IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09..04..2011 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU Criminal Appeal No.264 of 2004 Thangapandian @ Sankaranarayanan ... Appellant /Sole Accused -Versus- State by The Inspector of Police, Madathukkulam, Kumaralingam Police Station, Coimbatore District. [Crime No.147 of 1996] ... Respondent Memorandum of Grounds of Criminal Appeal under Section 374(2) of the Criminal Procedure Code against the judgement dated 27.01.2004 made in S.C.No.11 of 2003 on the file of the learned Additional Sessions Judge, Fast Track Court No.V. Coimbatore at Tirupur. For Appellant : Mr.S.Manohar Ponraj For Respondent : Mr.P.Kumaresan, Public Prosecutor JUDGEMENT
The appellant is the sole accused in S.C.No.11 of 2003 on the file of the learned Additional District and Sessions Judge, Fast Track Court No.V, Coimbatore at Tirupur. He stands convicted for offences under Sections 120-B, 147, 395 and 450 of IPC. He has been sentenced to undergo R.I. for 8 years and to pay a fine of Rs.1000/- [no default sentence imposed] for offence under Section 120-B of IPC; to undergo imprisonment for 6 months [description of imprisonment not given] for offence under Section 147 of IPC; to undergo R.I. for 8 years and to pay a fine of Rs.1000/- [no default sentence imposed] for offence under Section 395 of IPC; and to undergo R.I. for 8 years and to pay a fine of Rs.1000/- [no default sentence imposed] for offence under Section 450 of IPC. Challenging the said conviction and sentence, the accused is now before this court with this criminal appeal.
2. The appellant was one of the accused in PRC No.7 of 1997. Totally there were 11 accused in the said case. But, the appellant was absconding and therefore, the learned Magistrate split up the case as against this appellant and committed the case against the rest of the 10 accused. On committal the case against the rest of the 10 accused was made over to the Assistant Sessions Judge, Udumalpet, who framed charges against all the 10 accused. The case was thereafter transferred to the Additional District and Sessions Judge, Fast Track Court No.V, Coimbatore at Tirupur. After framing of charges, two accused by name Murugan and Ravi in the said case were absconding. Therefore, the case against the said two accused was split up. The learned Additional Sessions Judge , therefore, rearranged the rank of the remaining 8 accused and proceeded with the trial in S.C.No.61 of 1997. Accordingly, the trial commenced on 25.09.2003.
3. In the mean while, the present appellant was secured and case against him was also committed by the learned Magistrate and the same was in turn made over to the Additional Sessions Judge, FTC No.V, Coimbatore at Tirupur in S.C.No.11 of 2003. The learned Additional Sessions Judge, accordingly, framed charges against the appellant. Since the appellant denied the charges, the learned Additional Sessions Judge proceeded with the trial. The examination of witnesses in this case commenced on 20.11.2003 in S.c.No.11 of 2003.
4. On completing the trial in both the cases, the learned Judge delivered a common judgement on 27.01.2004 convicting the accused in S.C.No.61 of 1997 as well as the appellant herein [who is the sole accused in S.C.No.11 of 2003]. Challenging the conviction and sentence imposed against the accused in S.C.No.61 of 1997, the accused therein have preferred appeal in Crl.A.Nos.656, 163, 522, 177, 407 and 524 of 2004. As against the conviction and sentence imposed against the accused in S.C.No.11 of 2003, the appellant/accused has come up with the present appeal in Crl.A.No.264 of 2004.
5. Since all these appeals have arisen out of a common judgement, I had an occasion to peruse the records and evidence, both oral and documentary, in both the cases. A perusal of the records in S.C.No.61 of 1997 reveal that there were a total number of 24 witnesses examined by the prosecution and 34 documents exhibited, besides 4 material objects. On the side of the defence, there were 2 witnesses examined and 2 documents exhibited. Insofar as the case in S.C.No.11 of 2003 is concerned, there were only 18 witnesses examined and 7 documents exhibited. No one was examined on the side of the defence and no document was exhibited. No material object was marked.
