{"id":61280,"date":"2007-04-03T00:00:00","date_gmt":"2007-04-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/saravanan-vs-state-rep-by-on-3-april-2007"},"modified":"2014-01-14T09:51:01","modified_gmt":"2014-01-14T04:21:01","slug":"saravanan-vs-state-rep-by-on-3-april-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/saravanan-vs-state-rep-by-on-3-april-2007","title":{"rendered":"Saravanan vs State Rep. By on 3 April, 2007"},"content":{"rendered":"<div class=\"docsource_main\">Madras High Court<\/div>\n<div class=\"doc_title\">Saravanan vs State Rep. By on 3 April, 2007<\/div>\n<pre>       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\nDATED: 03\/04\/2007\nCORAM\nTHE HON'BLE MR. JUSTICE M. CHOCKALINGAM\nAND\nTHE HON'BLE MR. JUSTICE P.R.SHIVAKUMAR\n\nCrl.Appeal (MD) Nos.72, 285 of 2005\n\nSaravanan\t.. Appellant\n\t\t\t   in Crl.A.(MD)No.72 of 2005\n\t\t\t   Accused No.1\nRaja\nKannan\t\t\t.. Appellants in Crl.A. \t\t\t  \t\n\t\t\t   (MD)No.285 of 2005,A2 and A3\n-Vs-\n\nState rep. by\nThe Inspector of Police,\nMelur Police Station,\nMadurai District.\t..  Respondent\n\t\t\t    Complainant\n\n\tAppeals filed against the conviction and sentence passed by the Additional\nDistrict and Sessions Judge, Fast Track Court NO.III, Madurai in s.C.No.159 of 2002\ndated 16.9.2004.\n\nFor Appellants\t\t: Mr.G.Bhaghavath Singh for A1\n\t\t  \t  Mr.K.Jeganathan for A2 and A3\n\nFor Respondent\t\t: Mr.V.Kasinathan\n\t\t\t  Addl.Public Prosecutor\n\n\n:JUDGMENT\n<\/pre>\n<p>Judgment of the Court was delivered by M.CHOCKALINGAM,J.\n<\/p>\n<p>\tThis judgment shall govern these two appeals, viz., Crl.A.(MD) No.72\/2005<br \/>\npreferred by A1 and Crl.A.(MD) No.285\/2005 preferred by A2 and A3.  These three<br \/>\nappellants who stood charged, tried and found guilty under Sections 458, 460,<br \/>\n302 read with 34 and 380 IPC and awarded five years rigorous imprisonment along<br \/>\nwith a fine and default sentence in respect of the first charge, two years<br \/>\nrigorous imprisonment along with a fine and default sentence in respect of the<br \/>\nsecond charge, life imprisonment along with a fine and default sentence in<br \/>\nrespect of the third charge and one year rigorous imprisonment along with a fine<br \/>\nand default sentence in respect of the fourth charge, have brought these appeals<br \/>\nbefore this Court.\n<\/p>\n<p>\t2.The short facts necessary for the disposal of this appeal can be stated<br \/>\nthus:\n<\/p>\n<p>\t(a)P.W.3 is the daughter of the deceased, Sahul Hammed @ Chellappa.  The<br \/>\nson of the deceased is an Engineer working in United States.  P.W.1 is the<br \/>\nnephew of the deceased.  During the relevant time, the deceased, an elderly<br \/>\nperson, was living alone. He was assisted by the first accused, Saravanan,<br \/>\noccasionally.  At the time of his visit, the first accused developed an<br \/>\nintention of causing theft of the movables in the house of the deceased.  He<br \/>\nrequired on assistance and so, he had the assistance of A2 and A3.  Accordingly,<br \/>\nall the three accused, having an intention of committing theft, made lurking<br \/>\nhouse trespassing in the night.  They went inside the house, caused the death of<br \/>\nthe deceased by throttling and smothering at about 3.00 a.m. on 20.3.2002.  They<br \/>\nhave stolen the movables from the house, viz., 2 cameras, one remote controller,<br \/>\nCD player etc.<\/p>\n<p>\t(b)P.W.1 who was working as a loadman, returned from his work at about<br \/>\n3.00 a.m. on 20.3.2002 and found that the lights were burning inside the house<br \/>\nof the deceased.  He entertained suspicion and knocked the doors.  But he could<br \/>\nnot get an answer.  He had the assistance of the near relatives and when he went<br \/>\nover there, he found the back door was kept open and all of them got inside the<br \/>\nhouse.  