Madras High Court
Karuppu Alias Subramanian vs State Of Tamil Nadu By Inspector Of ... on 27 February, 2013
Author: Aruna Jagadeesan
Bench: Aruna Jagadeesan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27/02/2013 CORAM THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.RC(MD)No.19 of 2005 Karuppu alias Subramanian ... Petitioner Vs State of Tamil Nadu by Inspector of Police Vilathikulam Police Station ... Respondent Prayer This Criminal Revision Case is filed against the judgement dated 11.6.2004 passed in CA.No.62/2002 by the learned Additional District and Sessions Judge, FTC-II, Tuticorin, confirming the judgement passed in SC.No.209/ 1995 by the learned Sub Judge, Kovilpatti.
!For Petitioner ... Mr.K.P.S.Palanivel Rajan ^For Respondent ... Mr.S.Ayyappan, GA :Order This Criminal Revision Case is filed against the judgement of conviction and sentence dated 11.6.2004 passed in CA.No.62/2002 by the learned Additional District and Sessions Judge, FTC-II, Tuticorin, thereby confirming the conviction and the sentence of fine amount, but modifying the sentence of imprisonment of seven years Rigorous Imprisonment to five years Rigorous Imprisonment, made in SC.No.209/1995 by judgement dated 4.7.2002 by the learned Sub Judge, Kovilpatti. In so far as the Petitioner/A4 is concerned, the Trial Court convicted and sentenced him for the offence under Section 395 read with 397 of IPC (one count) to undergo seven years Rigorous Imprisonment and to pay a fine of Rs.1,000/-, in default to undergo three months Rigorous Imprisonment and acquitted the Petitioner/A4 for the offence under Section 395 read with 397 of IPC in so far as the other count is concerned.
2. According to the Prosecution, on 26.9.1992 at about 8.30 p.m. in the Vilathikulam-Sathur Main Road, the accused persons, namely, the Petitioner herein/A4 and A1 to A3 waylaid the witnesses PW.1 to PW.5 and committed robbery of a cash of Rs.325 and another cash of Rs.29700/- from those witnesses and also committed robbery of watch from one Velusamy Thevar and ornaments, namely, ear- stud, gold ring and chain from his wife and accordingly, the accused were charged for the offence under Sections 395 read with 397 of IPC (2 counts).
3. The Trial Court placing reliance on the evidence of PW.1, PW.3 to PW.6 found all the accused persons/A1 to A4 guilty under Section 395 read with 397 of IPC (one count only) and convicted and sentenced them as stated above. But, however, the lower Appellate Court, while confirming the conviction and fine amount imposed by the Trial Court, including the Petitioner/A4, modified the sentence of imprisonment to five years Rigorous Imprisonment.
4. Mr.K.P.S.Palanivel Rajan, the learned counsel for the Petitioner contended that admittedly, the Petitioner/A4 was not identified by the witnesses PW.2 and her husband in the identification parade held in the prison and further, there was no specific overtact attributed against the Petitioner/A4. The learned counsel also submitted that no weapon was recovered from the Petitioner/A4 and there was no evidence that the accused caused any injury to the above said witnesses. The learned counsel would contend that the Petitioner/A4 was convicted on the basis of the recovery of gold ear stud from the house of the accused pursuant to his confessional statement to the Police and that when the Petitioner/A4 has not been identified by any of the witnesses and when there is no evidence to connect the petitioner/A4 with the actual participation in the dacoity, the recovery would not by itself prove that the article recovered at the instance of the Petitioner was the subject matter of dacoity. In support of his contentions, the learned counsel for the Petitioner relied on the decision of the Honourable Supreme Court reported in 2011-3-SCC- Crl-457 (State of Rajasthan Vs. Talevar and another).
5. On the other hand, Mr.S.Ayyappan, the learned Government Advocate supported the impugned judgement of conviction and sentence and submitted that there is no scope for interference.
