Madras High Court
Madasamy vs State on 10 July, 2012
Author: R. Mala
Bench: R. Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.07.2012 CORAM THE HON'BLE MS.JUSTICE R. MALA Crl.A.No.320 of 2007 1. Madasamy 2. Balasubramanian @ Suresh .. Appellants Vs. State Rep. by its Inspector of Police, Vaalparai Police Station, Coimbatore District. (Crime No.365 of 2004) .. Respondent Prayer.:- Appeal is filed under Section 374 of Cr.P.C. against the Judgment dated 23.03.2007 made in S.C.No.221 of 2006 on the file of the learned Additional District and Sessions Judge, Fast Track Court No.II, Coimbatore. For Appellants : Mr.G.Pugazhenthi For Respondent : Mr.C.Emalias, Government Advoate (Crl. side) - - - - - J U D G M E N T
The appeal arises out of the Judgment of conviction and sentence dated 23.03.2007 made in S.C.No.221 of 2006 on the file of the learned Additional District and Sessions Judge, Fast Track Court No.2, Coimbatore, whereby, A2 and A3 were convicted for the offence punishable under Section 397 IPC and sentenced to undergo seven years Rigorous Imprisonment with fine of Rs.250/- in default, to undergo six months simple imprisonment.
2. On 27.11.2004, at 12.30 p.m. when P.W.2 was proceeding towards Akkamalai Estate carrying the amount of Rs.1,50,000/- to disburse wages to the workers, working at Akkamalai Estate, Accused 1 to 4, with an intention to stole the above amount, conspired the plan and to execute the same, A2 and A3 assaulted P.W.2 with knife and wooden log and robbed the said amount of Rs.1,50,000/- thereby, A2 and A3 committed offences under Sections 394 and 392 r/w. 397 IPC and A1 and A4 committed offences under Section 392 of IPC.
3. The case of the prosecution is as follows:
(i) P.W.1-Suriya Kiran was the Manager of Akkamalai Estate at Valparai. P.W.2-Sanjay Uhman was the Assistant Manager of Akkamalai Estate at Valparai. P.W.7-Thomas was the Assistant Manager of Karumalai Estate. P.W.4-Sasikumar was the Section Officer of Karumalai Estate, who handed over a sum of Rs.1,50,000/- to P.W.2 and Rs.4,50,000/- to P.W.7. After receiving a sum of Rs.1,50,000/-, P.W.2 proceeded towards Akkamalai Estate. After moving a kilometer, P.W.3-Periyasamy, Hendal Lorry Driver, after loading tea on the lorry, proceeded towards Akkamalai Estate. At that time, P.W.2 and P.W.1 together overtook P.W.3's vehicle. Thereafter, P.W.1 overtook P.W.2's vehicle and proceeded toward his office. P.W.1 also went to the office and opened the door of the office. After some time, since P.W.2 did not come to the office, P.W.1 returned back in the same way and he witnessed that P.W.2 was lying down with bleeding injuries. Hence, P.W.1 along with P.W.3-Periyasamy and P.W.6-Periyasamy took him to Karumalai Estate Hospital, where, P.W.8 treated P.W.2. Thereafter, he referred P.W.2 to K.G.Hospital, Coimbatore, where P.W.9, Dr.Sekar treated him and issued Ex.P4-Wound certificate.
(ii) P.W.1 came back to the place of occurrence to search the amount and then, he found the amount of Rs.50,000/-. Thereafter only, he went to the Valparai Police Station and gave Ex.P1-Complaint which was registered by P.W.12 in Crime No.365 of 2004 under Section 394 IPC. P.W.12 prepared printed FIR under Ex.P19 and forwarded the same to the Judicial Magistrate, Valparai. Then, he rushed to the place of occurrence and in the presence of Somasundaram, Sivakumar, he prepared observation mahazar under Ex.P20 and drew rough sketch under Ex.P21. Thereafter, at 17.45 hours, he seized M.O.1-Wooden log under Ex.P22 in the presence of the same witnesses. He examined the witnesses and recorded their statements. On 28.12.2004, at 7.00 a.m. he seized M.O.4-blood stained cloth of Periyasamy, who took the injured to the hospital, under Form No.95. He examined the other witnesses and Doctor and recorded their statements. On 29.11.2004 at 9.00 a.m. he seized blood stained cloth of the injured / P.W.2 under Form 95 and he forwarded the material object to the Court. On 01.12.2004, he examined P.W.2 and recorded his statement. Thereafter, he took steps for arresting the accused.
(iii) On 17.01.2006, at about 7.00 a.m. near Valparai Gandhi Statue, P.W.12 arrested A2-Madasamy under suspicion. When A2 was examined in the presence of P.W.7-Selvapandi and Jeyapaul, he gave a confession statement and admissible portion of the confession statement was marked as Ex.P23. On the same day, at 8.45 a.m. he seized M.O.2-Bag under Ex.P7 in the same witnesses. Out of the robbed amount, he purchased chains i.e. M.O.5 to 7 and the same was seized under Ex.P8. Thereafter, at 10.00 a.m., he arrested A1-Kannan, A3-Suresh @ Balasubramanian, A4-Balasubramanian at A2's house. At that time, A1 gave confession statement at 10.15 a.m. and admissible portion of the confession statement was marked as Ex.P24 in the presence of the same witnesses. A1 handed over the Auto, which was purchased out of the robbed amount and the same was seized under Ex.P25. At about 11.45 p.m. A3 gave a confession statement in the presence of the same witnesses and admissible portion of the statement was marked as Ex.P26. He handed over Ring-M.O.9, which was seized under Ex.P14. At about 1.00 p.m. A4 gave confession statement and admissible of portion of the statement was marked as Ex.P16. In the presence of the same witnesses, A4 also handed over M.O.10-Chain, which was seized under Ex.P17. Since P.W.2 was called to identify the bag, he identified the same. The Identification Parade was conducted by P.W.11-Ravindiran, Judicial Magistrate No.1, Pollachi on the receipt of requisition letter-Ex.P28 given by P.W.12 and proceedings was marked as Ex.P18. On 03.02.2006, P.W.12 re-examined the other witnesses and recorded their statements. Then, he altered the offence under Section 394 IPC and the alteration report was marked as Ex.P29. On 24.02.2006, P.W.12 examined the Doctor, who issued wound certificate and recorded his statement. After concluding investigation, he filed a charge sheet against the accused under Section 394 and 397 IPC.
4. The learned Sessions Judge placed the incriminating evidence against the accused. But the accused denied the same in toto. A1 examined D.W.1-father and D.W.2-brother to prove that the auto was purchased out of pension benefit of D.W.1 and also finance availed from A.K.Finance and filed A.K. Finance pass book, which was marked as Ex.D3. A2 examined his wife Poomari @ Poomani as D.W.3 and she stated that the chain recovered from A2 was purchased by her own income. A3 examined one Rajendiran and Ramasubbu to prove that on 27.11.2004, he worked at Kottaikal Granite and to prove the same, marked the documents as Exs.D5 to D8. A3 himself examined as D.W.6 and marked the document as Ex.D13. A4 himself examined as D.W.7 and marked the document as Ex.D14.
5. The learned Sessions Judge, considering all the aspects, acquitted A1 and A4, holding that they were not involved in commission of offence and convicted A2 and A3 for the offences punishable under Section 397 IPC and sentenced them as stated above. Aggrieved against the same, the appellants have filed the present appeal.
6. Challenging the conviction and sentence, the learned counsel appearing for the appellant submitted that there is a delay in preferring the complaint and the identification parade has not been conducted in accordance with law, whereas, photographs were taken and the same were showed to P.W.2, on that basis only, P.W.2 identified A2 and A3 and the said photographs of the four accused were marked under Ex.D1. He further submitted that the recovery has not made in accordance with law and there is no evidence to show that A2 and A3 have committed robbery and the said amount was used to purchase the chain and ring. He further submitted that the evidence of P.W.10-Selvapandi, Tahsildhar, is not reliable. He further submitted that on the date of occurrence, A3 was working at Kottaikal Granite and the same has been proved by the evidence of D.W.4 and A3 also received salary on that day. He further submitted that since A2 was working in the Tea Estate, he was taking active part in the trade union activities, so, a false complaint has been foisted against the accused. Hence, he prayed for allowing of this appeal.
7. Resisting the same, learned Government Advocate (Crl. side) submitted that even though charge sheet has been filed against the four accused, the learned Sessions Judge, on considering the oral and documentary evidence, acquitted A1 and A4 and convicted A2 and A3 only on the basis of identification by P.W.2 in the Identification Parade and the identification parade was conducted in accordance with law. He further submitted that there is no evidence to show that the photographs of A1 to A4 were published in paper. He further submitted that the evidence of P.W.10 is admissible one and the delay in preferring the complaint has also been properly explained by the prosecution. Hence, he prayed for dismissal of this appeal.
8. The alleged occurrence is said to be taken place on 27.11.2004 at 12.30 p.m., but, the complaint had been given only at 4.00 p.m. Therefore, there is a delay of 3 = hours. At this juncture, this Court has to consider whether the delay in preferring the complaint is fatal to the case of prosecution?. P.W.1-Suryakiran, who was the Manager of Akkamalai Estate, in his evidence, deposed that while P.W.2 proceeding towards Estate, he overtook P.W.2 and went to the office. After some times, since P.W.2 did not come to the office, he returned back in the same way to search P.W.2. At that time, he witnessed that P.W.2 was lying down in the pool of blood. Thereafter, P.W.1 took P.W.2 to the Hospital at Karumalai Estate through P.W.3-Periyasamy and P.W.6-Periyasamy, from there, P.W.2 was referred to K.G.Hospital, Coimbatore. Thereafter, he came back to the place of occurrence made a search and found Rs.50,000/-, (3 bundles each contained Rs.10/- and 2 bundles each contained Rs.100/-). Then only, he went to the Police station and gave the complaint. Considering the evidence of P.W.1, I am of the view that the delay in preferring the complaint has been properly explained and in the complaint, the accused names had also not been mentioned. In such circumstances, the delay in preferring the complaint is not fatal to the case of the prosecution.
9. The learned counsel for the appellant submitted that no reliance can be placed on the Identification proceedings, i.e. Ex.P18, since P.W.2 had identified A2 and A3 only on the basis of photograph taken by the investigation agency and the same had been shown to P.W.2. He also culled out the portion of Ex.P18. While perusing the same, A2 and A3 stated that photograph and video had been taken while they were in custody. Ex.D1 is the photograph of the four accused.
10. It is pertinent to note Ex.D1-photograph of the four accused, which was marked before the Court. P.W.2, in his cross examination, denied a suggestion that at the time of remanding the accused only, he witnessed the accused by showing the photographs and then only, he identified the accused. Admittedly, photograph had been taken. While conducting the Identification parade, P.W.2 has identified A2 and A3. So, I am of the view, merely because, P.W.2 had identified A2 and A3, the same will not fasten criminal liability/guilt against A2 and A3.
11. At this juncture, it is appropriate to consider the evidence of D.W.4, who was the administrative officer of Kottaikal Granite. In his evidence, he deposed that on the date of occurrence, A3 attended duty and he also produced the attendant register, which was marked as Ex.D6. He also deposed that A3 also received wages on that day and to prove the same, he produced the wages disbursement register, which was marked as Ex.D7. A3 also received Certificate, marked as Ex.D8, which reveals that on that day, A3 was working as a casual Labourer in the firm from 02.01.2004 to 13.01.2006. Further, it reveals that he was present in the firm till 5.30 p.m. on 27.11.2004 and on that date he had accepted his weekly wages on 27.11.2004 and he left to his native place. He had reported back for duty on 21.12.2004.