6. The prosecution witnesses in S.C.No.61 of 1997 by name Kannadi Mani @ Ramasamy [P.W.6], Dhanam [P.W.7], Thangaraj [P.W.8], Palraj [P.W.12], Kayalvizhi [the learned Judicial Magistrate] who conducted test identification parade [P.W.13], Subramaniam, S/o.Ramalingam [P.W.11], Sakthivel [P.W.16], and Chandrasekaran [P.W.17] were not examined during trial in S.C.No.11 of 2003. Similarly, few witnesses examined in S.C.No.11 of 2003 were not examined in the other case. As we have noticed, several incriminating documents including the complaint and the FIR exhibited in S.C.No.61 of 1997 were not exhibited in S.C.No.11 of 2003. But, curiously, the learned Additional Sessions Judge has considered the evidences, both oral and documentary, let in , in both cases including the defence witnesses cumulatively to deliver a common judgement holding the accused involved in both the cases guilty of charges framed against them. It is shocking to note that the evidences which were let in in one case were used against the accused in the other case to hold him/them guilty. It is the fundamental principle of criminal law that the evidence recorded behind the back of an accused that too, in a different case is of no evidence against him in the case in which he happens to be an accused. It is also yet another fundamental principle of criminal law that even in respect of evidence let in in a particular case , unless the same is put to the accused under Section 313 of Cr.P.C. the same cannot be used against him. But, it is highly unfortunate that the oral as well as documentary evidences let in in one case have been used in the other case. It is needless to point out that the appellant/accused in S.C.NO.11 of 2003 had no occasion at all to know the oral evidence deposed to by the witnesses and the documents exhibited in the other case. Similarly, the accused in S.C.No.61 of 1997 had no occasion to know the evidence, both oral and documentary, let in in S.C.NO.11 of 2003. The accused in one case had, therefore, no occasion to cross examine or challenge the evidence let in in the other case and vice versa. Thus, it is very obvious that the judgement of the trial court convicting the accused both in S.C.No.61 of 1997 and S.C.No.11 of 2003 suffers from serious illegality which vitiates the judgements, but not the entire trials. In such circumstances, this court may have to set aside the judgements and remit both the cases to the trial court to deliver judgements afresh separately in both the cases on considering the evidence let in in the respective case. But, having regard to the time lapse as the occurrence was in the year 1996, I am of the considered view that the interest of justice would be best served, if I examine the evidences let in in each case separately to find out whether the conviction imposed on the respective accused could be sustained or not. In such view of the matter, I do not propose to remit both the cases for delivering judgement afresh in each case separately. Instead, I propose to deal with the appeals relating to S.C.No.61 of 1997 and the appeal relating to S.C.No.11 of 1997 separately strictly confining to the evidence let in in the respective case. Accordingly, I propose to deliver a judgement in Criminal Appeal Nos.656, 163, 522, 177, 407 and 524 of 2004 separately. This judgement governs only Crl.A.No.264 of 2004 arising out of S.C.No.11 of 2003.
7. The case of the prosecution in brief is as follows:- P.W.1 was the President of Kumaralingam Village Panchayat in Udumalpet Taluk. He was residing at Samuvarayanpatti Village. He had two brothers by name Jothikannan and Senthilmurugan. All the three were living as a joint family. P.W.2 is his brother’s son. P.W.4 is his brother’s daughter. P.W.3 is the husband of P.W.4. P.W.5 is a housemaid at the house of P.W.1. P.W.6 is his neighbour. On 28.11.1996, P.Ws.1 to 6 were in the house of P.W.1 at Samuvarayanpatti Village. By about 8.00 a.m. a Mahindra Maxi Cab Van, green in colour, bearing Regn. No.TN 22 X 2889 came to the house of P.W.1 and the same was stopped in front of P.W.1’s house just out side the compound wall. Nine persons got down from the van and came to the premises of P.W.1. All were dressed neatly and they gave a look of high officials. Three of them did not enter into the house and they waited on the varanda. Six of them entered into the house. They told P.W.1 and the other inmates that they were officials from income tax department and that they had come to conduct income tax raid at the house of P.W.1. They had shown certain forms normally used by the office of the income tax department and the letter pads. By the appearance of the accused and from the way in which they talked and the documents namely forms from the income tax department which they had shown, P.Ws.1 to 6 believed that they were really from income tax department. Therefore, they allowed them to search the entire house. Three persons who were waiting out side did not allow anybody to enter into the house. Similarly, the six persons who entered into the house; who made house search did not allow the inmates to