6. This court heard the learned counsel on either side and also perused the materials placed on record.
7. According to the Prosecution, the occurrence took place on 26.9.1992 at 8.30 p.m. Admittedly, it was dark night and there was no light in the place of occurrence. PW.2, from whom gold chain, ring and ear stud were said to have been robbed, has deposed that she had seen the accused in Palayamkottai Prison. The identification of the Petitioner/A4 in the identification parade was rejected by the lower Appellate Court on the ground that the accused had already been shown to the witnesses and referred to the admission made by the said witnesses that they had seen the accused in the Police Station even before the identification parade conducted in the Palayamkottai Prison. None of the witnesses in their earlier statements or in the oral evidence gave any description of the dacoits whom they have alleged to have identified in the identification parade nor did the witnesses give any identification marks, i.e. stature of the accused or whether they were fat or thin or of a fair colour or of dark colour. In the absence of any such description and taking note of the fact that the accused had been shown to the witnesses in the Police Station even before the identification parade, it will be impossible to convict the accused on the basis of a single identification, in which case the reasonable possibility of mistake in identification cannot be excluded. The lower Appellate Court rightly rejected this piece of evidence, i.e. identification of the accused in the identification parade by the witnesses including PW.2. But, however, the Trial Court and the lower Appellate Court, on the basis of recovery of ear stud from the house of the accused pursuant to his confession, in so far as the Petitioner/A4 is concerned, held the Petitioner/A4 guilty for the offence under Section 395 read with 397 of IPC. Since the evidence of identification parade has been disbelieved, the position is that there is no legal evidence to connect the Petitioner/A4 with the actual participation in the dacoity said to have been committed by the dacoits in the place of occurrence, except the recovery.
8. Yet another discrepancy which has a bearing on the recovery is that though the occurrence had occurred on 26.9.1992, but the recovery has been made after a delay of nearly 16 days. The recovery by itself cannot be a conclusive evidence in this case, because there has been a delay of as many as 16 days after the occurrence in the recovery of articles. Even with regard to the said recovery, there is contradiction between the Prosecution case and the evidence of PW.2. According to the Prosecution, the accused himself removed the ear stud from PW.2, but PW.2 has stated in her evidence that she herself removed the ear stud and gave it to the accused on she being threatened by them. She has not specifically stated that the ear stud was given to the Petitioner/A4. She makes a general statement that all the accused threatened her with knife and she was forced to remove her ear stud, chain and ring.
9. The test identification of the accused is liable to be ignored on account of doubt about its fairness and the identification of case property also has to be discarded, because PW.2 in this case has not stated that the ornaments i.e. the case property was the one which was stolen from her. Neither there is any evidence from the investigating officer identifying the ear stud as the stolen property. Therefore, it cannot be held that the article recovered at the instance of the Petitioner was the subject matter of dacoity. Unless it is proved by reliable and acceptable evidence that the article recovered from the accused pursuant to his confession was identified by PW.2 as the subject matter of dacoity, no presumption could be drawn even to say that the Petitioner was a receiver of stolen property. Further, the time lag between the date of the incident and the date of recovery improbabilises the very possession of the stolen article by the Petitioner/A4.
10. At this juncture, it is relevant to refer to the observations made by the Honourable Supreme Court in the decision reported in 2011-3-SCC-Crl- 457 (State of Rajasthan Vs. Talevar and another), which is extracted below:-
"18. Thus, the law on this issue can be summarised to the effect that where the only evidence against the accused is recovery of stolen properties, then although the circumstances may indicate that the theft and murder might have been committed at the same time, it is not safe to draw an inference that the person in possession of the stolen property had committed the murder. It also depends on the nature of the property so recovered, whether it was likely to pass readily from hand to hand. Suspicion should not take the place of proof.
19. ..... Thus, it is evident that recovery on the basis of disclosure statements of either of the Respondent accused persons was not in close proximity of time from the date of the incident. More so, recovery is either of cash, small things or vehicles which can be passed from one person to another without any difficulty. In such a fact situation, we reach the inescapable conclusion that no presumption can be drawn against the said two Respondent accused under Section 114 Illustration (a) of the Evidence Act. No adverse inference can be drawn on the basis of recoveries made on their disclosure statements to connect them with the commission of the crime."
11. In view of the above said circumstances in the present case, there is no evidence that the article, which was recovered at the instance of the accused, was the subject matter of dacoity, as it is not identified by the Prosecution witnesses, more particularly, PW.2 to the effect that the property recovered from the accused was the property stolen from her. In these circumstances, even there cannot be a presumption that the Petitioner/A4 was a receiver of the stolen property.
12. For the foregoing reasons, the impugned judgement conviction and sentence imposed on the petitioner/A4 is not sustainable.
13. In the result, this criminal revision petition is allowed. The impugned judgement of conviction and sentence imposed on the petitioner/A4 are set aside and the Petitioner/A4 is acquitted of all the charges levelled against him. The bail bond executed by him shall stand cancelled and the fine amount if any paid shall be refunded to him.
Srcm To:
1.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai
2.State of Tamil Nadu by Inspector of Police Vilathikulam Police Station