BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03/04/2007 CORAM THE HON'BLE MR. JUSTICE M. CHOCKALINGAM AND THE HON'BLE MR. JUSTICE P.R.SHIVAKUMAR Crl.Appeal (MD) Nos.72, 285 of 2005 Saravanan .. Appellant in Crl.A.(MD)No.72 of 2005 Accused No.1 Raja Kannan .. Appellants in Crl.A. (MD)No.285 of 2005,A2 and A3 -Vs- State rep. by The Inspector of Police, Melur Police Station, Madurai District. .. Respondent Complainant Appeals filed against the conviction and sentence passed by the Additional District and Sessions Judge, Fast Track Court NO.III, Madurai in s.C.No.159 of 2002 dated 16.9.2004. For Appellants : Mr.G.Bhaghavath Singh for A1 Mr.K.Jeganathan for A2 and A3 For Respondent : Mr.V.Kasinathan Addl.Public Prosecutor :JUDGMENT
Judgment of the Court was delivered by M.CHOCKALINGAM,J.
This judgment shall govern these two appeals, viz., Crl.A.(MD) No.72/2005
preferred by A1 and Crl.A.(MD) No.285/2005 preferred by A2 and A3. These three
appellants who stood charged, tried and found guilty under Sections 458, 460,
302 read with 34 and 380 IPC and awarded five years rigorous imprisonment along
with a fine and default sentence in respect of the first charge, two years
rigorous imprisonment along with a fine and default sentence in respect of the
second charge, life imprisonment along with a fine and default sentence in
respect of the third charge and one year rigorous imprisonment along with a fine
and default sentence in respect of the fourth charge, have brought these appeals
before this Court.
2.The short facts necessary for the disposal of this appeal can be stated
thus:
(a)P.W.3 is the daughter of the deceased, Sahul Hammed @ Chellappa. The
son of the deceased is an Engineer working in United States. P.W.1 is the
nephew of the deceased. During the relevant time, the deceased, an elderly
person, was living alone. He was assisted by the first accused, Saravanan,
occasionally. At the time of his visit, the first accused developed an
intention of causing theft of the movables in the house of the deceased. He
required on assistance and so, he had the assistance of A2 and A3. Accordingly,
all the three accused, having an intention of committing theft, made lurking
house trespassing in the night. They went inside the house, caused the death of
the deceased by throttling and smothering at about 3.00 a.m. on 20.3.2002. They
have stolen the movables from the house, viz., 2 cameras, one remote controller,
CD player etc.
(b)P.W.1 who was working as a loadman, returned from his work at about
3.00 a.m. on 20.3.2002 and found that the lights were burning inside the house
of the deceased. He entertained suspicion and knocked the doors. But he could
not get an answer. He had the assistance of the near relatives and when he went
over there, he found the back door was kept open and all of them got inside the
house. They found the dead body of the deceased on the cot. P.W.1 informed the
same to P.W.3, the daughter of the deceased, at Karur and she came in the
morning. P.W.1 proceeded to the respondent Police Station and gave a complaint
to P.W.11, the Sub Inspector of Police, which is marked as Ex.P.1, on the
strength of which a case came to be registered in Crime No.159/2002 under
Sections 452 and 302 IPC. The Express Report, Ex.P.14, was despatched to the
Court. P.W.12, the Inspector of Police, on receipt of the copy of Ex.P.14, took
up investigation, proceeded to the scene of occurrence, made an observation of
the place of occurrence in the presence of witnesses and prepared Ex.P.2-the
Observation Mahazar and Ex.P.15-the rough sketch. He conducted inquest on the
dead body in the presence of witnesses and panchayatdars from 7.00 a.m. to 9.30
a.m. that day and prepared Ex.P.17-the Inquest Report. He also enquired the
witnesses and recorded their statements. P.W.9, the Finger Print Expert, was
called for, who took finger prints from the place of occurrence.
(c)Following the inquest, the dead body of the deceased was sent for the
purpose of autopsy to Melur Government Hospital. One Euphes Shiegela Bai, the
doctor, attached to the said hospital conducted the postmortem of the deceased.
Since the said doctor died, P.W.8, the doctor, attached to the said hospital,
based on the Postmortem findings of the Late Dr.Euphes Shiegela Bai, has opined
in Ex.P.12, the Postmortem Certificate, that the deceased would appear to have
died by Asphyxia due to throttling and smothering.