They found the dead body of the deceased on the cot.  P.W.1 informed the<br \/>\nsame to P.W.3, the daughter of the deceased, at Karur and she came in the<br \/>\nmorning. P.W.1 proceeded to the respondent Police Station and gave a complaint<br \/>\nto P.W.11, the Sub Inspector of Police, which is marked as Ex.P.1, on the<br \/>\nstrength of which a case came to be registered in Crime No.159\/2002 under<br \/>\nSections 452 and 302 IPC.  The Express Report, Ex.P.14, was despatched to the<br \/>\nCourt.  P.W.12, the Inspector of Police, on receipt of the copy of Ex.P.14, took<br \/>\nup investigation, proceeded to the scene of occurrence, made an observation of<br \/>\nthe place of occurrence in the presence of witnesses and prepared Ex.P.2-the<br \/>\nObservation Mahazar and Ex.P.15-the rough sketch.  He conducted inquest on the<br \/>\ndead body in the presence of witnesses and panchayatdars from 7.00 a.m. to 9.30<br \/>\na.m. that day and prepared Ex.P.17-the Inquest Report.  He also enquired the<br \/>\nwitnesses and recorded their statements.  P.W.9, the Finger Print Expert, was<br \/>\ncalled for, who took finger prints from the place of occurrence.\n<\/p>\n<p>\t(c)Following the inquest, the dead body of the deceased was sent for the<br \/>\npurpose of autopsy to Melur Government Hospital.  One Euphes Shiegela Bai, the<br \/>\ndoctor, attached to the said hospital conducted the postmortem of the deceased.<br \/>\nSince the said doctor died, P.W.8, the doctor, attached to the said hospital,<br \/>\nbased on the Postmortem findings of the Late Dr.Euphes Shiegela Bai, has opined<br \/>\nin Ex.P.12, the Postmortem Certificate, that the deceased would appear to have<br \/>\ndied by Asphyxia due to throttling and smothering.\n<\/p>\n<p>\t(d)Pending investigation, P.W.12, the Investigating Officer, arrested A2<br \/>\nand A3 on the same day, i.e., 20.3.2002, at about 5.00 p.m.  A2 voluntarily<\/p>\n<p>came forward to give a confessional statement which was recorded in the presence<br \/>\nof witnesses, the admissible part of which is marked as Ex.P.5, pursuant to<br \/>\nwhich M.O.4-a camera and M.O.7-the knife were recovered under a cover of<br \/>\nMahazar, Exs.P.6 and 7 respectively.  A3 also voluntarily came forward to give a<br \/>\nconfessional statement which was also recorded in the presence of the same<br \/>\nwitnesses, the admissible part of which is marked as Ex.P.8, pursuant to which<br \/>\nM.O.5-Remote control, M.O.6-a CD Player and M.O.8-a Gunny bag were recovered<br \/>\nunder a cover of Mahazar, Ex.P.9.  On 03.08.2003, the Investigating Officer<br \/>\narrested A1.  A1 came forward to give a confessional statement, the admissible<br \/>\npart of which is marked as Ex.P.10, pursuant to which M.O.9-a camera was<br \/>\nrecovered under a cover of Mahazar, Ex.P.11.  All the accused were sent for<br \/>\njudicial remand.  P.W.9, the Finger Print Expert also found that all the finger<br \/>\nprints taken at the place of occurrence tallied with the finger prints available<br \/>\nwith the Investigating Officer and has given his opinion to that effect in<br \/>\nEx.P.13, the Finger Print Expert Report.  On completion of the investigation,<br \/>\nthe investigating officer filed the final report.\n<\/p>\n<p>\t3.The case was committed to Court of Sessions.  Necessary charges were<br \/>\nframed.  In order to substantiate its case, the prosecution marched 13 witnesses<br \/>\nand also relied upon 18 exhibits and 9 material objects.\n<\/p>\n<p>\t4.On completion of the evidence on the side of the prosecution, the<br \/>\naccused were questioned under section 313 Cr.P.C., as to the incriminating<br \/>\ncircumstances found in the evidence of the prosecution witnesses and they denied<br \/>\nthem as false.  