Madras High Court
Siva vs Http://Www.Judis.Nic.In on 18 December, 2018
Author: C.T.Selvam
Bench: C.T.Selvam, S.Ramathilagam
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.12.2018
CORAM:
THE HONOURABLE MR.JUSTICE C.T.SELVAM
AND
THE HONOURABLE MRS.JUSTICE S.RAMATHILAGAM
Criminal Appeal No.815 of 2009
and Criminal Appeal Nos.48, 68 and 77 of 2010
and Criminal Appeal No.238 of 2011
1.Siva
S/o.Natarajan
2.Palani @ Palanikumar
S/o.Gopalakrishnan ... Appellants/A3 & A6 in
Crl.A.No.815/2009 and
R3 and R6 in Crl.A.No.238/2011
1.Ramesh
S/o.Natarajan
2.Senthilkumar
S/o.Arunachalam
3.Subbuni @ Subramanian
S/o.Narayanasamy ... Appellants/ A1, A2 & A7 in
Crl.A.No.48/2010 and
R1, R2 & R7 in Crl.A.No.238/2011
G.Karthik
S/o.Govindaraj ... Appellant/A5 in Crl.A.No.68/2010
and R5 in Crl.A.No.238/2011
Gunasekaran
S/o.Sembian ... Appellant/A4 in Crl.A.No.77/2010
and R4 in Crl.A.No.238/2011
Vs
http://www.judis.nic.in
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State represented by its ... Respondent/Complainant in
The Inspector of Police, Crl.A.Nos.815/2009, 48, 68 and
Needamangalam Police Station, 77 of 2010 and
Thiruvarur District. Appellant/Complainant in
Crime No.227 of 2005 Crl.A.No.238 of 2011
Criminal Appeal Nos.815 of 2009, 48, 68 and 77 of 2010 filed u/s.374(2)
Cr.P.C. against the judgment of learned Assistant Sessions Judge, Mannargudi,
passed in S.C.No.13 of 2007 on 08.12.2009.
Criminal Appeal No.238 of 2011 filed u/s.377 Cr.P.C. seeking enhancement
of sentence passed by learned Assistant Sessions Judge, Mannargudi, passed in
S.C.No.13 of 2007 on 08.12.2009 and to impose the maximum sentence of death
penalty or life imprisonment as prescribed in the Code of Criminal Procedure
without altering the conviction on respondents/accused (A1 to A7) herein.
Appearance:
Appellants:
Crl.A.Nos.815 of 2009 : Mr.N.R.Elango, senior counsel
and 48 of 2010 for Mr.O.S.Thilak Pasumbadiyar
Crl.A.No.77 of 2010 : Mr.C.M.Gunasekaran
Crl.A.No.68 of 2010 : Ms.S.T.P.Kuilmozhi
Crl.A.No.238 of 2011 : Mr.K.Prabhakar, Additional Public Prosecutor
Respondents:
Crl.A.Nos.815 of 2009,
48, 68 and 77 of 2010 : Mr.K.Prabhakar, Additional Public Prosecutor
Crl.A.No.238 of 2011 : Ms.S.T.P.Kuilmozhi
*****
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COMMON JUDGMENT
[Judgment of the Court was made by C.T.SELVAM, J] Criminal Appeal Nos.815 of 2009, 48, 68 and 77 of 2010 arise against the judgment of learned Assistant Sessions Judge, Mannargudi, passed in S.C.No.13 of 2007 on 08.12.2009 while Criminal Appeal No.238 of 2011 has been moved by State seeking enhancement of punishment for offence u/s.366-A IPC.