(d)Pending investigation, P.W.12, the Investigating Officer, arrested A2
and A3 on the same day, i.e., 20.3.2002, at about 5.00 p.m. A2 voluntarily
came forward to give a confessional statement which was recorded in the presence
of witnesses, the admissible part of which is marked as Ex.P.5, pursuant to
which M.O.4-a camera and M.O.7-the knife were recovered under a cover of
Mahazar, Exs.P.6 and 7 respectively. A3 also voluntarily came forward to give a
confessional statement which was also recorded in the presence of the same
witnesses, the admissible part of which is marked as Ex.P.8, pursuant to which
M.O.5-Remote control, M.O.6-a CD Player and M.O.8-a Gunny bag were recovered
under a cover of Mahazar, Ex.P.9. On 03.08.2003, the Investigating Officer
arrested A1. A1 came forward to give a confessional statement, the admissible
part of which is marked as Ex.P.10, pursuant to which M.O.9-a camera was
recovered under a cover of Mahazar, Ex.P.11. All the accused were sent for
judicial remand. P.W.9, the Finger Print Expert also found that all the finger
prints taken at the place of occurrence tallied with the finger prints available
with the Investigating Officer and has given his opinion to that effect in
Ex.P.13, the Finger Print Expert Report. On completion of the investigation,
the investigating officer filed the final report.
3.The case was committed to Court of Sessions. Necessary charges were
framed. In order to substantiate its case, the prosecution marched 13 witnesses
and also relied upon 18 exhibits and 9 material objects.
4.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 the prosecution witnesses and they denied
them as false. No defence witness was examined. The Trial Court heard the
arguments advanced on either side, scrutinised the materials, took the view that
the prosecution has proved its case beyond reasonable doubt, found the
accused/appellants guilty as per the charges and awarded the punishments as
referred to above, which is the subject matter of challenge before this Court in
this appeal.
5.Advancing his arguments on behalf of the appellant/accused,
Mr.G.Bhagavath Singh, learned counsel appearing for A1 and Mr.K.Jeganathan,
learned Counsel appearing for A2 and A3, inter-alia made the following
submissions:
(a)The gist case of the prosecution is that A1 to A3 lurked into the house
of the deceased at about 3.00 a.m. on 20.3.2002 and there is no eye witness to
the occurrence at all and they have murdered the deceased and also stolen the
material objects which were produced before the Court. Insofar as, the trespass
or theft or the act of murder, there is no evidence available for the
prosecution. Even according to P.W.1, the prosecution case was that A1 used to
assist the deceased on occasions and the only witness to that effect is P.W.1.
Even P.W.1, at the time of cross examination would admit that he had no direct
knowledge about the assistance rendered by A1 to the deceased. Insofar as A2
and A3, they were utter strangers and thus, in that regard, no evidence was
available to link them with the crime.
(b)The learned counsel submitted that before the trial Court, the
prosecution relied upon two pieces of evidence which were accepted by the lower
Court-firstly, the Finger Print Expert’s opinion, which is marked as Ex.P.13
and secondly, the recovery of the material objects from all the three accused,
consequent upon their confessional statements alleged to have been made.
(c)Added further, the learned counsel that both the above stated evidences
should have been rejected by the Trial Court outright. But, the Trial Court has
not done so. Insofar as the Finger Print Expert’s opinion, according to P.W.9,
the Finger Print Expert, all the finger prints were not taken by him and the
finger prints that were originally produced by the Investigating officer were
compared with the finger prints taken by the Finger Print Expert. Thus, it
would be quite clear that the finger prints were not taken either with the
permission of the concerned Judicial Magistrate or on his order or as per the
Police Standing Orders or with the prior permission of Superintendent of Police
who is required to issue orders for taking such finger prints. Thus, the
learned counsel submitted that the procedural guidelines for taking finger
prints has not been strictly followed. He also placed reliance on the decision
of this Court in Suresh @ Sureshkumar @ Thennarasu and Alagar @ Alagarkumar Vs.
State.by Inspector of Police, G-2, Karimedu Police Station, Madurai District
reported in 2004-2-L.W.(Crl.) 814.
