COMP.A/1804/2002 of Vs on 26 December 2002

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 21/07/2003

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

C.A.No.1804 of 2002

Mariappan @ Muthu .. Appellant

-Vs-

State by:Inspector of PoliceVellianaai Police StationKarur District .. Respondent This criminal appeal is preferred under Sec.374(2) of The Code ofCriminal Procedure against the judgment of conviction and sentence passed bythe Assistant Sessions Judge, Karur, made in S.C.No.136 of 1994 and dated13.11.2002.

!For Appellant : Mr.S.Govindarajan

^For Respondent : Mr.V.Jaya Prakash NarayananGovernment Advocate (Crl. Side):JUDGMENT

The appellant/accused, who stood charged, tried and found guilty underSs 395 and 397 of I.P.C. and sentenced to 10 years R.I. each has broughtforth this appeal. Since the other accused were absconding, the case wassplit up and was committed to the Court of Sessions only in respect of theappellant.

2. The short facts necessary for the disposal of this appeal can bestated as follows:

(a) P.W.1 Nagulsamy was living with his wife P.W.2 Arukkani and hisdaughter P.W.3 Thamizharasi in Kathavadi Village, Karur District. On10.12.1990 at witch hour, when P.Ws.1 to 3 were sleeping, the doors of thehouse were knocked by the accused. When P.W.1 opened the doors, the appellantalong with seven others namely Solan @ Murugan, Karuppasamy @ Karuppu, Siva @Sivan, Verran, Rajenderan, Chandiran and Malaichami armed with deadly weaponsmade illegal entry into the house with the common intention of committingdacoity and locked the door from inside. The appellant wielded his knifeagainst P.W.1 on his left hand, while all other assailants were threateningthe witnesses with knife. They looted gold jewels namely M.Os.1 to 4 worthabout Rs.1 6,000/- and a cash of Rs.100/- and fled away from the site ofoccurrence. P.Ws.2 and 3 have also witnessed the occurrence. P.W.1 proceededto Velliyanai Police Station and lodged Ex.P1 complaint to P.W.8

Vijayasekaran, Sub Inspector of Police (Crimes), who on the basis of Ex.P1registered a case in Crime No.420/90 under Ss 457 and 395 of I. P.C. Ex.P8printed F.I.R. was despatched to the concerned Judicial Magistrate's Court,while the copies were sent to the higher officials. P.W.1 was sent to theGovernment Hospital, Karur with a medical memo for treatment. P.W.7Dr.P.Arumugam attached to the Government Hospital, Karur treated P.W.1 on11.12.1990 at 9.00 A.M. and issued Ex.P7 wound certificate. P.W.10Panneerselvam, Inspector of Police, Karur Taluk Police Station, on receipt ofthe copy of the F.I.R., took up the investigation, proceeded to the site ofoccurrence and prepared Ex.P11 observation mahazar in the presence of thewitnesses and Ex.P12 rough sketch. The Investigating Officer examined P.Ws.1to 4 and recorded their statements and informed the same to finger printexperts and sniffer dog wing to inspect the occurrence place.(b) P.W.11 K.Thiagarajan, Inspector of Police, Udumalaipet (Crimes)while investigating the cases in Crime Nos.7/91 and 9/90, on 9.4.199 1arrested the absconded accused namely Chandiran and Rajendiran and recordedtheir confessional statements and on the basis of the confessions, he maderecoveries. On 20.4.1991 at about 7.45 P.M., P.W.11 arrested the appellantalong with the absconded accused namely Siva @ Sivam and Karuppu @ Karuppasamyin Crime No.420/90 and recorded their confessional statements in front ofP.W.5 and one Rajendran. The admissible portion of the confessional statementmade by the appellant is marked as Ex.P13. Pursuant to the said confession,the accused took P.W.11 to Madurai, where M.O.1. gold necklace, M.O.2(series) 3 gold rings, M.O.3 (series) gold bangles and M.O.4 (series) goldstuds were recovered from P.W.6 Ramesh, a Jeweller under Ex.P14 mahazar. Theaccused were sent for remand. On 25.4.1991 P.Ws.1 to 3 identified theirproperties at Udumalaipet Police Station to P.W.11. P.W.11 examined P.Ws.1 to3 and recorded their statements. Thereafter, on 20.5 .1991, the InvestigatingOfficer took the custody of the appellant and other accused for interrogationin respect of the other cases. P. W.11 made a request for conducting testidentification parade in respect of the appellant and other accused before theconcerned Court. P.W.9 Mr.Thangakani, Judicial Magistrate No.II, Karurconducted test identification parade in respect of the appellant and the otherabsconded accused on 10.5.1991 at Central Prison, Tiruchy and prepared Ex.P9identification parade report. P.W.12 T.M.Ambigapathy, Inspector of Police(Crimes), Karur Taluk Police Station took up further investigation, verifiedthe records, examined the witnesses, recorded their statements, received thecase properties from P.W.11 and produced before the Judicial Magistrate No.I,Karur. On completion of the investigation, he filed a charge sheet againstthe appellant and other accused on 30.8.1991. Since the other accused whowere arrested absconded, the case was split up and the appellant was committedto the Court of Sessions for the conduct of the trial.3. In order to prove the charges levelled against the accused, theprosecution examined 12 witnesses and marked 16 exhibits and 4 materialobjects. After the completion of the evidence on the side of the prosecution,the accused was questioned under S.313 of Cr.P.C. as to the incriminatingcircumstances found in the evidence of the prosecution witnesses, and theaccused flatly denied the same as false. No defence witness was examined. Onconsideration of the rival submissions and scrutiny of the availablematerials, the trial Court found the appellant/accused guilty under Ss 395 and397 of I.P.C. and sentenced him to undergo the imprisonment, as stated supra.