go out. After a thorough search, they found gold jewels weight 325 sovereigns in the iron safe of P.W.1. They also found a cash of Rs.95,000/- in the steel bureau. They took them and brought the same to the drawing hall. One of the persons displayed the jewels and the cash on the table in the drawing hall. Then, he entered the details of the jewels and the cash in a form. They gave a copy of the form to P.W.1 as though it was an official document for seizure of the jewels and cash from the house of P.W.1 and also the letter pad [Exs.P1 and P2]. Then, they put all the jewels and cash in a suitcase and brought the van to the portico. They told P.W.1 to come to the office of the income tax department in Chennai on 05.12.1996 for enquiry. They got into the van and went away with the looted jewels and cash. Few minutes thereafter, P.W.1 contacted his auditor Mr.Archunaraj [P.W.11] at Coimbatore over telephone. When P.W.1 told about the raid conducted , P.W.11 wanted P.W.1 to rush immediately to his office at Coimbatore along with the documents handed over by those persons during the occurrence. Immediately, P.W.1 and P.W.2 rushed to Coimbatore and met P.W.11. On seeing the letter pads and the forms of the income tax department, P.W.11 found that the said forms were not meant for income tax raid. Therefore, he suspected foul play and so, he immediately contacted the income tax officials at Coimbatore as well as at Chennai and P.W.11 was in turn informed that income tax officials did not make any such raid at the house of P.W.1. From this, P.W.1, P.W.2 and P.W.11 realised that the jewels and cash belonging to P.W.1 had been looted by unscrupulous elements. P.W.11 advised P.W.1 to go to police station. P.Ws.1 and 2 returned to Kumaralingam Town and preferred a complaint at 4.00 p.m. On 28.11.1996 at Kumaralingam Police Station. [The said complaint has not been proved and exhibited in this case]. Based on the above said complaint, a case was registered by P.W.12 in Crime No.147 of 1996 for offences under Sections 419 and 420 of IPC. [The said FIR has also not been proved and exhibited in this case]. He forwarded the FIR and the Complaint to the court along with the forms as well as letter pads produced by P.W.1 to him. [The said forms have also not been proved and exhibited in this case.].
8. P.W.13 attached to Thali Police Station took up the case for investigation, proceeded to the place of occurrence and prepared an observation mahazar at 5.15 p.m. on 28.11.1996. He also prepared a rough sketch. [Both these documents have also not been proved and exhibited in this case]. Then, he examined P.Ws.1 to 6 and few more witnesses and recorded their statements. He altered the case into one under Sections 419, 420 and 395 of IPC and submitted a report to the learned Judicial Magistrate on 29.11.1996. Thereafter, he handed over the case to P.W.14, the Inspector of Police attached to Madathukkulam Police Station for further investigation.
9. P.W.14 took up the case for further investigation on 30.11.2006. He arrested the accused who were tried in S.C.No.61 of 1997 and recovered the jewels and cash from them. The said jewels and cash have not been proved as material objects in this case. On 02.12.1996, he arrested the accused Ganesan [A6 in S.C.No.61 of 1997] from whom, he recovered the vehicle involved in the crime, trip sheet and a bill under cover of a mahazar. None of the above documents have been proved as exhibits in this case.
10. P.W.17 took up the case for further investigation. In the mean time, the appellant was arrested by Arumbakkam Police in connection with Crime No.1190 of 2002 for offences under Sections 341, 397 and 307 of IPC and remanded to judicial custody. The appellant was then in Central Prison at Vellore. On coming to know the same, P.W.17 gave a requisition to the learned Magistrate No.I, Udumalpet for production of the appellant/accused for remand under P.T. Warrant. Accordingly, on 18.09.2002, the appellant was produced and remanded to judicial custody. On a request made by P.W.17, the appellant was handed over to police custody for 4 days from 27.09.2002. On the same day at 5.00 p.m. P.W.17 examined the appellant in the presence of P.W.15 and another witness. The appellant gave a voluntary confession and the same was reduced into writing. In the said confession, he disclosed that he had pledged the jewels at Jambu Bai shop at Chennai belonging to P.W.16. In pursuance of the said disclosure statement, the appellant took the police and the witnesses to Chennai. At 3.30 p.m. on 28.09.2002, he identified the shop at Chennai. The pawn broker told the police that the jewels had already been redeemed. Therefore, the pawn broker [P.W.16] handed over only the xerox copies of receipts for the said pledging and redeeming. They were all recovered under cover of Ex.P.2 mahazar. Ex.P.3 to P.7 are the xerox copies of pawn receipts. Then , P.W17 produced the appellant before the learned Magistrate on 29.09.2002 for remand and the accused was accordingly remanded to judicial custody. Thereafter , further investigation was entrusted to P.W.18.
11. On 30.11.1996 P.W.18 took up the case for further investigation. He arrested the other accused by name Perumal @ Sivapermal and on his confession, he recovered certain jewels from his possession. On 06.12.1996, he arrested one accused by name Sheik Hussain and recorded his voluntary confession. In pursuance of the said confession statement, P.W.18 recovered certain gold jewels from his possession. Then, on 10.12.1996, he gave a request to the learned Chief Judicial Magistrate for deputing a Magistrate to hold test identification parade. On 20.12.1996, test identification parade was held by the Magistrate in which P.Ws.1 to 5 and another witness participated. [The learned Magistrate who conducted test identification parade has not been examined and the record relating to the proceedings of the test identification parade has also not been proved and exhibited in this case.]. On 08.01.1997, he examined the finger print expert Mr.Narasimhan [P.W.9] and recorded his statement.
12. P.W.9 was a Finger Print Expert attached to Finger Prints Bureau at Coimbatore. On the date of occurrence and after the cae was registered, on a request from the police, he made an inspection at the house of P.W.1. When he examined a room in the ground floor of the house of P.W.1, he found five finger prints i.e. two finger prints on the steel bureau and three finger prints in the window in the first floor of the house. In the bathroom, precisely on the porcelain flush tank cover, he noticed yet another finger print. On the steel bureau which was kept in yet another room in the ground floor, he noticed two finger prints. Thus, totally, he found eight finger prints which he marked as S1 to S8. He took photographs of the said finger prints in a scientific manner. On 30.11.1996, he handed over his report regarding the same. The said report has not been proved as exhibit in this case.
13. P.W.18 on completing the investigation, laid the final report against the appellant herein and the other accused in S.C.No.61 of 1997 and two others who are still absconding.
14. Based on the above materials, the trial court framed charges against the appellant for offences under Section 120-B, 147, 450, 395 and 109 of IPC. Since the appellant denied the charges, the trial court proceeded with the trial. During trial, on the side of the prosecution, 18 witnesses were examined and 7 documents were exhibited. P.Ws.1 to 5 are the inmates of the house of P.W.1 where the occurrence had taken place and thus they are eye witnesses to the occurrence. P.W.6 is a person from the lodge where it is alleged that the accused stayed one day prior to the date of occurrence. P.W.7 has got a petty shop at Samurayanpatti Village. On 28.11.1996 at about 8.30 a.m. he saw the van in question being parked in front of the house of P.W.1. Then, after some time, when the van was proceeding, the accused by name Amanullah [A1 in S.C.No.61 of 1997] was standing near the house of P.W.1 and gave some signal. Then the said accused went away in a bus. The said witness has not implicated the appellant in any manner. P.W.8 is a witness to the observation mahazar. P.W.9 is the Finger Print Expert who has found finger prints of accused Sheik Hussain [A8 in S.C.No.61 of 1997] and Vendan [A4 in S.C.No.61 of 1997] tallied with the finger prints found in the house of P.W.1. He has not implicated the appellant in any manner. P.W.10 is an Official from Income Tax Department. He has spoken to the fact that the forms given by the culprits to P.W.1 at the time of occurrence are the ones used in the office of the income tax department, but they are not meant for raid. P.W.11 is the auditor whom P.W.1 contacted immediately over phone. The others are police officials.
15. When the incriminating materials were put to the appellant under Section 313 of Cr.P.C. he denied the same as false. He, however, did not chose to examine any witness on his side nor did he produce any document. Having considered the above materials, the trial judge found the appellant guilty under all charges, convicted and sentenced him as narrated in the earlier paragraph of this judgement. Hence, the present appeal.
16. I have heard the learned counsel for the appellant/accused and the learned Public Prosecutor for the respondent/State and also perused the records carefully.
17. In this appeal, the learned counsel for the appellant would submit that absolutely there is no evidence connecting the appellant with the alleged crime except the evidence of the eye witnesses who have identified the appellant for the first time in court. Such identification made by the witnesses, according to the learned counsel for the appellant, after several years in court cannot be given any weightage. The learned counsel for the appellant would further contend that there is no recovery of stolen articles from the possession of the appellant. He would further submit that Exs.P.3 to P.7 would not in any manner connect the appellant with the alleged crime. The learned counsel would, therefore, submit that this is a case where there is no evidence at all to sustain the conviction of the appellant and as such the appellant is entitled for acquittal.