(d)The learned counsel for the appellant further submitted that in view of
the opinion of P.W.9, the Finger Print Expert, the finger prints available,
which were not taken procedurally, is of no evidentiary value and no evidentiary
value could be attached to his report. Added further, the learned counsel that
the other piece of evidence is only the recovery of the material objects. It is
true that through P.W.3, the daughter of the deceased, the material objects have
been proved to be belonged to the deceased. The only witness examined for the
purpose of arrest and alleged confession, recovery and all the material objects
was only P.Ws.5,6 and 7 and at the time of cross examination made by the defence
side, their evidence has become shaky and apart from this, once the prosecution
was unable to show by a clear evidence as to the arrest, confession and recovery
of the material objects, though it has been proved that the recovered material
objects belonged to the deceased, even presumption available under illustration
(a) of section 114 of the Indian Evidence Act cannot be availed by the
prosecution. But the Lower Court has not taken into consideration that aspect.
In the absence of any evidence, the lower Court has found the accused guilty as
per the charges stated above. He also further submitted that it is not only the
case where it lacks in evidence but also bereft of evidence and hence, the
accused are entitled for acquittal in the hands of this Court.
6.The Court heard the learned Additional Public Prosecutor on the above
contentions and paid its anxious consideration on the submissions made and made
a thorough scrutiny of the materials available.
7.In the instant case, it is not a fact in controversy that Sahul Hammed @
Chellappa was done to death in an incident that took place during night hours at
about 3.00 a.m. on 20.3.2002. Following the inquest made by the Investigating
Officer, the dead body was subjected to postmortem. P.W.8, the doctor, attached
to Melur Government Hospital, has opined in Ex.P.12, the Postmortem certificate,
that the deceased would appear to have died out of Asphyxia due to throttling
and smothering. The fact that the deceased died out of homicidal violence was
never questioned by the accused at any stage of proceedings and hence, it can be
factually recorded so.
8.Insofar as the gist of the case, the prosecution has revealed from the
materials available that the first accused was actually assisting the deceased
on occasions and he planned to steal the movables from the house of the
deceased. A1 had the assistance of A2 and A3 and they made lurking house
trespass during night hours on 20.3.2002, where all the accused after causing
the death of the deceased, took away all the material objects which were marked
as M.Os.4 to 9.
9.In the instant case, in respect of criminal trespass or for causing
death or for stealing the properties of the deceased, no direct evidence is
adduced by the prosecution. But, the prosecution relied only on two
circumstances, viz., P.W.9, the Finger Print Expert’s opinion and the recovery
of the material objects. It was P.W.13, the Inspector of Police who summoned
P.W.9, the Finger Print Expert, who went to the spot and took the finger prints
from the place of occurrence. P.W.9, has deposed that all the finger prints
were not taken by him and he compared the finger prints taken by him with that
of the finger prints originally produced by the investigating officer and on
verification, it was found tallied with that of A3 and he has given Ex.P.13,
Finger Print Expert Report, to that effect. The Lower Court has also accepted
and relied upon this piece of evidence. But, this Court is afraid whether this
piece of evidence can be accepted or not, since the procedural formalities as
required under law were not strictly followed either by P.W.12, the Investigator
or by P.W.9, the Finger Print Expert. In the instant case, according to P.W.9,
all the finger prints were not taken by him. But, the finger prints were
produced by the Investigator and thus, they were actually compared with the
available prints. Now, it is pertinent to point out that as per the Police
Standing Orders and in Identification of the Prisoners Act, same guidelines were
available to follow procedural formalities which are mandatory in character. As
per the Identification of the Prisoners Act, the Investigating Officer must
obtain permission from the Magistrate concerned and then, the finger prints of
the accused shall be taken. Apart from this, as per section 801(k) of the
Police Standing Orders, the finger print of the accused shall be taken under the
orders of the Superintendent of Police. But, in the instant case, either the
provisions under the Identification of the Prisoners Act or the Police Standing
Orders has not been followed strictly. But, these provisions are mandatory in
character and thus, so long as mandatory provisions are not strictly followed or
adhered to, without any hesitation, the report given by P.W.9, the Finger Print
Expert, though tallying, cannot be attached any evidentiary value. Hence, the
finger print Expert’s opinion given in Ex.P.13, is of no significance under law
and thus, it has got to be rejected. But, the lower Court has not considered
the legal aspect of the same and has accepted it.