No defence witness was examined. The Trial Court heard the<br \/>\narguments advanced on either side, scrutinised the materials, took the view that<br \/>\nthe prosecution has proved its case beyond reasonable doubt, found the<br \/>\naccused\/appellants guilty as per the charges and awarded the punishments as<br \/>\nreferred to above, which is the subject matter of challenge before this Court in<br \/>\nthis appeal.\n<\/p>\n<p>\t5.Advancing his arguments on behalf of the appellant\/accused,<br \/>\nMr.G.Bhagavath Singh, learned counsel appearing for A1 and Mr.K.Jeganathan,<br \/>\nlearned Counsel appearing for A2 and A3, inter-alia made the following<br \/>\nsubmissions:\n<\/p>\n<p>\t(a)The gist case of the prosecution is that A1 to A3 lurked into the house<br \/>\nof the deceased at about 3.00 a.m. on 20.3.2002 and there is no eye witness to<br \/>\nthe occurrence at all and they have murdered the deceased and also stolen the<br \/>\nmaterial objects which were produced before the Court.  Insofar as, the trespass<br \/>\nor theft or the act of murder, there is no evidence available for the<br \/>\nprosecution.  Even according to P.W.1, the prosecution case was that A1 used to<br \/>\nassist the deceased on occasions and the only witness to that effect is P.W.1.<br \/>\nEven P.W.1, at the time of cross examination would admit that he had no direct<br \/>\nknowledge about the assistance rendered by A1 to the deceased.  Insofar as A2<br \/>\nand A3, they were utter strangers and thus, in that regard, no evidence was<br \/>\navailable to link them with the crime.\n<\/p>\n<p>\t(b)The learned counsel submitted that before the trial Court, the<br \/>\nprosecution relied upon two pieces of evidence which were accepted by the lower<br \/>\nCourt-firstly,  the Finger Print Expert&#8217;s opinion, which is marked as Ex.P.13<br \/>\nand secondly, the recovery of the material objects from all the three accused,<br \/>\nconsequent upon their confessional statements alleged to have been made.\n<\/p>\n<p>\t(c)Added further, the learned counsel that both the above stated evidences<br \/>\nshould have been rejected by the Trial Court outright.  But, the Trial Court has<br \/>\nnot done so.  Insofar as the Finger Print Expert&#8217;s opinion, according to P.W.9,<br \/>\nthe Finger Print Expert, all the finger prints were not taken by him and the<br \/>\nfinger prints that were originally produced by the Investigating officer were<br \/>\ncompared with the finger prints taken by the Finger Print Expert.  Thus, it<br \/>\nwould be quite clear that the finger prints were not taken either with the<br \/>\npermission of the concerned Judicial Magistrate or on his order or as per the<br \/>\nPolice Standing Orders or with the prior permission of Superintendent of Police<br \/>\nwho is required to issue orders for taking such finger prints.  Thus, the<br \/>\nlearned counsel submitted that the procedural guidelines for taking finger<br \/>\nprints has not been strictly followed.  He also placed reliance on the decision<br \/>\nof this Court in Suresh @ Sureshkumar @ Thennarasu and Alagar @ Alagarkumar Vs.<br \/>\nState.by Inspector of Police, G-2, Karimedu Police Station, Madurai District<br \/>\nreported in 2004-2-L.W.(Crl.) 814.\n<\/p>\n<p>\t(d)The learned counsel for the appellant further submitted that in view of<br \/>\nthe opinion of P.W.9, the Finger Print Expert, the finger prints available,<br \/>\nwhich were not taken procedurally, is of no evidentiary value and no evidentiary<br \/>\nvalue could be attached to his report.  Added further, the learned counsel that<br \/>\nthe other piece of evidence is only the recovery of the material objects.  