4. Advancing his arguments for the appellant, the learned Counsel

4. Advancing his arguments for the appellant, the learned Counsel made the following submissions for consideration by this Court:There were vital discrepancies in the evidence of the eyewitnessesnamely P.Ws.1 to 3 regarding the year of occurrence, the manner in which theoccurrence had taken place and the number of assailants, and thus, theevidence of the so-called eyewitnesses was not trustworthy at all and ought tohave been rejected by the trial Court. The lower Court should have rejectedthe test identification parade, since it was not at all admissible in evidenceas the eyewitnesses P.Ws.1 to 3 have categorically admitted that after thearrest of the accused and before the identification parade was held, all ofthem were shown to the eyewitnesses at the Udumalpet Police Stati on and alsolater at Sub Jail, Karur. The arrest of the accused, the confession andrecovery based on the confession are all not trustworthy and reliable, as theeyewitnesses and other witnesses differ on material particulars. Thewitnesses examined for the alleged confession and recovery namely P.Ws.5 and 6both have turned hostile, and thus, their evidence was not available for theprosecution. Even then, the trial Court has relied on their evidence torecord a conviction. P.W.4 a witness for the observation mahazar has alsoturned hostile, and thus, the lower Court without any evidence to prove thenexus between the appellant and the crime in question has found him guilty,and hence, he is entitled for an acquittal in respect of the charges levelledagainst him.

5. Strongly opposing the above contentions of the appellant's side, the learned Government Advocate (Criminal Side) would submit that P. Ws.1 to3 have clearly narrated the occurrence and have identified the appellant alsonot only in the identification parade, but also in the Court, and thus, theinvolvement of the appellant in the said dacoity along with the others wasclearly proved by the prosecution; that the properties namely jewels whichwere marked as M.Os.1 to 4, belonged to P.W.1 and the same was never disputedby the appellant, and those properties were recovered from P.W.6 a jeweller,pursuant to a confession given by the appellant/accused recorded in thepresence of P.W.5 and another; that it is true that P.W.5 has turned hostile,and P.W.6 from whom the properties were recovered has also turned hostile, butthose recoveries have been clearly proved by the prosecution through theevidence of the Investigating Officer, and hence, the prosecution has provedthe nexus between the appellant and the crime in question, and therefore, thejudgment of the lower Court has got to be sustained.