18. The learned Public Prosecutor would stoutly oppose this appeal. According to him, based on the eye witnesses account and the recovery of pawn receipts [Exs.P.3 to P.7], the conviction of appellant needs to be sustained.
19. I have considered the above submissions and also perused the records carefully.
20. The facts which I have already narrated would make any one to understand that the learned trial Judge had conducted himself in such a way exposing his total indifference to the trial though the occurrence is a very heinous crime. As I have already mentioned, even the complaint given by P.W.1 has not been proved in evidence. Except a portion in the confession statement said to have been given by the appellant on 27.09.2002 [Ex.P.1], mahazar for the recovery of pawn receipts [Ex.P.2] and the pawn receipts [Exs.P.3 to P.7], no other documents have been proved in evidence.
21. From the evidences available on record, it could be easily culled out that the prosecution relies only on two sets of evidences. The first set of evidence is the eye witnesses account. They have identified the appellant as one of the assailants. Such identification was made for the first time in court at the time of trial after several years of the occurrence. The occurrence was on 28.11.1996; whereas the appellant was identified for the first time in court on 20.11.2003 i.e. after seven years of the occurrence. Admittedly, there was no test identification parade conducted in respect of the appellant. In the absence of any such test identification parade, the identification of the appellant made by the witnesses for the first time in court that too after lapse of 7 years, is inherently a weak piece of evidence and it is the settled law that in the absence of corroboration from any other source, conviction cannot be recorded solely based on such identification. [vide Manu Sharma v. State [NCT of Delhi], 2010 (6) SCC 1].
22. In this case, there is no other corroboration from any other source to corroborate the evidence of the eye witnesses. Though it is alleged that confession was given by the appellant in which he had disclosed about the pledging of jewels in the shop of P.W.16 , the jewels have not been recovered. P.W.16 has stated that the jewels were pledged in his shop in the name of one N.S.Narayanan. He has further stated that all the jewels were subsequently redeemed. The receipts produced before the trial court under Exs.P.3 to P.7 would also go to show that the jewels were pledged by one N.S.Narayanan and the same were redeemed. There is no evidence at all let in by the prosecution that it was this appellant who pledged the jewels. P.W.16 has stated that he cannot identify the person who pledged the jewels and who redeemed the same. Therefore, from the evidence of P.W.16 and the receipts, it cannot be safely held that this appellant pledged the jewels in the shop of P.W.16. Assuming that it was this appellant who pledged the jewels, there is no evidence that the jewels so pledged and redeemed were the stolen jewels connected with the crime in question. In the absence of the same, the disclosure statement namely Ex.P.1 will not fall within the ambit of Section 27 of the Evidence Act and, therefore, the same is not at all admissible in evidence. Thus, what remains for the ultimate consideration is only the identification made by the eye-witnesses in court for the first time. Since there is no other evidence to corroborate the same, as per the settled law, conviction of the appellant cannot be sustained. Thus, he is entitled for acquittal.
23. At this juncture, I would like to express my displeasure over the way in which the trial has been conducted. I have to point out that the charges in the instant case have not been framed properly. An omnibus statement has been made and in the end , it is stated that the accused has committed offences punishable under Sections 120-B, 147, 450, 395 and 109 IPC. The charges do not even say as to who are the other persons involved in the crime along with the appellant/accused to commit the crime under Sections 395 and 147 of IPC. As I have already narrated , the trial court has committed an illegality by relying on the evidences, both oral and documentary, let in, in the other case. Similarly, the prosecution was also at fault in not proving the complaint, FIR and the other relevant documents and also the material objects collected during investigation in the instant case. I hope, these kinds of lapses may not occur in the days to come.
24. In the result, the criminal appeal is allowed; the conviction and sentence imposed on the appellant by the trial court are set aside and the appellant is acquitted of all the charges. Fine, if any, paid by the appellant shall be refunded to him. The bail bond executed by the appellant shall stand discharged.
Index : yes 09..04..2011 Internet : yes kmk To 1.The Additional Sessions Judge, Fast Track Court No.V. Coimbatore at Tirupur. 2.The Inspector of Police, Madathukkulam, Kumaralingam Police Station, Coimbatore District. S.NAGAMUTHU. J., kmk Pre Delivery Judgement in Crl. Appeal No.264 of 2004 ..04..2011