2. Appellants faced trial in S.C.No.13 of 2007 on the file of learned Assistant Sessions Judge, Mannargudi, for offences u/s.364-A, 395 r/w 397, 392 r/w 395, 394 r/w 397 and 402 IPC. Case of the prosecution is that all accused were friends and their motive was to extract money from well-to-do persons. PW-4, a financier, after closing his shop, was returning home on his TVS XL moped on the night of 16.12.2005 at 08.30 p.m. when he was intercepted by accused in an Ambassador Car bearing registration No.TN-58-A-1447. A1 got out of the Car and threatened PW-4 at knife point and pushed him inside the Car. A2 and A3 were therein. A5 got out of the Ambassador Car and took PW-4's moped. PW-4 was taken to a cashew grove. A1 forcibly took Rs.5,000/- from the pocket of PW-4 as also his gold ring and thereafter, demanded a sum of Rs.1,00,000/- from the family members of PW- 4 over phone. Accused threatened PW-4 at knife point and forced him to require his family members to arrange Rs.5,00,000/-. A1 caused simple injury on the http://www.judis.nic.in 4 forehead of PW-4 using a knife and A2 to A7 beat him. A ransom payment of Rs.1,00,000/- was carried by PW-1 when he was accosted by A6 and A7 on the ‘Mannargudi-Vaduvur’ road and deprived thereof on 17.12.2005. On 18.12.2005, PWs.2 and 3 carrying money and acting on the instructions of A1, left their house in their Fiat Car bearing registration No.TN-51-Z-9907 driven by PW-9. Accused 1 to 5 had taken PW-4 in the Ambassador Car bearing registration No.TN-58-T-1447 to ‘Vandaiyar Irupu’ and then, had shifted him to an another Car bearing registration No.TN-A-1331 and proceeded to Thanjavur. A1 got out of the Car, stopped the Fiat Car and after snatching the bag containing Rs.2,30,000/- from PW-2, dropped PW-4 there and left. A case was registered in Crime No.227 of 2005 on the file of Needamangalam Police Station for offence u/s.365 IPC. Upon completion of investigation and filing of charge sheet informing commission of offences u/s.147, 364-A, 395 r/w 397, 394 r/w 397 and 392 IPC, the case, on committal, was tried in S.C.No.13 of 2007 on the file of learned Assistant Sessions Judge, Mannargudi.
3. Before trial Court, prosecution examined 20 witnesses and marked 28 exhibits. None were examined on behalf of defence nor were any exhibits marked.
3.1. PW-1, son of PW-4, spoke to his mother/PW-2 informing him of a phone call from unknown persons stating that they had kidnapped PW-4, that he would http://www.judis.nic.in 5 be released on payment of Rs.3,00,000/- and that the kidnappers threatened of kidnapping everybody if they dared to inform police. A6 and A7 overheard the conversation. PW-1 spoke to PW-3/his brother having given him a sum of Rs.1,00,000/-, of informing his motorcycle number to the abductors, of his proceeding to Vaduvur-Mannargudi road towards handing over the same, of A6 and A7 waylaying, beating and depriving him of the money. PW-1 spoke to one Chandrasekaran, sent by his brother, questioning him, of narrating the incident and of chasing A6 and A7 in a Car. PW-1 spoke to informing PW-3 of the occurrence and of preference of Ex.P1, complaint on 18.12.2005. PW-1 also spoke to having been informed that the accused were arrested after one month and that a sum of Rs.24,000/- had been recovered.
3.2. PW-2, wife of PW-4, spoke to having received repeated phone calls from abductors demanding ransom, of suspecting A6 and A7, since they tried to attend the phone calls on 17.12.2005, of A6 and A7 depriving PW-1 of Rs.1,00,000/-, of preference of complaint by PW-1 in the early hours of 18.12.2005, of receiving another phone call on 18.12.2005 at about 10.00 a.m. demanding ransom, of informing the abductors of A6 and A7 having done away with the money bag and of having only a sum of Rs.2,30,000/-. PW-2 spoke to abductors directing her to come with the money along with her son PW-3 in the Car owned by PW-4 and to be driven by PW-9. PW-2 spoke to an Ambassador Car http://www.judis.nic.in 6 bearing registration No.TN-A-1331 on the opposite side signaling by dipping the headlights when their Car was at Vaduvur line, of stopping their Car and showing a yellow colour bag containing cash. A1 snatched the money bag and let out PW-4. PW-2 spoke to narrating the occurrence to police and on their instructions, following them. PW-2 spoke to she, PW-3 and PW-4 having seen police and members of the public having caught A1 to A4 and PW-4 identifying them. PW-2 also spoke to PW-4 informing her of his having been kidnapped, of accused depriving him of Rs.5,000/- and a gold ring, of having seen A6 and A7, of accused beating him, of A6 and A7 leaving the secreted place informing other accused that they would watch what was happening at PW-4's house. PW-3, son of PW-4 has also spoken on the same lines.