10.Insofar as the arrest, confession and the recovery of material objects,
according to the prosecution, A1 was arrested on 3.8.2003 and has given his
confessional statement in the presence of witnesses P.Ws.6 and 7, the admissible
part of which is marked as Ex.P.10, pursuant to which M.O.9, a camera was
recovered under a cover of Mahazar, Ex.P.11. Similarly, A2 and A3 were arrested
on the very day of occurrence, i.e., 20.3.2002 and they gave their confessional
statements in the presence of witnesses, the admissible parts of which are
marked as Exs.P.5 and 8 respectively, pursuant to which M.O.4-a camera, M.O.7-a
Knife were recovered under the cover of Mahazars Exs.P.6 and 7 and M.O.5-Remote
control, M.O.6-CD Player and M.O.8-a gunny bag were recovered under a cover of
Mahazar Ex.P.9. Witnesses to that effect were examined. The Court is unable to
agree with the learned counsel that the prosecution has not proved either the
arrest, confession or the recovery of the material objects, since witnesses have
been examined to that effect and their statements have been recorded and hence,
the evidence as to the arrest, confession and recovery of material objects from
A1, A2 and A3 as referred to above remains unshaken, despite cross examination
in full. Thus, the prosecution has brought their evidence before the Trial
Court and it has been accepted. At the same time, the Court has to necessarily
state that merely because of the recovery of the material objects as stated
above, though proved to be belonged to the deceased through the evidence of
P.W.3, the daughter of the deceased, the Court cannot come to the conclusion
that A1 to A3 were available at the time and place of occurrence or they have
committed the act of murder. At best, they can be found guilty either as the
persons who have stolen or as the persons who are the receivers of the stolen
property and hence, they are found guilty under Section 411 IPC.
11.Also, they were found guilty under Section 302 IPC only on the basis of
the only piece of evidence available, i.e., the recovery of the material objects
pursuant to their confessions. All the material objects were actually belonged
to the deceased. At the time of arrest and confession, the accused were unable
to put forth any explanation as to how they came into possession of the material
objects which originally belonged to the deceased. It is true, that presumption
under illustration (a) of Section 114 of Indian Evidence Act is rebuttable in
character. But the accused have not rebutted the presumption by tendering any
explanation as to the custody of those material objects which belonged to the
deceased.
12.Insofar as M.O.7-the knife, as put forth by the learned counsel for the
appellants, though it has been recovered from A2 pursuant to his confessional
statement, the prosecution, in no way, is able to show either it is the weapon
of crime or it was used by the accused for committing any offence thereon and
the prosecution has not brought any evidence in that regard. Hence, the
recovery of M.O.7-the knife from A2, as put forth by the prosecution, has got to
be rejected.
13.Under such circumstances, it is a fit case where the Court has to
invoke section 411 IPC and award punishment and they are not found guilty of
murder and hence, this Court is of the considered view that it is a fit case
where the conviction and sentence under section 302 read with 34 IPC can be
modified to one under section 411 IPC and awarding 3 years of rigorous
imprisonment would meet the ends of justice. Insofar as, the application of
other provisions, i.e., under Sections 458 and 460 IPC, the Court is of the
opinion that the
prosecution had no direct evidence or circumstantial evidence and hence, they
are set aside. Insofar as conviction and sentence under Section 380 IPC, the
lower Court has found the accused/appellants guilty and has rightly awarded one
year rigorous imprisonment along with a fine and default sentence.
14.Hence, the conviction and sentence imposed by the trial Court on the
appellants under Sections 458 and 460 IPC are set aside and they are acquitted
of those charges. The fine amount, if any paid by them, under Section 458 and
460 IPC, shall be refunded. The conviction of the accused/appellants for the
offence under Section 302 r/w 34 IPC and the sentence of life imprisonment, are
modified to one under Section 411 of IPC and sentenced to undergo three years
rigorous imprisonment. The conviction and sentence under Section 380 IPC are
sustained and both the sentences shall run concurrently. The sentence already
undergone by the appellants shall be given set off.
15.With the above modification, the criminal appeal is dismissed.
16.Now, it is brought to the notice of the Court by the learned counsel
for the appellants that the appellants are in jail from 2002 onwards, which
statement is recorded. Under the circumstances, the Superintendent of Central
Prison concerned is directed to act accordingly.
ap
To
1.The Additional District and Sessions Judge,
Fast Track Court No.III, Madurai.
2. The Principal Sessions Judge, Madurai
3. The Inspector of Police,
Melur Police Station,
Madurai District.
3. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai
