Madras High Court
Ananthan vs State Represented By on 16 September, 2019
Author: B.Pugalendhi
Bench: B.Pugalendhi
Crl.A(MD)No.235 of 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :16.09.2019
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
Crl.A(MD)No.235 of 2009
1.Ananthan
2.Suresh ... Appellants / Accused
Vs.
State represented by
The Inspector of Police,
Prohibition Enforcement Wing,
Theni District.
[Crime No.124 and 125 of 2005] ... Respondent/ Complainant
PRAYER: Appeal filed under Section 374 of the Code of Criminal Procedure,
to set aside the order dated 21.08.2009 passed by the learned Special District
and Sessions Judge (for NDPS Act Cases), Madurai in CC No.366 of 2005.
For Appellants : Mr.M.Karunanithi
For Respondent : Mrs.S.Bharathi,
Government Advocate (crl side)
JUDGMENT
The appellants in this Criminal Appeal are the accused Nos.1 and 2 in C.C.No.366 of 2005 and the trial Court found them guilty under Section 8 (C) r/w 20 (b) (ii)(B) of NDPS Act, convicted and sentenced them to undergo three http://www.judis.nic.in 1/9 Crl.A(MD)No.235 of 2009 years rigorous imprisonment, with a fine of Rs.5,000/- and in default of payment of fine amount, two weeks of simple imprisonment was also ordered.
2.The case of the prosecution in nutshell is that on 31.07.2005, at about 8.00 am, when PW4 was in charge of the Theni, Special Branch Office, he received an information that three persons from Andhrapradesh came to Theni for selling Ganja. Based on this information, PW.4 intimated the information to his higher official and proceeded to the place namely Annanji Vilakku along with Head Constable, where he found that the appellants and A3 carrying white colour bags. He intercepted them by showing his identity and informed about their right of search being made in front of an Executive Officer or Judicial Magistrate. But, the accused gave their consent in writing that the search can be made by the Police Official themselves and therefore, the bags carried by the accused were searched in their presence and 9 Kgs of Ganja were found in the bag belonging to A1 and 9 Kgs of Ganja were found in the bag belonging to A2 and 7 Kgs of Ganja were found in the bag belonging to A3. He took two samples of 50gms of Ganja each from the bags recovered and duly sealed them. Thereafter, he produced the accused before the Prohibition Enforcement Wing, Theni and three cases were registered by the Prohibition Enforcement Wing in Crime Nos.124 to 126 of 2005 under Section 20(b)(ii)(B) of NDPS Act. He also intimated the relatives of the accused through Intimation http://www.judis.nic.in 2/9 Crl.A(MD)No.235 of 2009 Ex.P14 to Ex.P17. The First Information Report is marked as Ex.P18.
3.The samples collected were sent for chemical analysis and the Scientific Assistant of Regional Forensic Science Lab, Madurai, submitted his reports as follows:
in Crime No.124 of 2005 E.P.7, in Crime No.125 of 2005 Ex.P.10, in Crime No. 126 of 2005 Ex.P.13. According to his reports, the presence of cannabis were found.
The further investigation was taken over by the Inspector of Police, Prohibition Enforcement Wing, Theni on 31.07.2005. He collected the lab reports and examined witnesses and filed a final report as against the accused on 19.09.2005 for the offence under Section 8 (C) r/w 20(b)(ii)(B) of NDPS Act.
On the side of the prosecution 5 witnesses were examined and 19 documents were marked and 9 material objects were produced.
PW1 is the Sub Inspector of Police, Prohibition Enforcement Wing, who received the intimation, conducted the search, seized the contraband and registered FIR.
PW.2 http://www.judis.nic.in 3/9 Crl.A(MD)No.235 of 2009 in de fault 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 http://www.judis.nic.in 4/9 Crl.A(MD)No.235 of 2009 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 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.
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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 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 http://www.judis.nic.in 6/9 Crl.A(MD)No.235 of 2009 him under Section 411 IPC.
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 http://www.judis.nic.in 7/9 Crl.A(MD)No.235 of 2009 prosecution, this Court is not inclined to interfere with the judgment of the trial Court.
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.
.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.
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Crl.A(MD)No.235 of 2009
B.PUGALENDHI, J.,
dsk
Pre-Delivery Judgment made in
Crl.A.(MD)No.229 of 2009
.06.2019
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