It is<br \/>\ntrue that through P.W.3, the daughter of the deceased, the material objects have<br \/>\nbeen proved to be belonged to the deceased. The only witness examined for the<br \/>\npurpose of arrest and alleged confession, recovery and all the material objects<br \/>\nwas only P.Ws.5,6 and 7 and at the time of cross examination made by the defence<br \/>\nside, their evidence has become shaky and apart from this, once the prosecution<br \/>\nwas unable to show by a clear evidence as to the arrest, confession and recovery<br \/>\nof the material objects, though it has been proved that the recovered material<br \/>\nobjects belonged to the deceased, even presumption available under illustration\n<\/p>\n<p>(a) of section  114 of the Indian Evidence Act cannot be availed by the<br \/>\nprosecution.  But the Lower Court has not taken into consideration that aspect.<br \/>\nIn the absence of any evidence, the lower Court has found the accused guilty as<br \/>\nper the charges stated above.  He also further submitted that it is not only the<br \/>\ncase where it lacks in evidence but also bereft of evidence and hence, the<br \/>\naccused are entitled for acquittal in the hands of this Court.\n<\/p>\n<p>\t6.The Court heard the learned Additional Public Prosecutor on the above<br \/>\ncontentions and paid its anxious consideration on the submissions made and made<br \/>\na thorough scrutiny of the materials available.\n<\/p>\n<p>\t7.In the instant case, it is not a fact in controversy that Sahul Hammed @<br \/>\nChellappa was done to death in an incident that took place during night hours at<br \/>\nabout 3.00 a.m. on 20.3.2002.  Following the inquest made by the Investigating<br \/>\nOfficer, the dead body was subjected to postmortem.  P.W.8, the doctor, attached<br \/>\nto Melur Government Hospital, has opined in Ex.P.12, the Postmortem certificate,<br \/>\nthat the deceased would appear to have died out of Asphyxia due to throttling<br \/>\nand smothering.  The fact that the deceased died out of homicidal violence was<br \/>\nnever questioned by the accused at any stage of proceedings and hence, it can be<br \/>\nfactually recorded so.\n<\/p>\n<p>\t8.Insofar as the gist of the case, the prosecution has revealed from the<br \/>\nmaterials available that the first accused was actually assisting the deceased<br \/>\non occasions and he planned to steal the movables from the house of the<br \/>\ndeceased.  A1 had the assistance of A2 and A3 and they made lurking house<br \/>\ntrespass during night hours on 20.3.2002, where all the accused after causing<br \/>\nthe death of the deceased, took away all the material objects which were marked<br \/>\nas M.Os.4 to 9.\n<\/p>\n<p>\t9.In the instant case, in respect of criminal trespass or for causing<br \/>\ndeath or for stealing the properties of the deceased, no direct evidence is<br \/>\nadduced by the prosecution. But, the prosecution relied only on two<br \/>\ncircumstances, viz., P.W.9, the Finger Print Expert&#8217;s opinion and the recovery<br \/>\nof the material objects.  It was P.W.13, the Inspector of Police who summoned<br \/>\nP.W.9, the Finger Print Expert, who went to the spot and took the finger prints<br \/>\nfrom the place of occurrence.  P.W.9, has deposed that all the finger prints<br \/>\nwere not taken by him and he compared the finger prints taken by him with that<br \/>\nof the finger prints originally produced by the investigating officer and on<br \/>\nverification, it was found tallied with that of A3 and he has given Ex.P.13,<br \/>\nFinger Print Expert Report, to that effect.  The Lower Court has also accepted<br \/>\nand relied upon this piece of evidence.  But, this Court is afraid whether this<br \/>\npiece of evidence can be accepted or not, since the procedural formalities as<br \/>\nrequired under law were not strictly followed either by P.W.12, the Investigator<br \/>\nor by P.W.9, the Finger Print Expert.  In the instant case, according to P.W.9,<br \/>\nall the finger prints were not taken by him.  But, the finger prints were<br \/>\nproduced by the Investigator and thus, they were actually compared with the<br \/>\navailable prints.  