6. This Court paid its full attention on the available materials and the rival submissions made.

7. As seen above, the gist of the prosecution case was that when P.W.1 along with his wife and daughter examined as P.Ws.2 and 3 respectively wassleeping in his residence on 10.12.1990 at witch hour, the house doors wereknocked; that when the doors were opened by P.W.1, the appellant/accusedaccompanied by 7 more assailants unlawfully trespassed into the house; thatall the assailants including the appellant were armed with deadly weapons;that the appellant attacked P.W.1 with knife on his left hand, and underthreat, the assailants looted Rs.16,000/- worth gold jewels and a cash ofRs.100/- and fled away from the scene of occurrence. In order to bring homethe guilt of the accused, the prosecution much relied on the testidentification parade conducted by P.W.9 Judicial Magistrate and the recoveryof M.Os.1 to 4 from P.W.6 Jeweller pursuant to the confessional statement made

by the appellant/accused in the presence of P.W. 5 and other witness.Accepting the said evidence, the lower Court has recorded a conviction againstthe appellant. This Court is of the view that the evidence adduced by theprosecution both on the identity of the appellant/ accused and the recovery ofthe material objects, pursuant to the confessional statement alleged to havebeen given by the appellant cannot be accepted for more reasons than one.8. The occurrence has taken place on 10.12.1990 at witch hour. Thetest identification parade on the requisition by the Investigating Officer wasconducted on 10.5.1991. According to the Investigating Officer, the appellantalong with others was arrested in connection with two other crime numbersnamely 7/91 and 9/90 on the file of the Inspector of Police, Udumalpet, and onthe arrest, the appellant made a confessional statement voluntarily in thepresence of P.W.5 and one Rajendran. The only independent witness examined bythe prosecution as to the confessional statement made by the appellant i.e.P.W.5 has turned hostile. While so, the prosecution should have examined theother witness in that regard. But, the prosecution has failed to do so. Theprosecution has not even tendered any explanation why the other witness wasnot examined. According to the prosecution, pursuant to the said confession,the jewels were recovered from P.W.6 Jeweller at Madurai. The said witnesshas also turned hostile. M.Os.1 to 4 were marked by the prosecution statingthat they were the subject matter of dacoity. But, P.W.1 has categoricallyadmitted that he took the properties from the custody of the Court and haschanged them, and thus, it would be abundantly clear that M.Os.1 to 4 whichwere shown to P.W.1 and marked at the time of trial, were not the subjectmatter of dacoity. Under the stated circumstances, no reliance could beplaced either on the alleged confession or the recovery to connect theappellant/accused to the crime.

9. The prosecution has also relied on the test identification paradeconducted by the Judicial Magistrate No.II, Karur. It is true that the saidJudicial Magistrate has been examined as a witness. He has also deposed thatthe prosecution witnesses have identified this appellant along with the otheraccused. But, it remains to be stated that the test identification parade hastaken place only on 10.5.1991 at the Central Jail, Tiruchy. It is pertinentto note that P.Ws.1 to 3 have categorically admitted that the accused wereshown to them on 2 5.4.1991 at the Police Station, Udumalpet. Needless to saythat even before the identification parade was conducted, the appellant wasshown to the prosecution witnesses. In such circumstances, they could easilyidentify the accused at the time of the identification parade which took placesubsequently, and hence, no evidentiary value could be attached to the testidentification parade .

10. The lower Court without considering the above aspects of thematter has relied on both the alleged arrest and recovery and the testidentification parade in order to record a conviction, which for the reasonsstated above, cannot be accepted. Hence, the Court is of the firm view thatit would be highly unsafe to base a conviction against the appellant/accusedin the light of the above reasons. The judgment of the lower Court has got tobe necessarily set aside, and the appellant/accused is entitled for anacquittal of the charges against him.

11. In the result, this criminal appeal is allowed, setting aside the judgment of conviction and sentence passed by the lower Court. Theappellant/accused is acquitted of the charges levelled against him. The appellant/accused is directed to be set at liberty forthwith, if he is notrequired in any other case.

Index: YesInternet: Yes

To:

1) The Assistant Sessions Judge, Karur.2) The Principal Sessions Judge, Karur.3) The Superintendent, Central Prison, Madurai.4) The Public Prosecutor, High Court, Madras.5) The D.I.G. of Police, Chennai 4.6) Mr.V.Jaya Prakash Narayanan, Government Advocate(Crl. Side), High Court, Madras.7) The Inspector of Police, Velliannai Police Station,Karur District.

nsv/