A1 and A6 and thereafter, he was pushed into TATA Sumo car. He was with all the accused persons from http://www.judis.nic.in 45/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 about 10.15 p.m., on 18.04.2013 upto almost 5.00 a.m., on 19.04.2013. The accused persons and P.W.1 were travelling in a TATA Sumo car and therefore, P.W.1 had seen all the accused persons in close proximity for several hours. Therefore, it is natural that P.W.1 was able to identify the accused persons in the Court. It is also established that A1 was already known to P.W.1, since he had done carpentry work in the house and office of P.W.1, ten months prior to the incident. This was recalled to him by his wife P.W.2, when they met on 19.04.2013, at the relative's house. It is an admitted case that only based on the confession of A1, all the other accused persons were arrested and recovery was effected. Therefore, insofar as A2 to A7 are concerned, P.W.1 saw them for the first time only inside the TATA Sumo car. Thereafter, he identified them during the Test Identification Parade and thereafter, before the Court. In view of the same, there is absolutely no doubt in the mind of this Court that P.W.1 has clearly identified all the accused persons in this case and there was no prior animosity between the parties in order for P.W.1 to falsely rope in the accused persons. Insofar as the identity of the accused persons, it will also be important to take note of the evidence of the wife (P.W.2) of P.W.1. The relevant portion is extracted hereunder:
““tPl;ow;F te;J gPnuhtpy; ,Ue;j gzk;
U:/15 yl;rj;ij fl;il ifgpoa[s;s Jzp igapy; http://www.judis.nic.in 46/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 itj;J bfhz;L ehDk; kfhbyl;r[kpa[k;
jpUk;gt[k; Kj;Jl; igdhd;!; mUfpy; nghndhk;/ ehd; nuhl;il fle;j brd;nwd/ mg;nghJ xU Ml;nlh te;jJ/ Ml;nlhtpypUe;J xUth; ,w';fp vd; ifapypUe;j igia gpL';fp bfhz;lhh;/ fpHf;F g[wj;jpypUe;J Ml;nlhtpy; te;jth;fs; nkw;F gf;fkhf brd;wdh;/ Ml;nlhtpy; 2 egh;fs; te;jdh;/ xUth; Xl;o te;jhh;/ gpd;dhy; mkh;e;J te;jth; vd;dplkpUe;J igia gwpj;J bfhz;lhh;/ Ml;nlhtpd; Kd;dhy; knf!;thp vd vGjg;gl;oUe;jJ/ Ml;nlh vz; 4822/ me;j Ml;nlhit ghh;j;jhy; milahsk; brhy;ntd;/ vd;dplkpUe;J gzk; gwpj;jth; vdf;F milahsk; bjhpa[k;/ mth; ,d;W ePjpkd;wj;jpy;
M$uhfpa[s;shh;/ (rhl;rp 1k; vjphpia rrpFkhiu
milahsk; fhl;Lfpwhh;) Ml;nlhit Xl;o te;j
egiu vdf;F Xust[f;F milahsk; fhl;l
Koa[k;/ (rhl;rp 3k; vjphp Kdpuhir milahsk;
fhl;oa[s;shh;/ gpd;g[ 6k; vjphp mUz;fz;
vd;gtiu milahsk; fhl;Lfpwhh;/ ,UtUk; xnu rhaypy; ,Ug;gjhy; rhl;rp rw;W FHk;gp gpd;g[ Ml;nlh Xl;o te;jth; rw;W bts;isahf ,Ug;gjhf brhy;yp 3k; vjphp Kdpuhir milahsk; fhl;Lfpwhh;)/ mjd; gpd; http://www.judis.nic.in 47/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 ehd; tPl;ow;F te;J tpl;nld;/ 1k; vjphp rrpf;Fkhh; v';fs; kfhypy; jr;R ntiy bra;jjhf brhy;ypa[s;nsd;/ 1k; vjphp v';fsplk; rk;gtj;jpw;F Kd; 1 tUlj;jpw;Fs;
jr;R ntiy ghh;j;jhh;/ mof;fo ntiyfs;
ele;J bfhz;oUf;Fk;/”
31. It is clear from the evidence of P.W.2 that she has also specifically identified A1 and A3 in this case. This can be used to corroborate the evidence of P.W.1, insofar as the identification of the accused persons are concerned.
32. In view of the above discussion, we are of the firm view that the accused persons have been clearly identified by P.W.1 and P.W.2 in this case before the Court.
33. The next main contention that has been raised by the learned counsel appearing on behalf of the appellants is regarding the non-mentioning of the name of A1 in the complaint (Ex.P.1), if really P.Ws.1 and 2 knew A1 even before the incident. It is true that there is no mention about A1 in the complaint and also there is no mention in the complaint that any known person was http://www.judis.nic.in 48/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 involved in the incident. The entire complaint proceeds as if all the accused persons are unknown, but can be identified.