Now, it is pertinent to point out that as per the Police<br \/>\nStanding Orders and in Identification of the Prisoners Act, same guidelines were<br \/>\navailable to follow procedural formalities which are mandatory in character.  As<br \/>\nper the Identification of the Prisoners Act, the Investigating Officer must<br \/>\nobtain permission from the Magistrate concerned and then, the finger prints of<br \/>\nthe accused shall be taken.  Apart from this, as per section 801(k) of the<br \/>\nPolice Standing Orders, the finger print of the accused shall be taken under the<br \/>\norders of the Superintendent of Police.  But, in the instant case, either the<br \/>\nprovisions under the Identification of the Prisoners Act or the Police Standing<br \/>\nOrders has not been followed strictly.  But, these provisions are mandatory in<br \/>\ncharacter and thus, so long as mandatory provisions are not strictly followed or<br \/>\nadhered to, without any hesitation, the report given by P.W.9, the Finger Print<br \/>\nExpert, though tallying, cannot be attached any evidentiary value.  Hence, the<br \/>\nfinger print Expert&#8217;s opinion given in Ex.P.13, is of no significance under law<br \/>\nand thus, it has got to be rejected.  But, the lower Court has not considered<br \/>\nthe legal aspect of the same and has accepted it.\n<\/p>\n<p>\t10.Insofar as the arrest, confession and the recovery of material objects,<br \/>\naccording to the prosecution, A1 was arrested on 3.8.2003 and has given his<br \/>\nconfessional statement in the presence of witnesses P.Ws.6 and 7, the admissible<br \/>\npart of which is marked as Ex.P.10, pursuant to which M.O.9, a camera was<br \/>\nrecovered under a cover of Mahazar, Ex.P.11.  Similarly, A2 and A3 were arrested<br \/>\non the very day of occurrence, i.e., 20.3.2002 and they gave their confessional<br \/>\nstatements in the presence of witnesses, the admissible parts of which are<br \/>\nmarked as Exs.P.5 and 8 respectively, pursuant to which M.O.4-a camera, M.O.7-a<br \/>\nKnife were recovered under the cover of Mahazars Exs.P.6 and 7 and M.O.5-Remote<br \/>\ncontrol, M.O.6-CD Player and M.O.8-a gunny bag were recovered under a cover of<br \/>\nMahazar Ex.P.9.  Witnesses to that effect were examined.  The Court is unable to<br \/>\nagree with the learned counsel that the prosecution has not proved either the<br \/>\narrest, confession or the recovery of the material objects, since witnesses have<br \/>\nbeen examined to that effect and their statements have been recorded and hence,<br \/>\nthe evidence as to the arrest, confession and recovery of material objects from<br \/>\nA1, A2 and A3 as referred to above remains unshaken, despite cross examination<br \/>\nin full.  Thus, the prosecution has brought their evidence before the Trial<br \/>\nCourt and it has been accepted.  At the same time, the Court has to necessarily<br \/>\nstate that merely because of the recovery of the material objects as stated<br \/>\nabove, though proved to be belonged to the deceased through the evidence of<br \/>\nP.W.3, the daughter of the deceased, the Court cannot come to the conclusion<br \/>\nthat A1 to A3 were available at the time and place of occurrence or they have<br \/>\ncommitted the act of murder.  At best, they can be found guilty either as the<br \/>\npersons who have stolen or as the persons who are the receivers of the stolen<br \/>\nproperty and hence, they are found guilty under Section 411 IPC.\n<\/p>\n<p>\t11.Also, they were found guilty under Section 302 IPC only on the basis of<br \/>\nthe only piece of evidence available, i.e., the recovery of the material objects<br \/>\npursuant to their confessions.  All the material objects were actually belonged<br \/>\nto the deceased.  At the time of arrest and confession, the accused were unable<br \/>\nto put forth any explanation as to how they came into possession of the material<br \/>\nobjects which originally belonged to the deceased.  