Madras High Court
Sukumar vs State Represented By on 28 June, 2019
Author: B.Pugalendhi
Bench: B.Pugalendhi
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON :30.03.2019
PRONOUNCED ON : 28.06.2019
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
Crl.A(MD)No.229 of 2009 and
W.P(MD)No.2 of 2009
Sukumar ... Appellant / Accused No.1
Vs.
State represented by
The Inspector of Police,
South Police Station,
Thanjavur Police Station,
[Crime No.555 of 2008] ... Respondent/ Complainant
PRAYER: Appeal filed under Section 374 of the Code of Criminal Procedure,
to call for the records in SC No.518 of 2008 on the file of the I Additional
Sessions Judge (PCR), Thanjavur dated 28.01.2009 and set aside the same.
For Appellant : Mr.R.Sivasubramanian
For Respondent : Mr.A.Robinson,
Government Advocate
JUDGMENT
This appeal is arising out of the conviction and sentence imposed by the I Additional Sessions Judge (PCR) in S.C.No.518 of 2008 dated 28.01.2009, wherein the learned trial Judge found this appellant and another guilty for the offence punishable under Section 411 IPC and sentenced them to undergo http://www.judis.nic.in 2 three years of rigorous imprisonment and sentenced to pay a fine of Rs.7,500/- each in defaul to pay fine, to undergo six months simple imprisonment.
2.The appellant and another were tried before the trial Judge for the charges as stated under Sl No Accused Charge under Sections 1 Accused Nos.1 and 2 457,302, 380, and 382 IPC 2 Accused No.3 201 and 300 r/w 109 IPC
3.The background facts, as projected by the prosecution, in a nutshell, are as follows:
The deceased Jeyaseeli, aged about 76 was living alone in Fathima Nagar, Thanjavur. 3rd accused was residing opposite to her house and the 1 st accused was also residing in the same Fathima Nagar. The 2nd accused one Muruganandam @ Mottai Muruganandam was friend of this appellant Sukumar and he was residing at Burma Colony, Thanjavur Town. The 3rd accused Peter was an Ex-service man and used to engage Auto for his travel. In the year 2008, A-2 was in need of money and he asked A1 for amount. While dropping A-3, A-1 has conveyed the same and requested him to give some money for A-2. A-3 informed A-1 and A-2 that the deceased was living separately and she is also having so much jewels and they can steal the same. Accordingly, they http://www.judis.nic.in 3 have conspired to steal the jewels from the deceased and pursuant to that conspiracy they entered into the deceased's house through rear door and attempted to steal the jewels from her house and the deceased woke up suddenly and she has also witnessed A-1 and A-2 and A-1 and A-2 frightened and throttled her neck and killed her. Thereafter, A-1 and A-2 have taken away the jewels of the deceased around 9 ¼ sovereigns and a sum of Rs. 4,000/- from her house.
4.On the side of the prosecution 31 witnesses were examined, 18 documents were marked and 16 MOs were marked during the trial. One Soundararajan was examined as defence side witness and Daily Thanthi News paper dated 09.07.2008 was marked as defence side exhibit.
5.PW.12 is the Doctor, who had conducted the postmortem on the dead body on 07.07.2008 at 4.50 pm and noticed abrasions (nail marking) of various sizes in the deceased neck and according to him the deceased died due to asphyxia due to compression of neck and the postmortem certificate issued by PW.12 is marked as Ex.P.9.
6.In appreciation of the evidence adduced on either side, the trial Court by its order dated 28.01.2009, found this appellant and another guilty http://www.judis.nic.in 4 for the offence punishable under Section 411 IPC and convicted and sentenced sentenced them as stated above.
7.The learned Counsel for the appellant would submit that this case is on the circumstantial evidence and there is no evidence to connect this appellant with the commission of offence. However, considering the arrest and recovery of the alleged jewels of the deceased from this appellant, the trial Court found this appellant and another guilty for the offence punishable under Section 411 IPC. According to the learned Counsel for the appellant, the arrest was not at all established by the prosecution and therefore, the recovery is also doubtful and when the arrest and recovery itself is doubtful, the learned trial Judge ought not to have convicted the appellant under Section 411 IPC.
8.Per contra, the learned Government Advocate appearing for the State would submit since, the prosecution was not able to connect the chain properly, the trial Court has extended the benefit of doubt and the accused including this appellant were acquitted from all other charges and based on the recovery made from this appellant, the trial Court has rightly convicted him under Section 411 IPC.
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9.A perusal of the evidence,the trial Court has rightly acquitted the accused from the charges as stated above and based on the recovery, has convicted this appellant and another for commission of offence under Section 411 IPC. Neither the State nor the complainant has preferred any appeal against the acquittal. Insofar as Section 411 IPC is concerned, the Investigating Officer PW.13 in his evidence has stated that on 09.07.2008 at about 5.30 am, this appellant had voluntarily given confession statement to the Investigating Officer and pursuant to the confession statement 4 bangles were with A2 and 2 bangles, 1 chain, 4, one set of ear stud, 3 ring, 2 bangles and black purse, MOs.1 to Mos.7 respectively, were recovered from this appellant and another in the presence of PW.9 under cover Mahazar. The MOs recovered from this appellant were also identified by PWs.2, 3 and 4. Though there is small discrepancies in the evidence PW.9 with regard to the place of arrest, the Investigating Officer was cross examined and he has specifically stated that the accused was arrested at E.B. Colony Bust stop and this fact has been elucidated from the evidence of PW.9 and PW.13 and further MOs.1 to 6 were recovered, pursuant to the confession statement and the same have been identified by the PW.2 to 4 and in view of the small discrepancies in the prosecution, this Court is not inclined to interfere with the judgment of the trial Court.
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10.In the result, this Criminal Appeal is dismissed and the order dated 28.01.2009 passed by the I Additional Sessions Judge (PCR), Thanjvaur is hereby confirmed. The respondent Police is directed to secure the appellant to undergo the remaining period of sentence. Consequently, connected miscellaneous petition is closed.
28 .06.2019
Index : Yes /No
dsk
To
1)I Additional Sessions Judge (PCR),
Thanjvaur
2)The Inspector of Police,
South Police Station,
Thanjavur District.
3)The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
4)The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
http://www.judis.nic.in
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B.PUGALENDHI, J.,
dsk
Pre-Delivery Judgment made in
Crl.A.(MD)No.229 of 2009
28.06.2019
http://www.judis.nic.in