12. A3 also himself examined as D.W.6. In his evidence, he deposed that on 17.01.2006, he was remanded by the Police. His father sent a letter to the District Collector, Tirunelveli on 19.01.2006 for his illegal detention, which was marked as Ex.D13. Considering the evidence of D.W.4 and Exs.D6 to D7, A3 was working at Kottaikal Granite office and on that day, he was present in the office and received wages. But, the learned Sessions Judge has not considered the above aspect. So, the prosecution has miserably failed to prove that on 27.11.2004, A3 assaulted P.W.2 and committed robbery.
13. The wife of A2 was examined as D.W.3. M.O.2-Bag had been seized from A2's house and to prove the same, P.W.10-Selvapandi was examined. P.W.10, in his evidence, fairly conceded that while seizing M.O.2-Bag from A2's house, he was not standing inside the house and standing outside the house away from 1/2 kilometer. In such circumstances, I am of the view that no relevance can be placed in the evidence of P.W.10.
14. One more adding circumstance is that neither in the FIR nor during the investigation, the investigating agency never mentioned about the identity of M.O.2-Bag, in which, cash has been carried. So, the identification of M.O.2-bag has also not been proved by the prosecution beyond all reasonable doubts. Even though P.W.2 identified the same at the time of trial, M.O.2-Bag is available in open market. Since P.W.10 deposed that while seizing M.O.2, he was standing outside the house away from 1/2 km. of A2's house and he had not witnessed the material object. Further, there is no evidence to show that out of the robbed amount, jewels M.Os.5 to 7 have been purchased by A2. Per contra, D.W.3, wife of A2 produced Ex.D4 to show that jewels have been purchased out of her own income. Considering the same, no evidence was produced by the prosecution that jewels have been purchased out of the robbed amount by A2.
15. As per the statement of A2 and A3 before P.W.11, after conducting the identification parade, they stated that photographs and video were taken while they were in custody and the same had been shown to P.W.2, then only, P.W.2 had identified them. But, the same has been probabilized by the defence by way of marking Ex.D1 and culled out the portion of Ex.P18. As far as the recovery of M.O.2 is concerned, even though P.W.10 was examined to prove the recovery of material object, in his cross examination, he fairly conceded that no material object has been seized in his presence and he was standing outside the house and the same is extracted hereunder:
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Considering the evidence of P.W.10, the prosecution has miserably failed to prove the recovery of M.O.2 from A2's house on the basis of disclosure statement.
16. At this juncture, it is appropriate to consider the decision of Supreme Court reported in AIR 1993 SC 777 (Nadodi Jayaraman etc. v. State of Tamil Nadu), wherein, it was held that this Court has time out of number pointed out that the Maxim falsus in uno falsus in omnibus cannot be mechanically applied and the mere fact that the evidence of some of the prosecution witnesses was found unsafe for convicting the co-accused, is by itself no ground for rejecting the whole body of their testimony. It only puts the Court on its guard to carefully scrutinise their evidence.
17. Considering the facts of the case on hand, A3 was proved that he was present at his working spot on 27.11.2004 and recovery of M.O.2 has not been proved in accordance with law and there is no evidence to show that material object seized from A2's house has been purchased out of the robbed amount by A2. So the prosecution has not proved the guilt of A2 and A3 beyond all reasonable doubt. Without assigning reasons, the trial Court disbelieved the evidence of D.Ws.3 and 4 and Exs.D6, D7 and D8 and not properly appreciated the evidence of P.W.10-Attestor in respect of seizure of M.O.2. So, the Judgment of conviction is liable to be set aside. Since the benefit of doubt is given in favour of the accused, the appellants/accused are entitled to acquittal from the charges levelled against them.
18. In fine:
i) the appeal is allowed
ii) the Judgment of conviction and sentence passed by the Sessions Judge under Section 397 IPC is hereby set aside.
iii) Bail bond, if any executed by the accused shall stand cancelled.
iv) Fine amount, if any paid by the accused is ordered to be refunded.
v) M.Os.5, 6 and 7 are ordered to be returned to A2 and M.O.1 is ordered to be returned to A3.
ogy To
1. The learned Additional District and Sessions Judge Fast Track Court No.II, Coimbatore