34. The victim P.W.1 was gripped with fear due to this incident and his wife P.W.2 was equally in fear. The fear factor was evident, since P.W.1 did not even want to return back to his home immediately, fearing the accused persons and he had gone to a relative's house and stayed there. He informed this to his wife P.W.2 and P.W.2 also meets him only in the relative's house. She goes and discusses about this incident with her husband and at that point of time, she informs her husband that A1, whom she had seen at the time when the bag containing money was grabbed from her, had done carpentry work in the house and office of P.W.1 and immediately, P.W.1 recalls. This discussion happens before the complaint was given. Inspite of the same, the name of A1 was not mentioned in the complaint since both the P.Ws.1 and 2 could not recall his name at that point of time. In the complaint, it was not mentioned that one known person is involved. This cannot be held to be a major discrepancy, since the situation that was prevailing at the time of giving the complaint was sheer anxiety due to the incident and it is possible that it slipped from the mind of both P.Ws.1 and 2 in mentioning about A1 in the complaint. After all, a complaint/FIR is not an encyclopedia of the entire case and it is http://www.judis.nic.in 49/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 only the starting stage, where the criminal law is set in motion.
35. The next important contention that has been raised by the learned counsel appearing on behalf of the appellants is regarding the delay in filing the complaint, delay in the FIR reaching the Court and the delay in the material documents reaching the Court.
36. It is not as if in every case, where there is a delay, the entire case of the prosecution has to be doubted and thrown out. The delay only puts the Court on guard in order to see, if there are deliberations and if the accused persons are being roped in at a later stage through such deliberations and whether the prosecution is trying to develop the case through such deliberation. There is no universal rule that wherever there is a delay, the Court has to ipso facto assume that such delay was intentionally made to suit the case of the prosecution and therefore, the veracity of the prosecution case must be doubted. The judgments that have been relied upon by the learned counsel for the appellants, dealing with the aspect of delay, was considered on the facts of the case on hand and held to be fatal. It is true that this Court had already given guidelines in Karunakaran Jabamani Nadar case, reported in 1974 LW (Cri) 190, regarding the importance of certain http://www.judis.nic.in 50/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 important documents reaching the Court at the earliest possible time. This was subsequently reiterated in the judgment in K.Vadivelu and others, reported in 1976 LW (Cri) 115. In many cases, these guidelines only remains in paper and it is not being strictly implemented, resulting in acquittals only on the ground of delay.
37. By virtue of this judgment, this Court reiterates the guidelines given in Karunakaran Jabamani Nadar case referred supra, and directs the police through out the State to strictly follow the guidelines. If any investigating officer or police officer registering the FIR, fails to comply with the guidelines and despatches the material documents with delay, without proper explanation, the same shall be construed as a misconduct and disciplinary proceedings shall be initiated against them for dereliction of duty. The investigation work must also not be allotted to such officers. Unless such stringent actions are taken, this Court is only going to see more acquittals only on the ground of delay. This attitude does not augur well to the Criminal Justice System and it will have a very serious impact on the society as such.
38. Coming back to the present case, it has to be seen, whether the delay by itself has in any way made the evidence of http://www.judis.nic.in 51/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 P.Ws.1 and 2 totally unbelievable. If the delay has such an effect in this case, then this Court has to disregard the evidence of P.Ws.1 and 2 and proceed further to decide the case in favour of the accused persons.
39. P.W.2 is the wife of P.W.1 and she has deposed that she got a call from her husband at around 2.00 a.m., on 19.04.2013, informing that there will be a bag near Muthoot Finance and that she will find the bureau key in the bag and he instructed her to take a sum of Rs.15 lakhs from the bureau and kept it in the bag and place the bag near the gate of Muthoot Finance at Kamarajar Salai. Based on this phone call, P.W.2 had taken a sum of Rs.15 lakhs in a bag and was going near Muthoot Finance and at that point of time, an auto (M.O.10) approached her and two persons came near her, whom she identified as A1 and A3 in the Court, and they snatched the bag from her and went from that place in the auto. She had further stated in her evidence that it was P.W.4 and P.W.6, who had informed her over phone about the abduction of P.W.1 by the accused persons in a TATA Sumo car. This evidence of P.W.2 has been corroborated by the evidence of P.W.4 and P.W.6, who are working under P.W.1 and they have specifically stated that they have seen P.W.1 being kidnapped in a TATA Sumo car and they have also informed P.W.2 regarding the http://www.judis.nic.in 52/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 same. The sister-in-law of P.W.2, namely, P.W.5 has stated in her evidence that P.W.2 informed her that they have to give money to some persons and she accompanied P.W.2 towards Muthoot Finance. Her evidence can be taken into account at least to corroborate the fact that P.W.1 was made to talk to P.W.2 right through till she took the bag with money to be kept near Muthoot Finance. Her evidence can also be relied upon to corroborate the evidence of P.W.2 that money was taken in the bag by P.W.2.