It is true, that presumption<br \/>\nunder illustration (a) of Section 114 of Indian Evidence Act is rebuttable in<br \/>\ncharacter.  But the accused have not rebutted the presumption by tendering any<br \/>\nexplanation as to the custody of those material objects which belonged to the<br \/>\ndeceased.\n<\/p>\n<p>\t12.Insofar as M.O.7-the knife, as put forth by the learned counsel for the<br \/>\nappellants, though it has been recovered from A2 pursuant to his confessional<br \/>\nstatement, the prosecution, in no way, is able to show either it is the weapon<br \/>\nof crime or it was used by the accused for committing any offence thereon and<br \/>\nthe prosecution has not brought any evidence in that regard.  Hence, the<br \/>\nrecovery of M.O.7-the knife from A2, as put forth by the prosecution, has got to<br \/>\nbe rejected.\n<\/p>\n<p>\t13.Under such circumstances, it is a fit case where the Court has to<br \/>\ninvoke section 411 IPC and award punishment and they are not found guilty of<br \/>\nmurder and hence, this Court is of the considered view that it is a fit case<br \/>\nwhere the conviction and sentence under section 302 read with 34 IPC can be<br \/>\nmodified to one under section 411 IPC and awarding 3 years of rigorous<br \/>\nimprisonment would meet the ends of justice.  Insofar as, the application of<br \/>\nother provisions, i.e., under Sections 458 and 460 IPC, the Court is of the<br \/>\nopinion that the<\/p>\n<p>prosecution had no direct evidence or circumstantial evidence and hence, they<br \/>\nare set aside.  Insofar as conviction and sentence under Section 380 IPC, the<br \/>\nlower Court has found the accused\/appellants guilty and has rightly awarded one<br \/>\nyear rigorous imprisonment along with a fine and default sentence.\n<\/p>\n<p>\t14.Hence, the conviction and sentence imposed by the trial Court on the<br \/>\nappellants under Sections 458 and 460 IPC are set aside and they are acquitted<br \/>\nof those charges.  The fine amount, if any paid by them, under Section 458 and<br \/>\n460 IPC, shall be refunded.  The conviction of the accused\/appellants for the<br \/>\noffence under Section 302 r\/w 34 IPC and the sentence of life imprisonment, are<br \/>\nmodified to one under Section  411 of IPC and sentenced to undergo three years<br \/>\nrigorous imprisonment. The conviction and sentence under Section 380 IPC are<br \/>\nsustained and both the sentences shall run concurrently. The sentence already<br \/>\nundergone by the appellants shall be given set off.\n<\/p>\n<p>\t15.With the above modification, the criminal appeal is dismissed.\n<\/p>\n<p>\t16.Now, it is brought to the notice of the Court by the learned counsel<br \/>\nfor the appellants that the appellants are in jail from 2002 onwards, which<br \/>\nstatement is recorded.  Under the circumstances, the Superintendent of Central<br \/>\nPrison concerned is directed to act accordingly.\n<\/p>\n<p>ap<\/p>\n<p>To<\/p>\n<p>1.The Additional District and Sessions Judge,<br \/>\n  Fast Track Court No.III, Madurai.\n<\/p>\n<p>2. The Principal Sessions Judge, Madurai<\/p>\n<p>3. The Inspector of Police,<br \/>\n   Melur Police Station,<br \/>\n   Madurai District.\n<\/p>\n<p>3. The Additional Public Prosecutor,<br \/>\n   Madurai Bench of Madras High  Court,<br \/>\n   Madurai<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Madras High Court Saravanan vs State Rep. By on 3 April, 2007 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03\/04\/2007 CORAM THE HON&#8217;BLE MR. JUSTICE M. CHOCKALINGAM AND THE HON&#8217;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 [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-61280","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.6 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Saravanan vs State Rep. 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