Madras High Court
Selvam vs The State Represented By on 7 January, 2008
Bench: M.Chockalingam, S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 07/01/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU C.A.NOS.523 of 2006 and 497 of 2007 Selvam ..Appellant in C.A.No.523 of 2006 Sekar alias Chandrasekar ..Appellant in C.A.No.497 of 2007 Vs. The State represented by Inspector of Police, Town North Police Station, Dindigul. (Crime No.141/2005) .. Respondent in both the appeals These criminal appeals have been preferred under Section 374(2) Cr.P.C. against the conviction and sentence imposed on the appellants by the learned Additional District and Sessions Judge, (FTC) Dindigul made in S.C.No.122 of 2005, dated 11.07.2006. !For Appellants ... Mr.N.Sathish Babu in C.A.No523 of 2006 Mr.A.P.Muthupandian in C.A.No.497 of 2007 ^For Respondent ... Mr.C.Daniel Manoharan, APP :COMMON JUDGMENT
(The judgment of the court was made by M.CHOCKALINGAM, J.) This judgment shall govern these two criminal appeals, namely C.A.No.523 of 2006 at the instance of A-2 and C.A.No.497 of 2007 at the instance of A-3. These two appellants were ranked as Accused 2 and 3 respectively.
2.These two appeals have arisen, challenging the judgment of the learned Additional District and Sessions Judge (FTC), Dindigul made in S.C.No.122 of 2005, whereby these appellants shown as A-2 and A-3 respectively along with the first accused, stood charged under sections 449, 302, 392 r/w 397 IPC. On trial, the appellants were found guilty as detailed below, A-2 - S.449 IPC - 10 years RI and Rs.500/- fine, in default to undergo 1 year RI
- S.302 IPC - Life imprisonment and Rs.1000/-
fine, in default 1 month RI.
- S.392 r/w - 7 years RI and Rs.500/- fine, 397 IPC in default 1 month RI A-3 - S.449 IPC - 10 years RI and Rs.500/- fine, in default to undergo 1 year RI
- S.302 IPC - Life imprisonment and Rs.1000/-
fine, in default 1 month RI.
In so far as A3 is concerned, he is acquitted of all other charges.
3.The short facts necessary for the disposal of these appeals could be stated thus:
a)P.W.1 is the husband of the deceased, one Gomathirani. P.Ws.2 and 3 are the children who were put in education. As usual, P.W.1, left for his work on 31.01.2005, came for his lunch and then left for his work at about 03.30 p.m. When he was in his office, he received a phone call from his son P.W.3.
Thereafter, he immediately rushed to his house, and he was informed by his son P.W.3 that three persons pushed him down, got inside the house, murdered his mother and robbed the jewels. P.W.4 has deposed that the first accused was related to her and also the deceased; that on the date of occurrence at about 04.00'o clock, the first accused accompanied by the other two accused came to the house and enquired whether she was employed in the house; that she found all of them getting inside the house; and that she left the house.
b)On coming to know about the said incident, P.W.1 proceeded to Dindigul North Police Station and gave a complaint Ex.P1 to the Sub Inspector of Police, who was at that time on duty. On the strength of the same, a case came to be registered in Crime No.141 of 2005 under Sections 449, 392 r/w 397 and 302 IPC. An Express FIR was despatched to the Court.
c)On receipt of the copy of the FIR, P.W.23, the Inspector of Police, took up the investigation, proceeded to the place of occurrence, made an inspection in the presence of witnesses and prepared Ex.P.18, the Observation mahazar and Ex.P.19, the rough sketch. Further, he recorded the statement of the witnesses. He conducted inquest on the dead body of the deceased in the presence of witnesses and panchayatdars and prepared Ex.P.30, the inquest report.
d)The dead body of the deceased was sent to the hospital for the purpose of autopsy. P.W.13, the Doctor, attached to the Dindigul Government Hospital, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and has issued Ex.P.5, the post-mortem certificate, wherein he opined that the deceased died out of the multiple injuries caused on her and also due to shock and haemorrhage.
e)Pending investigation, the Investigator arrested A-1 on 11.02.2005 and in the presence of the witnesses, he voluntarily made confessional statement, the admissible part of which was marked as Ex.P.22. Consequent upon the same, he produced M.Os.1 to 6, which were all jewels worn by the deceased, and also produced MOs.20 to 23. All were recovered in the presence of the witnesses under a cover of mahazar, which were sent to the Court on the very same day. A-2 was also arrested and he gave a confessional statement and the same was recorded, the admissible part of which is marked as Ex.P.17. Consequent upon the same, he produced M.O.7, gold chain, which was recovered under a cover of a mahazaar. Both A-1 and A2 were sent for judicial remand on 22.02.2005.
f)Following the same, the Investigator proceeded with the investigation further. A-3 surrendered before the Judicial Magistrate, Thakkalai. On request, police custody was ordered. Accordingly, he was taken, and when he was enquired, he gave a confessional statement in the presence of witnesses, the admissible part of which was marked as Ex.P.25. Thereafter, he took the Investigating Officer and produced a pair of bangles, which were marked as M.Os.8 and 9, and they were recovered in the presence of the witnesses under a cover of mahazar. All the material objects recovered from the place of occurrence, from the dead body of the deceased and from the accused, were sent for chemical analysis on a requisition given by the Investigating Officer to the concerned Judicial Magistrate. Ex.P.29, the Chemical analyst's report and Ex.P.30, the Serologist's report, were received. The Investigator, during investigation examined witnesses P.W.9, Assistant Manager of Lucky Lodge and also P.W.10, Room Boy, from whom he came to know that all these three accused involved in this case have actually stayed over there on 30.01.2005 and also recovered the register maintained by the Lodge, in order to show that they stayed over there. On completion of the investigation, the Investigating Officer has filed the final report before the concerned court.
g)The case was committed to the court of sessions and necessary charges were framed. Since the first accused even before the trial commenced died, it was recorded as abated and the case was proceeded against these two accused- appellants. In order to substantiate the charges, the prosecution relied on 25 witnesses and also 30 Exhibits and 25 M.Os. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses. They denied them as false. No defence witness was examined. The lower court, after hearing the arguments of the counsel and considering the available materials, took the view that the prosecution has proved the case beyond reasonable doubt and found both these accused guilty. In so far as A-2 is concerned, he was found guilty under Sections 449, 302, 392 read with 397 and in so far as A-3 is concerned, he was found guilty only under Sections 302 and 449 and in respect of the third charge, he was acquitted. Under these circumstances, these criminal appeals have arisen before this court.
4. The learned counsel for the appellants with vigour and vehemence would submit that the lower Court should have rejected the prosecution case outright since the prosecution had no evidence to offer. Insofar as the witnesses examined from the Lodge, at the best it would indicate that both of them were staying in the lodge, but it would not be pointing to the guilt. So far as the witnesses P.Ws.4, 5 and 6 were concerned they were all not only related but also they have not spoken anything connecting the accused with the crime and their evidence would not at all be helpful. The only evidence on which the case of the prosecution was rested is that of P.W.3, a 6 year old boy and also the so called recovery. As the recovery alleged to have been made from A-3 was concerned, since the witnesses have turned hostile, the trial Court was not prepared to believe that part of the evidence and insofar as the evidence of the child witness was concerned, a duty is cast upon the prosecution to conduct an identification Parade, but for the reasons best known to the Investigator, it was not done. When the child witness was examined in Court, though the witness has deposed in the chief examination that the accused persons who were inside the dock, have committed the crime along with the other person, at the time of cross-examination, the witness categorically admitted only on instruction of police, he had spoken like that. Under such circumstances, the lower Court should have rejected the evidence of child witness. Since the evidence of the child witness was not only doubtful but also his presence is highly unreliable at the time of occurrence, the lower Court should not have accepted the same. In so far as the alleged recovery of the jewel M.O.7 from P.W.15, a jeweler, on 11.2.2005, pursuant to the confession alleged to have been made by A2, a careful scrutiny would indicate that it is not worth mentioning evidence. The lower Court should have rejected that evidence. While the lower Court was not prepared to believe the confession and recovery in respect of A-3, it is highly surprising to note that the Court has believed the evidence adduced by the prosecution in respect of the confession and recovery alleged to have been made from P.W.15 at the instance of A-2 and thus it is not a case where the prosecution lack in evidence, but it is a case where the prosecution had no evidence at all and hence the lower Court should have entered the Judgment of acquittal, but failed to do so, and hence, both the appeals have got to be allowed, acquitting the appellants.
6.The court heard the learned Additional Public Prosecutor on the above contentions.
7.The court has paid its anxious consideration on the submissions made and also scrutinized the materials available.
8. It is not in controversy that one Gomathirani, wife of P.W.1 and mother of P.Ws.2 and 3, was murdered and found dead and all jewels which have been marked as M.Os.1 to 9, were robbed. P.W.13, the Doctor has issued the Post Mortem certificate opining that she died out of multiple injuries and also shock and hemorrhage and the said fact is also not controverted by the appellants at any stage of the proceedings and hence it can be safely recorded that she died on account of homicidal violence.
9. Now the question that arose for consideration before the lower Court was that whether these accused appellants along with one Rave made criminal trespass into the house for the purpose of looting and also whether for that purpose, they caused the murder of said Gomathirani. As rightly pointed out by the learned counsel for the appellants, at the best, the evidence that was recorded by the lower Court from the staff of the Lucky Lodge, Dindigul, would be pointing to the fact that all of them stayed over there on 30.01.2005, but that cannot be a piece of evidence pointing to the guilt of the accused. In the instant case as far as P.Ws.4, 5 and 6 were concerned, they were all not only relations, but they have not spoken anything, and they have also turned hostile, and thus their evidence was not available for the prosecution. Admittedly, P.Ws.1 and 2 came to the place of occurrence, after it was over, and thus, the prosecution was left only with the evidence of P.W.3, who is a child witness, aged 6. The Court is mindful of the caution made by the Apex Court that before accepting the child evidence, the Court must exercise more care and in the instant case, while the witness was only 6 years old, and that was the only piece of evidence, on which the prosecution was to rely, the Investigating Agency should have conducted the Identification Parade, but it has not done so. But, the witness was brought before the Court, and the child witness has identified both the accused before the Court. The conduct of the Identification Parade in a given case is not mandatory. The Court can accept the evidence of the witness identifying the assailants or culprits only at the time of trial. But, in the instant case, the witness was only a 6 year old boy and apart from that, on scrutiny of the evidence of the child witness P.W.3, the Court has to consider whether the evidence of P.W.3 can be accepted to sustain a conviction. At the time of chief examination, the witness has spoken to the effect that both these accused/appellants along with other accused were present at the time of the crime, that they pushed him down, proceeded inside the house, stabbed her mother and robbed the jewels, but at the time of cross examination, the witness has categorically stated that his evidence was only on the instruction of the police. It is true that after the cross examination was over, the Court has asked the question, of these two answers, which was correct? and the witness has spoken that he was telling what he actually witnessed. After going through such evidence, the Court is of the opinion that since it is the only evidence available, which is unclear to accept such a child witness, who has given contradictory version before the Court and that too in a case where not even an Identification Parade was conducted, it raises a doubt in the mind of the Court that the fact that the Identification Parade in the instant case was not conducted by the prosecution would reveal that the Investigating Agency would have thought it risky, and hence it was not conducted, and in the absence of P.W.3's evidence, the prosecution was left only with the recovery. Insofar as A-3 was concerned, the lower Court was not prepared to accept the case of the prosecution as to the recovery since the witness examined for the recovery has turned hostile, and hence, the lower Court has acquitted that accused in respect of robbery. Insofar as A-2 was concerned, the only material available for prosecution was the recovery of M.O.7 from a jeweler P.W.15, who was identified by A-2. Therefore, in the absence of any evidence that it was these accused who made criminal trespass and have robbed the jewels by murdering the deceased, the only available evidence that could be best relied on to find them guilty would be insofar as the receiver of the stolen property and from the evidence, it could be seen that within a period of reasonable time, the jewels were found in the possession of A-2. Under such circumstances, it was for him to explain how he came to be in possession of those jewels M.O.7, Bangles, which belonged to the deceased. Hence, A-2 can be termed as receiver of the stolen property, and can be found guilty under Section 411 IPC and awarding of 3 years Rigours imprisonment would meet the ends of justice. Insofar as the other charges, it has got to be set aside. Insofar as A-3 is concerned, he has got to be acquitted of the charges under sections 302 and 449 IPC.
11.In the result, the conviction and sentence imposed on A-2 are modified and he is convicted under Section 411 of IPC and sentenced to undergo three years R.I. The sentence already undergone by A-2 is ordered to be given set off. A-2 is acquitted of other charges. Insofar as A-3 is concerned, the conviction and sentence imposed on him are set aside, and he is acquitted of all the charges. The fine amounts, if any, paid by the appellants will be refunded. With the above modification in conviction and sentence, these criminal appeals are allowed.
rg To
1.The Additional District and Sessions Judge, (FTC) Dindigul
2. Inspector of Police, Town North Police Station, Dindigul.
3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.