40. For better appreciation, the relevant portions of the evidence of P.W.2 is extracted hereunder:
“vd; fzth; M$h; vjphpfshy; flj;jg;gl;l bra;jp rk;gtj;jpd; ,ut[jhd; vdf;F bjhpa[k;/ vd; filapYk; kfhypYk; ntiy ghh;j;jth; bgah; fnzc&;/ ,d;bdhUth; fpUc&;zd;/ vd; fzth; flj;jg;gl;l tptuj;ij mth;fs; 18k; njjp md;W nghd; bra;jdh;. vj;jid kzpf;F nghd; bra;jhh;fs; vd;why; ,ut[ 11 Kjy; 12 kzpf;Fs; ,Uf;Fk;/ vd; fzth; vjphpfspd; gpoapy; ,Ug;gjhf vdf;F nghd; bra;jJ ,ut[ 1 kzpapUf;Fk;/ vd; fzth;
ez;gUld; ,Ug;gjhf vdf;F nghd; bra;j
nghJ vj;jid kzp ,Uf;Fk; vd;why;
fnzc&;Rk; fpUc&;zDk; nghd; bra;j gpd; ehd;
http://www.judis.nic.in 53/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 miHj;J ngrpndd;/ vdf;F neuk; rhpahf "hgfk; ,y;iy/ fnzrd;. fpUc&;zd; ,th;fs;
K:ykhf vd; fztiu flj;jpa tptuk; bjhpa
te;jJ/
ehDk; vd; bfhGe;jpahs;
kfhbyl;Rkpia[ak
[ ; miHj;J bfhz;L Kj;Jhl;
igdhd;!; nfl; K:oapUe;jJ nfl; mUfpYs;s
goapy; ,Ue;j ngf;if vLj;J bfhz;L
te;njhk;/ tPl;ow;F te;J gPnuhtpy; ,Ue;j gzk;
U:/15 yl;rj;ij fl;il if gpoa[s;s Jzp igapy; itj;J bfhz;L ehDk; kfhbyl;Rkpa[k;
jpUk;gt[k; Kj;Jhl; igdhd;!; mUfpy;
nghndhk;/”
41. The relevant portions of the evidence of P.W.5 is also extracted hereunder:
“$dhh;j;jddplk; rhe;jp ifngrpapy; ngrp bfhz;oUe;jhh;/ $dhh;j;jddplk; ifngrpapy; ngrpf;bfhz;nl rhe;jp fl;il igapy; gzj;ij vLj;J bfhz;L vd;id miHj;Jf; bfhz;L nghdhh;/ ehDk; mtUld; brd;nwd;/ mth; ifngrpapy; ngrp bfhz;nl Kj;Jhl; igdhd;!; cs;s nuhl;ow;F nghndhk;/ Kj;Jhl; igdhd;!; vjpuhf nuhil rhe;jp fle;jJk; xU Ml;nlh http://www.judis.nic.in 54/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 te;jJ/ Ml;nlhtpy; te;jth;fs; rhe;jp ifapypUe;j igia gpL';fp bfhz;ldh;/ gpd;g[ eh';fs; tPl;ow;F te;J tpl;nlhk;/ ehd;
bfh";r neuk; rhe;jpnahL ,Ue;njd;/ gpd;g[ eh';fs; tPl;ow;F brd;W tpl;nld;/ kWehs; fhiy $dhh;j;jdd; nehpilahf v';fs; tPl;ow;F te;jhh;/ eh';fs; v';nf nghapUe;jPh;fs; vd;W nfl;nld;/ mth; 4 ngh; te;J Tl;o bfhz;L nghdjhf brhd;dhh;/ nghyprhh; vd;id tprhhpj;jdh;/ rhe;jp tPl;ow;F ,ut[ 11 kzpf;F nghndd;/ ehDk; vd; fztUk; nghndhk;/ vd; tPl;ow;Fk; rhe;jp tPl;ow;Fk; ,ilapy; bfh";r Jhuk;/ rhe;jp tPl;ow;F nghFk;nghJ mth; kl;Lk;
jhd; tPl;oy; ,Ue;jhh;/ mz;zd; ,d;Dk;
fhnzhk; vd;Wk; te;J tpLtjhf nghd;
bra;jhh;/ Mdhy; ,d;Dk; tutpy;iy vd;W
brhd;dhh;/ gzk; nfl;gjhf mtuhf ngrp
bfhz;oUe;jhh;/ vd;dpl;k brhy;ytpy;iy/ ehd;
vd;d vd;W tprhhpf;ftpy;iy vd;why; mth;
nghd; ngrp bfhz;oUe;jjhy; ehd;
tprhhpf;ftpy;iy/ Kj;Jhl; igdhd;!; mUfpy;
nghFk; nghJ ,ut[ 3 Kjy; 4 kzpapUf;Fk;/
mrh 2 rhe;jp vd;id Jizf;F jhd;
http://www.judis.nic.in
55/90
Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 miHj;Jf; bfhz;L nghdhh;/ ntW ve;j tptuKk; vd;dplk; brhy;ytpy;iy vd;why; brhy;ytpy;iy/ vdf;F bjhpahJ/ Kj;Jhl; igdhd;!; nghdt[ld; rhe;jp nuhil ntfkhf fpuh!; bra;jhh;/ ehd; epd;W bfhz;nld;/”
42. It will also be relevant to extract the evidence of P.W.4 and P.W.6, who had corroborated the evidence of P.Ws.1 and
2. P.W.4 in his evidence has stated as follows: “18.04.2013 md;W 10. 10/30
kzpf;Fs;shf rhg;gpl;Lf;bfhz;oUe;njhk;/ ehd;
nuhl;ilg; ghh;j;J cl;fhh;e;J
rhg;gpl;Lf;bfhz;oUe;njd;/ vd; Kjyhsp
tz;oapy; ngha; bfhz;oUe;jhh;/ ehd;
mg;nghJ rhg;gpl;Lf;bfhz;oUe;njd;/ ehd;
rhg;gpl;l ,lj;jpypUe;J rk;gtk;
ele;j ,lj;jpw;Fk; ,ilapy; 40 my;yJ 50