3.3. PW-4 spoke to his having been kidnapped by accused, of demand for ransom over phone, knowing accused, asking them as to why they were acting thus and to accused beating him, A6 and A7 leaving the secreted place the next morning, he having been taken in an Ambassador Car to ‘Vandayar Irupu’ and then shifted to another Car, accused instructing him to identify his Car and his having done so, PW-2 showing a yellow colour bag, A1 snatching the same and letting him out. PW-4 also spoke to his having been enquired by police, who chased the Car of the accused after instructing them to follow and of police and public having caught hold of the accused.
http://www.judis.nic.in 7 3.4. PW-5, a resident of Orathur, spoke to knowing PW-4 and of attesting Ex.P2, observation mahazar and Ex.P3, seizure mahazar for MO-7 – a slipper.
3.5. PW-6, a resident of Nanpathur, spoke to knowing PW-4, of he and another having gone to Vaduvur after enquiring of the family members of PW-4, seeing police enquiring A1, attesting Ex.P5 – seizure mahazar for MO-8 and 9, cellphone and soori knife and Ex.P10, seizure mahazar for MO-10, cash of Rs.22,000/-.
3.6. PW-7, a resident of Nagar village, spoke to attesting Ex.P7, confession of A2 and Ex.P8 – seizure mahazar for MO-11, knife.
3.7. PW-8, a resident of Nagar village, spoke to attesting Ex.P9, confession of A3, Ex.P10 – seizure mahazar for MO-4 – Ambassador Car bearing registration No.TN-58-T-1447.
3.8. PW-9, a resident of Needamangalam, spoke to knowing PWs.1 to 4 and not knowing accused. PW-9 spoke to having driven the Fiat car on the request of PWs.2 and 3, of A1 snatching money bag from PW-2, accused letting off PW-4, police enquiring of PW-4 and chasing the accused, of escape of 4 persons in the Car and of police having the driver.
http://www.judis.nic.in 8 3.9. PW-10, Head Constable, spoke to following the Ambassador Car of the accused, of the same stopping opposite the Fiat Car used by PW-3 and others, of A1 collecting money and letting PW-4 out and subsequent chase of the Car used by accused and their apprehension. PW-11, Sub-Inspector of Police, PWs.12 and 13, Head Constables, have also spoken on similar lines.
3.10. PW-15, Inspector of Police, spoke to arrest of accused and seizure of material objects.
3.11. PW-16, Sub-Inspector of Police, spoke to having assisted the police personnel in arresting the accused and seizure of material objects.
3.12. PW-17, Doctor, spoke to treating PW-4 and of issuing Ex.P13 – Wound Certificate stating that the injuries were simple.
3.13. PW-18, Inspector of Police, spoke to arrest of A2, of recording his confession and of seizure of MO-11, knife, under Ex.P8.
3.14. PW-19, Inspector of Police, spoke to arrest of A3, of recording his confession and of seizure of MO-4, Ambassador Car bearing registration No.TN-58- T-1447, under Ex.P14.
http://www.judis.nic.in 9 3.15. PW-20, Inspector of Police, spoke to registration of case in Crime No.227 of 2005 for offence u/s.365 IPC, preparation of mahazars, examination of witnesses, recording their statements, arrest of accused, recording of confessions, seizure of material objects, alteration of First Information Report to reflect offences u/s.395 and 397 IPC, of forwarding the same to Court, of forwarding the seized articles to Court and on completion of investigation, filing of charge sheet informing commission of offences u/s.147, 364-A, 395 r/w 397, 394 r/w 397 and 392 IPC.
4. Accused were charged for offences u/s.364-A, 395 r/w 397, 392 r/w 395 and 392 r/w 402 IPC. Trial Court, on appreciation of evidence and materials on record has acquitted the accused of offences u/s.402, 392, 395 r/w 397, 392 r/w 395 and 394 r/w 397 IPC but convicted them for offence u/s.364-A IPC and sentenced him to 10 years R.I. and fine of Rs.7,000/- each i/d 1 year R.I. under judgment dated 08.12.2009.