mo Jhuj;jpw;Fs;spUf;Fk;/ ,l;yp rhg;gpl;L
bfhz;oUf;Fk;nghJ fz; K:o jpwg;gjw;Fs;
rk;gtk; ele;jJ vd;why; rhpjhd;/ ehd;
rhg;gpl;Lf;bfhz;oUe;j filapy; ,Ue;J Rkhh;
ehiye;J filfs; jhz;o rk;gtk; ele;jJ “...............” nklj;jplk; brhd;ndd;/ vjphpfis ghh;f;ftpy;iy/ rk;gtj;ij kl;Lk; ghh;jn ; jd;/ http://www.judis.nic.in 56/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 vd; Kjyhsp kidtp bgah; rhe;jp/ rk;gtk;
ele;j gpd; Kjyhsp kidtpf;F vj;jid
kzpf;F bjhpag;gLj;jpndd; vd;why;
gj;jiuf;Fs; ,Uf;Fk;/ mth;fs; v';fis
tPl;ow;F tUk;go brhd;dhh;fs;/ eh';fs; mth; tPl;ow;F ,ut[ 10/40 kzp mstpy; nghndhk;/ v';fs; Kjyhsp tPl;oy; mth; kidtp mtuJ jk;gp kidtp kfhbyl;Rkp ,Ue;jdh;/ ntW ahUkpy;iy/ nklk; vd;dplk; bfh";rk;
bghWj;J ghh;g;nghk; bghW';fs; vd
brhd;dhh;fs;/”
43. P.W.6 in his evidence has stated as follows:
“Tl;lj;jpy; $dhh;j;jdid
ghh;j;njd;/ mtiu fhhpy; Vw;wpanghJ ehd;
ghh;j;njd;/ Tl;lj;jpw;F mUfpy; te;Jjhd;
ghh;j;njd;/ gpd;g[ ,ut[ 10/45 kzp Kjy; 11
kzpf;Fs; $dhh;j;jdd; tPl;ow;F ehDk;
fpUc&;zDk; nghndhk;/ v';fs; cwtpdh;
ahUf;Fk; ehd; bjhiyngrpapy; brhy;ytpy;iy/ $dhh;j;jdd; tPl;ow;F nghFk;nghJ mth;
kidtpa[k; kfhbyl;Rkpa[k; ,Ue;jhh;fs;/ ehd; ghh;j;j tptuj;ij brhd;ndd;/ tPl;ow;Fs; jhd; http://www.judis.nic.in 57/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 nghndhk;/ ehd; vd; tPl;ow;F nghFk;nghJ fhiy Rkhh; 4 1/4 kzp ,Uf;Fk;/ $dhh;j;jdd; tPl;oypUe;J Rkhh; ,ut[ 1 kzpf;F btspapy; te;njhk;/ “...............” kWehs; fhiy Mnwfhy; kzpf;F nghdpy;
fpUc&;zdplk; nghd; K:yk; $dhh;j;jdd; 2
rf;fu thfdj;ij vLj;J tu brhd;dhh;/
mg;nghJ fpUc&;zd; mth;
tPl;oy;jhd; ,Ue;jhh;/ gpd;g[ $dhh;j;jddplk;
nghd; bra;J tz;o mgpuhkp ghh;krp!;l; fil mUfpy; epw;gjhf brhd;dhh;/ vLj;J tu brhd;dhh;/ vdf;F bry;nghd; ,Uf;fpwJ/ ehDk; fpUc&;zDk; nrh;e;Jngha; jhd; tz;o vLj;njhk;/ mg;nghJ fhiy 7 kzpapUf;Fk;/ ehDk; fpUc&;zDk; $dhh;j;jdd; tPl;oy;
re;jpf;Fk;nghJ fhiy 6/45 kzpapUf;Fk;/
bjhiyngrpapy; $dhh;j;jdd;
v';fs; ,Utiua[k; tPl;ow;F tu brhd;dhh;/
eh';fs; $dhh;j;jdd; mth; jk;gp tPl;oy;
itj;Jg; ghh;j;njhk;/ eh';fs; ,uz;LngUk;
tz;oapy; te;njhk;/ ,uz;L ngUk; nrh;e;J
fpUc&;zd; tz;oapy; brd;W $dhh;j;jdd;
thfdj;ij vLj;J te;njhk;/ tz;o rhtp
laUf;F moapy; ,Ug;gjhf fpUc&;zdplk;
http://www.judis.nic.in
58/90
Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 $dhh;j;jdd; brhd;dhh;/ mij nghy; tz;o laUf;F moapy; 2 rf;fu thfdj;jpd;
rhtp ,Ue;jJ/”
44. The evidence of P.W.1, P.W.2 and P.W.5 is sufficiently corroborated by the evidence of P.Ws.4 & 6. The whole incident gets a complete picture, if the evidence of all these witnesses are read and understood in totality. Eventhough there are certain discrepancies and embellishments, in the considered view of this Court, it does not affect the credibility of these witnesses and it does not in any way discredit their evidence.
45. In view of the above finding, the mere delay in the registration of FIR or the same reaching the Court or the material documents reaching the Court, does not really impact the case of the prosecution and this delay by itself does not in any way take the credibility of the evidence of the above said witnesses. It will be relevant to take note of the certain judgments of the Hon'ble Supreme Court in this regard.
(a) “ In State of U.P. v. Jagdeo, (2003) 1 SCC 456, the Supreme Court has categorically held that the case of the prosecution need not be http://www.judis.nic.in 59/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 jettisoned in its entirety on account of defects in investigation. The Court observed as under:
8. Coming to the aspect of the investigation being allegedly faulty, we would like to say that we do not agree with the view taken by the High Court. We would rather like to say that assuming the investigation was faulty, for that reason alone the accused persons cannot be let off or acquitted. For the fault of the prosecution, the perpetrators of such a ghastly crime cannot be allowed to go scot-free. All the accused persons were armed with deadly weapons and they attacked the members of the victims' family who were totally unarmed and were sleeping at night in the open. The High Court has expressed a doubt about the FIR being lodged at the time alleged by the prosecution and the manner in which it is so stated by the prosecution.
The question however is: is it sufficient to acquit all the persons? The trial court had discussed all the elements leading to the brutal murder in this case and found them against the accused persons. Unfortunately, http://www.judis.nic.in 60/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 the High Court remained on the periphery and never attempted to grapple with the substance of the evidence on record. This peripheral approach of the High Court led to the impugned judgment of acquittal being passed. In the presence of such a strong evidence on record implicating the accused persons, things like alleged improper recording of time of lodging of FIR are not sufficient to dislodge the verdict of convictions passed by the Sessions Court. In our considered view the evidence of the eyewitnesses in the present case completely proves the prosecution case. The doubt thrown by the High Court on the presence of the eyewitnesses at the time of occurrence is totally unacceptable. The impugned judgment of the High Court whereby all the accused persons have been acquitted is hereby set aside. These appeals are allowed and the judgment of the Sessions Court is hereby restored. The accused persons shall be taken into custody to serve the remaining sentence as imposed on each of them by the Sessions Court.
http://www.judis.nic.in 61/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018
(b) A similar approach was adopted in State of M.P. v. Mansingh, (2003) 10 SCC 414, where Pasayat, J opined as under:
12. Even if it is accepted that there were deficiencies in the investigation as pointed out by the High Court, that cannot be a ground to discard the prosecution version which is authentic, credible and cogent.
15. Merely because there was some change in time of the lodging of the FIR, that does not per se render the prosecution version vulnerable. At the most, the requirement was a careful analysis of the evidence, which has been done by the trial court.
(c) In Yogesh Singh v. Mahabeer Singh, (2017) 11 SCC 195, the Supreme Court quoted, with approval, its earlier decision in. Muniappan v. State of T.N. [C. Muniappan v. State of T.N., (2010) 9 SCC 567 : (2010) 3 SCC (Cri) 1402] , wherein the law was explicated thus:
“55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such http://www.judis.nic.in 62/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehorssuch lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation.” http://www.judis.nic.in 63/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018
46. In the present case, P.W.1 is the victim of crime. The testimony of a victim has to be given more credence and weightage, more particularly, where it inspires the confidence of the Court. The evidence of a victim cannot be discarded on mere technicalities or infirmities, embellishments found in the evidence or deficiencies found in the investigation conducted by the police. The relevant judgments of the Hon'ble Supreme Court on this issue is extracted hereunder:
(a) “In Shamim v. State (NCT of Delhi), (2018) 10 SCC 509, a three judge bench of the Supreme Court set out the approach to be adopted in evaluating the testimonies of victims of crime. The case concerned a brutal cold blooded murder of the victim’s brother and mother. The victim was a survivor and the only woman present. Her testimony was sought to be shaken by resorting to hyper-technicalities.
Rejecting such an approach, the Supreme Court opined as under
“12. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole inspires confidence. Once that http://www.judis.nic.in 64/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error without going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court. Small/trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies http://www.judis.nic.in 65/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it.
13. PW 2 was a minor student witness aged about thirteen years. She broke down during her evidence and cross-examination recalling the occurrence. Her cross-examination had to be deferred on more than one date. Notwithstanding the gruelling nature of her cross-examination which runs into approximately 14 pages she withstood the same tenaciously. Her presence at the place of occurrence and injury caused during the occurrence has stood unshaken. The appellant was the only woman present. The question for confusion of identity simply does not arise. The witness in her cross-examination specifically denied having been tutored, and from her evidence we find no http://www.judis.nic.in 66/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 reason to disbelieve her. There may be some inconsistencies in her evidence, minor and trivial in nature. But that cannot erase her credibility as a reliable witness to the occurrence.”
(b) Emphasizing the objective of a criminal trial, the Supreme Court’s clarion to all criminal courts is instructive and bears repetition;
“15. Each criminal trial is but a quest for search of the truth. The duty of a Judge presiding over a criminal trial is not merely to see that no innocent person is punished, but also to see that a guilty person does not escape. One is as important as the other. Both are public duties which the Judge has to perform.”