5. State has preferred Crl.A.No.238 of 2011 quite rightly since offence u/s.364-A IPC is punishable with life imprisonment or death. When life imprisonment is the minimal punishment to which a person found guilty of offence u/s.364-A IPC can be punished. Imposition of punishment of 10 years R.I. clearly is erroneous.
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6. Heard learned senior counsel for appellants/accused and learned Additional Public Prosecutor for State.
7. We have hereinabove narrated the prosecution case merely to have the background thereof. State not having preferred any appeal against the acquittal of the accused for offences u/s.402, 392, 395 r/w 397, 392 r/w 395 and 394 r/w 397 IPC , we are required only to examine the propriety or otherwise of conviction for offence u/s.364-A IPC, as distinct from the sentence imposed.
8. The following is in evidence:
(i) PW-4, the person allegedly abducted, has, on his admission to hospital informed PW-17, Doctor, of an attack by 9 unknown persons. The said position is reflected in Ex.P13, Accident Register and PW-17, Doctor, has spoken thereto. Learned Additional Public Prosecutor would seek to explain that PW-4 might not have known his assailants when the act of abduction took place but he would have learnt their names and has identified them in Court since he had spent two long days in their custody. Further, PW-3, son of PW-4, had deposed that when PW-4 was questioned by police he had informed their names. This Court is unable to accept the submission of learned Additional Public Prosecutor since PW-4's admission at the hospital was only on 18.12.2005 and if http://www.judis.nic.in 11 indeed he had gathered knowledge of who his abductors/assailants were it stands to reason that he would have informed their names at the time of his admission into hospital.
(ii) Prosecution has examined PWs.2, 3, 4, 11, 12, 13 (a Head Constable) and 15 as persons, who were present at the time of interception of the accused by the police at ‘Orathur’ village. Excepting 1, 5 and 17, all other witnesses examined, allegedly were present at the time of interception. They have uniformily informed of the presence of several villagers on the occasion, some of them having spoken to the presence of about 20 persons, some to 50 and some to 100. Not a single independent witness has been examined and the prosecution has no explanation why.
(iii)According to the prosecution, the Fiat Car in which PWs.2 and 3 travelled towards meeting the accused for payment of ransom was driven by PW-9. PW-
9, though informs knowledge of the entire episode in the course of chief- examination, has, in cross, stated that no statement of his was recorded by the police. Learned Additional Public Prosecutor has pointed out that PW-9 has admitted to being present when the Ambassador Car used by the accused (MO-
5) was seized by the police. It has been pointed out by learned senior counsel that in respect of occurrence of 18.12.2005, 161(3) Cr.P.C. statement of PW-9 has reached the Court only on 11.08.2006 as admitted by PW-20, investigation officer, in cross-examination. Therefore, the evidence of PW-9 does not serve http://www.judis.nic.in 12 the purpose of the prosecution.
(iv)The defence has suggested to PWs.1, 2 and 4 that owing to political rivalry between one Sidhamalai Somasundaram and A6, a false case has been foisted at such persons instance. Though such suggestion has been denied by the prosecution witnesses this Court cannot ignore the admission of PW-9/driver that he earlier had been an employee of the said Sidhamalai Somasundaram. In circumstances where for the reasons informed herein above, the prosecution case becomes suspect, the defence submission of false implication also calls for consideration. Even if we are not to accept the defence contention, this Court would still find, for the reasons aforestated, that the offence u/s.364-A IPC stands not proved beyond reasonable doubt.
The Criminal Appeals are allowed. The conviction and sentence passed by learned Assistant Sessions Judge, Mannargudi, passed in S.C.No.13 of 2007 on 08.12.2009, are set aside. Appellants are acquitted of all charges. Fine, if any, paid shall be refunded. Bail bonds, if any, executed shall stand cancelled.
[C.T.S., J] [S.R.T., J] 18.12.2018 Index:yes/no Internet:yes gm http://www.judis.nic.in 13 To
1.The Assistant Sessions Judge, Mannargudi.
2.The Inspector of Police, Needamangalam Police Station, Thiruvarur District.
3.The Public Prosecutor, High Court, Madras.
http://www.judis.nic.in 14 C.T.SELVAM, J and S.RAMATHILAGAM, J gm Criminal Appeal Nos.815 of 2009 and 48, 68 & 77 of 2010 and 238 of 2011 18.12.2018 http://www.judis.nic.in