(c) It is also well settled that the evidence of a victim cannot be cast aside by taking recourse to lapses on the part of the investigating agency. In Ram Singh v. State of H.P., (2010) 2 SCC 445, the Supreme Court held:
16. It was contended by the learned counsel for the appellant that the bloodstained clothes which were said to have been handed over to the http://www.judis.nic.in 67/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 officer-in-charge at the Police Station by the husband of the victim were not sent for chemical examination and, therefore, the corroboration which such evidence could offer was absent. In our view, the failure of the investigating agency cannot be a ground to discredit the testimony of the victim. The victim had no control over the investigating agency and the negligence, if any, of the investigating officer could not affect the credibility of the statement of PW 1, the victim.
Having regard to the facts and circumstances of this case, we are satisfied that on the basis of the evidence on record, the conviction of the appellant can be sustained.
(d) “On a similar vein is the decision in State of H.P. v. Shree Kant Shekari, (2004) 8 SCC 153, where the Court held that the text book defence of delay in lodging an FIR cannot be used as a ritualistic formula to jettison the case of the prosecution. The Court observed:
http://www.judis.nic.in 68/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018
18. The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging the first information report cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the court is to only see whether it is satisfactory or not. In case if the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand, satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of the prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen her. That being so, the mere delay in lodging of the first information report does not in any way render the prosecution version brittle. These aspects were highlighted http://www.judis.nic.in 69/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 in Tulshidas Kanolkar v. State of Goa [(2003) 8 SCC 590 : 2004 SCC (Cri) 44].”
47. In the present case, there was no necessity for P.W.1 to foist a false case against the accused persons. Admittedly, there was no previous enmity or ill-will between the parties. The entire incident has been cogently explained by P.W.1 and sufficiently corroborated by P.W.2, who is his wife. Their evidence, is natural and it inspires the confidence of this Court. It is also corroborated by the evidence of P.Ws.4 to 6. Therefore, there is no requirement for this Court to look for any further corroboration. It is a settled law that the Court can act on the testimony of a single witness, even without looking for a corroboration, if it is credible.
Evidence has to be weighed and not counted. It will be relevant to rely upon the following judgments of the Privy Council and the Hon'ble Supreme Court, in order to buttress this finding.
(a) “ Section 134 of the Evidence Act sets out that no particular number of witnesses shall be necessary as proof of any fact. The basis of this rule was spelt out by the Privy Council in Mohamed Sugal Esa Mamasan Rer Alalah v. King, AIR http://www.judis.nic.in 70/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 1946 PC 3, in the following passage:
It was also submitted on behalf of the appellant that assuming the unsworn evidence was admissible the Court could not act upon it unless it was corroborated. In England where provision has been made for the reception of unsworn evidence from a child it has always been provided that the evidence must be corroborated in some material particular implicating the accused. But in the Indian Act there is no such provision and the evidence is made admissible whether corroborated or not. Once there is admissible evidence a Court can act upon it; corroboration, unless required by statute goes only to the weight and value of the evidence. It is a sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of prudence and not of law. In a careful and satisfactory judgment the Judge of the Protectorate Court shows that he was fully alive to this rule and that he applied it, and their Lordships are in agreement with him as to the matters he took into account as corroborative of the girl's evidence. http://www.judis.nic.in 71/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018
(b) The aforesaid observations were quoted with approval by the Supreme Court in Vadivelu Thevar v. State of Madras, 1957 SCR
981. Sinha, J (as he then was) observed as under:
“10. …..On a consideration of the relevant authorities and the provisions of the Evidence Act, the following propositions maybe safely stated as firmly established:
(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.
(2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.
(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no http://www.judis.nic.in 72/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes.
11. In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act, has categorically laid it down that “no particular number of witnesses shall, in any case, be required for the proof of any fact”. The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act, 1872, there have been a number of statutes as set out in Sarkar's Law of Evidence — 9th Edn., at pp. 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in Section 134 quoted above. The http://www.judis.nic.in 73/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 section enshrines the well recognizedmaxim that “Evidence has to be weighed and not counted”. Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play.
The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be http://www.judis.nic.in 74/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way — it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and http://www.judis.nic.in 75/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, http://www.judis.nic.in 76/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution.”
(c) Section 134 of the Evidence Act once again fell for consideration in Namdeo v. State of Maharashtra, (2007) 14 SCC 150. After an exhaustive analysis of the earlier authorities the Supreme Court held:
“28. From the aforesaid discussion, it is clear that Indian legal system does not insist on plurality of witnesses. Neither the legislature (Section 134 of the Evidence Act, 1872) nor the judiciary mandates that there must be particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of http://www.judis.nic.in 77/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. The bald contention that no conviction can be recorded in case of a solitary eyewitness, therefore, has no force and must be negatived.
(d) In Prithipal Singh v. State of Punjab, (2012) 1 SCC 10, the Supreme Court observed as under:
“49. This Court has consistently held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number or the quantity, but the quality that is material. The time- http://www.judis.nic.in 78/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence, rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence.
[See VadiveluThevar v. State of Madras [AIR 1957 SC 614 : 1957 Cri LJ 1000] , Sunil Kumar v. State (Govt. of NCT of Delhi) [(2003) 11 SCC 367 : 2004 SCC (Cri) 1055] , Namdeo v. State of Maharashtra [(2007) 14 SCC 150 : (2009) 1 SCC (Cri) 773] and Bipin Kumar Mondal v. State of W.B. [(2010) 12 SCC 91 : (2011) 2 SCC (Cri) 150 : AIR 2010 SC 3638].
(e) A similar test was spelt out by the Supreme Court in S.P.S. Rathore v. CBI, (2017) 5 SCC 817.” http://www.judis.nic.in 79/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018
48. The prosecution had examined P.Ws.13 and 14 to speak about the arrest of A2, A3 & A5, confession and recovery from them and P.Ws.15 and 16 to speak about the arrest of A6 & A7, confession and recovery from them and all these witnesses have turned hostile. Similarly, the two wheeler owner P.W.17, who was examined by the prosecution also turned hostile. Eventhough all of them have turned hostile, they have accepted and admitted the signature found in the confession statement.
49. The prosecution had examined P.W.11, who is the Village Administrative Officer, who has spoken about the arrest of A1 and A4 on 29.04.2013. He has also stood as a witness for the confession and recovery of the cash of a sum of Rs.5,15,000/- from A1, bag (M.O.4) and two wheeler, laptop and Galaxy Phone (M.O.6) through recovery mahazer(Ex.P8). He has also spoken about the arrest of A4 and the recovery of the TATA Sumo car through mahazer Ex.P.10. This witness is an independent witness, who has clearly spoken about the arrest, confession and recovery of A1 and A4. All the other accused persons were arrested and material objects were recovered, based on their confession, only based on the confession given by A1. Therefore, their arrest and recovery was consequential to the arrest and confession of A1. Therefore, the arrest and recovery that were made from the other accused http://www.judis.nic.in 80/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 persons cannot be disbelieved, merely, because P.W.13 to P.W.16 turned hostile. It is to be noted in this case that the prosecution had recovered a total sum of Rs.11,37,500/- from the accused persons (M.O.7) out of the total amount of Rs.15 lakhs. There is no explanation from the accused persons as to how so much of amount was recovered from them by the police. The amount that has been recovered is really substantial and there is no ground to doubt the same, just because some of the witnesses have turned hostile.
50. In this case, the investigating officer has not properly investigated the case. He failed to conduct the investigation in a systematic manner and it is unfortunate that such an investigation was conducted in a case, which involved a very serious crime. For the various deficiencies that were pointed out by the learned counsel appearing for the appellants in the investigation, there was no answer from the investigating officer.
However, this Court has already found that inspite of such slipshod investigation, this Court was able to find credible evidence to sustain the case of the prosecution and fortunately, the defective investigation has not completely destroyed the case of the prosecution.
http://www.judis.nic.in 81/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018
51. In the considered view of this Court, the prosecution has clearly proved the offences, for which the charges have been framed against the accused persons and the trial Court has really taken pains to remove the chaff from the grain and find out the real truth in the prosecution case. This Court does not find any ground to interfere with the judgment of the trial Court and in the considered view of this Court, the prosecution has proved the case beyond reasonable doubts.
Crl.A.(MD).No.204 of 2018:
52. This Court will now independently deal with Crl.A. (MD).No.204 of 2018, which has been filed by the defacto complainant, aggrieved by the order of the Court below returning the gold jewels (M.Os.12 to 15) in favour of the wife of A3. The Court below has relied upon the evidence of D.W.1, who is the wife of A3 and also Ex.D1 to Ex.D10, to come to a conclusion that M.Os. 12 to 15 belongs to the wife of A3.
53. The learned counsel appearing on behalf of the appellant submitted that M.Os.12 to 15 were recovered pursuant to the confession given by A3 and whatever was recovered is admissible under Section 27 of the Indian Evidence Act. This recovery was made from A3 under mahazer Ex.P.31. The witnesses http://www.judis.nic.in 82/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 P.Ws.13 and 14, however turned hostile and did not support the recovery. It is the specific case of the prosecution that these gold jewelries were purchased by A3 from Sri Navamani Jewellers on 22.04.2013, out of the share, he got from the crime. The gold jewelry as well as the receipt from Sri Navamani Jewellers was marked as M.Os.12 to 15.
54. The wife of A3 in her evidence states as follows:
“ehd; jhf;fy; bra;Js;s 1 Kjy;
5 kw;Wk; 7.8 Mtz';fis xg;gpl;L ghh;f;f
mriy ePjpkd;wj;jpy; ghh;itf;F
itf;ftpy;iy/ midj;J Mtz';fSk;
efy;fs; jhd;/ v/j/rh/M/6 MdJ 1.4.14f;F
gpw;gl;lJ vd;why; rhpjhd;/ v/j/rh/M/9 MdJ 11/01/2013 k; njjpapl;lJ me;j urPjpy; ve;j eiffSf;fhf gzk; brYj;jg;gl;ljhf Fwpg;g[ ,y;iy/ kjpg;gPl;oy; brhy;yg;gl;l eif ,e;j tHf;fpy; Fwpaplg;gl;l eif ntW ntW vd;why; rhpay;y/ bghJthf ntW egUf;fhf cjtp bra;tjw;fhf eiffis mlF itj;Jf;bfhLf;fyhk; vd;why; rhpjhd;/ v/j/rh/M/10 y; nkny fpHpf;fg;gl;Ls;sJ (filapd; tpyhrk; cs;s gFjp) vd;why;
rhpay;y/ me;j urPjpy; ifbahg;gk;
http://www.judis.nic.in 83/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 vd;w ,lj;jpy; ahUk; ifbahg;gk; ,ltpy;iy/ v/j/rh/M/10 y; cs;s eif tptuk; Kgikahf ,y;iy/ ePjpd;wj;jpy; Fwpaplg;gl;l eif ntW v/j/rh/M/10 y; Fwpj;j eif ntW vd;why;
rhpay;y/ v/j/rh/M/10 tHf;fpw;fhf cw;gj;jp bra;ag;gl;lJ vd;why; rhpay;y/ vd; fzth;
Kdpuh$; rhl;rpak; mspf;f
jFjpahdtuhf ,Ue;Jk; jtwhd tptu';fis
rhl;rpakhf itj;Js;nsd; vd;why; rhpay;y/
kJiu bjg;gf;Fsk; fhty; epiyaj;jpypUe;J
njdp khtl;lk; fk;gk; mUfpYs;s cg;ghh;gl;o
fhty; epiyak; cs;s Jhuk; 90
fp/kP ,Uf;Fk;/ ehndh. vd; fztnuh Kjy;
epiy tprhuizapy; brhd;d
tptu';fis ,jw;F Kd;ghf ntW fPH;
ePjpkd;wj;jpnyh bghyp!; cah; mjpfhhpaplnkh
murplnkh ve;j g[fhh; bra;atpy;iy/”
55. The learned counsel appearing for A3 in Crl.A. (MD).No.367 of 2018 submitted that the evidence of D.W.1 and Ex.D1 to Ex.D10 clearly establishes the fact that the gold jewelries belongs to the wife of A3.
http://www.judis.nic.in 84/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018
56. A careful look at Ex.D1 to Ex.D10 reveals the fact that most of it are photocopies and there is no explanation as to why the originals were not produced. In most of the receipts, there is no signature. The trial Court failed to take note of the receipt that was marked before the Court below, which clearly shows that the gold jewelery has been purchased from Sri Navamani Jewellers on 22.04.2013. Even without noticing the receipt that was marked before the Court below, the Court has given a finding that the prosecution has not let in any evidence to show that M.Os.12 to 15 were purchased by A3, out of the money that was extorted from P.W.1.
57. In the considered view of this Court, it is clear that the evidence of D.W.1 and Exs.D1 to D10, does not in any way establish the ownership of the jewels in favour of the wife of A3. On the other hand, it is seen that these jewelries were purchased from Sri Navamani Jewellers, on 22.04.2013. This purchase was made after the extortion of money from P.Ws.1 &2 on 19.04.2013 and A3 received his share, as per his confession made to the respondent police.
58. In the considered view of this Court, the finding given by the trial Court and returning the jewels to the wife of A3, http://www.judis.nic.in 85/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 is totally unsustainable. The trial Court ought to have returned back the jewelry, only to the defacto complainant, since it was purchased from the money extorted from him. Accordingly, the finding of the trial Court insofar as the return of the gold jewelery (M.Os.12 to 15), is hereby set aside.
59. In the result, the appeals filed in Crl.A.(MD).Nos. 367, 391, 400, 404 & 440 of 2017 and 175, 49 of 2018 are dismissed and the conviction and sentence passed by the trial Court by its judgment, dated 10.08.2017, made in S.C.No.399 of 2014, is hereby sustained.
60. Bail bond executed by A1 to A7 is hereby cancelled and they are directed to immediately surrender before the learned Judicial Magistrate No.I, Madurai, in order to undergo the remaining period of sentence. If they do not surrender, the respondent police is directed to immediately secure them and produce them before the learned Judicial Magistrate No.I, Madurai, who in turn will confine the accused persons to the jail to make them serve the remaining period of sentence.
61. The Crl.A.(MD).No.204 of 2018 is hereby allowed and the gold jewels (M.O12 to M.O.15) are ordered to be handed http://www.judis.nic.in 86/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 over to the defacto complainant. Consequently, connected Crl.M.P. (MD).No.3354 of 2018 is closed.
62. This Court had given specific directions at paragraph No.36, directing the police to strictly follow the guidelines regarding the despatch of the material documents to the Court in the course of investigation and also has spelt out the consequences of the non-compliance of the guidelines. Hence, the copy of this order shall be marked to the Director General of Police, Chennai, Inspector General of Police of all zones and the Commissioners of all the Cities.
[S.V.N., J.] & [N.A.V., J.]
11.11.2019
Index : Yes / No
Internet : Yes / No
PJL
Note:Issue order copy on 11.11.2019.
To
1. IV-Additional District and Sessions Judge, Madurai.
2.The Director General of Police, Chennai.
3.The Inspector General of Police, http://www.judis.nic.in 87/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 All Zones in Tamilnadu.
4.The Commissioner of Police, All Cities in Tamilnadu.
5.The Inspector of Police, B3, Teppakulam Police Station, Madurai City.
6.The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai.
7.The Registrar Judicial, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 88/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 http://www.judis.nic.in 89/90 Crl.A.(MD).Nos.367, 391, 400, 404 & 440 of 2017 & 175, 49 & 204 of 2018 S.VAIDYANATHAN, J.
AND N.ANAND VENKATESH, J.
PJL Pre-delivery Judgment made in Crl.A(MD)Nos.367, 391, 400, 404 & 440 of 2017 and 175, 49 and 204 of 2018 11.11.2019 http://www.judis.nic.in 90/90