{"id":95495,"date":"2008-07-21T00:00:00","date_gmt":"2008-07-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sikkandar-raja-vs-state-represented-by-on-21-july-2008-2"},"modified":"2017-05-23T09:32:44","modified_gmt":"2017-05-23T04:02:44","slug":"sikkandar-raja-vs-state-represented-by-on-21-july-2008-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sikkandar-raja-vs-state-represented-by-on-21-july-2008-2","title":{"rendered":"Sikkandar @ Raja vs State Represented By on 21 July, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
Sikkandar @ Raja vs State Represented By on 21 July, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED : 21.07.2008\n\nCORAM\n\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\nAND\nTHE HONOURABLE MR.JUSTICE C.S.KARNAN\n\nCriminal Appeal Nos.541 & 551 of 2008\n\n\t\t\t\nSikkandar @ Raja\t\t..  Appellant in C.A.No.541\/2008\n\n\nGani\t\t\t\t\t..  Appellant in C.A.No.551\/2008\n\n\t\t\t\t\t\n\t\t\t\t\tVs.\t\t\t\t\t\n\n\nState represented by\nThe Inspector of Police,\nR-1 Mambalam Police Station,\nChennai.\n(Crime No.1508\/1991 )\t.. Respondent in both the appeals.<\/pre>\n
\tThese criminal appeals have been preferred under Section 374(2) Cr.P.C. against the judgment of conviction and sentence passed by the learned IV Additional Sessions Division, Chennai made in S.C.No.62 of 1992 dated  12.6.2008
\n\tFor Appellant
\n\tin Crl.A.541\/2008  :   Mr.V.Gopinath, Senior counsel
\n\t\t\t\t      for Mr.A.Gandhi<\/p>\n
\tFor Appellant
\n\tin Crl.A.551\/2008  :   Mr.S.Xavier Felix<\/p>\n
\tFor Respondent  \t  :   Mr.N.R.Elango, APP <\/p>\n
\t\t\t\tCOMMON JUDGMENT<\/p>\n
(The judgment of the Court was delivered by M.CHOCKALINGAM, J.)
\n\tThis judgement shall govern these two appeals viz., Crl.A.No.541\/2008 by A3 and Crl.A.No.551\/2008 by A2. A challenge is made to the judgement of the learned  IV Additional Sessions Division,  Madras made in S.C.No.62\/1992 whereby these two appellants along with 5 others ranked as A1, A4 to A7 were charged and on trial, they were found guilty as follows:\n<\/p>\n
Accused
\nCharges
\nFindings
\nSentence
\nA-1 to A4
\n149 IPC <\/p>\n
Not guilty<\/p>\n
A-1 to A-4
\n397 IPC
\nNot guilty<\/p>\n
A-1 to A-4
\n302 r\/w 34 IPC
\nGuilty
\nLife imprisonment  along with fine of Rs.25,000\/- i\/d 1 year R.I.\n<\/p>\n
A-6 and A-7
\n149 IPC
\nNot guilty<\/p>\n
A-6 and A-7
\n397 IPC
\nNot guilty<\/p>\n
A-6 and A-7
\n302 r\/w 34 IPC
\nNot guilty<\/p>\n
The sentences are ordered to run concurrently.\n<\/p>\n
\t2. Though A1 and A4 were found guilty by the trial Court, they have not made any appeal against the judgement.  The other accused A5 to A7 were ordered to be acquitted by the trial Court.\n<\/p>\n
\t3. The case of the prosecution before the trial Court can be stated as follows.\n<\/p>\n
\t(a) P.W.1 Gouthamchand and his brother Manckchand were running a pawn broker shop at D.No.2A\/2, Sivaprakasam Street,T.Nagar, Madras in the name and style of Anand Bankers. On 11.9.1991 at about 1.00 p.m., A1 approached them and pledged a gold ring. Subsequently, on 12.9.1991, A1 along with A2 to A4 came to the shop at about 4.30 p.m. under the guise of  redeeming the pledged jewel viz., gold ring. A1 informed the deceased Manckchand  that he has come to redeem the jewels. Hence, leaving the accused and P.W.1 outside, the deceased Manckchand entered into the safe custody room to take the gold ring. When he went inside the safe room A1 to A4 followed him. A1 to A4 demanded Manckchand to part with all the jewels. Since  Manckchand refused, all the four  accused  who were armed with weapons attacked Manckchand indiscriminately and caused his death instantaneously.  P.W.1 raised alarm and on hearing this, the witnesses Damodharan, Priyadarshan, Clament who were in the nearby shop rushed there and they also witnessed the occurrence. When the accused were about to escape from the place, immediately, P.W.1 along with others suddenly closed the shutter of the shop. Thus, all the accused persons along with the jewels and weapons were caught inside the shop. P.W.1 rushed  to R1- Mambalam Police Station and gave Ex.P1 report at about 5.15 p.m. to   P.W.8 Sub Inspector of Police on the strength of Ex.P1 report,he registered a case in Crime No.1508\/91 under Sections 302 and 380 IPC. The printed First Information Report is Ex.P10 and the same was despatched to Court.\n<\/p>\n
\t(b) P.W.12 Inspector of Police, who was Additional in charge of Mambalam Circle, on intimation, came over to Mambalam Police Station and got a copy of the F.I.R. . He gave intimation to Police Photographer, Scientific Officer and Finger Print experts and then he rushed to the spot along with the Sub-Inspector of Police. He opened the shutter in the presence of witnesses and apprehended A1 to A4 immediately. They were all brought to the Police Station and  at about 6.15 p.m. the confessional statement of A1 to A4  were recorded  between  6.20 to 7.10 p.m.    Pursuant to the confession statement,  the material objects were recovered from them. At about 7.30 p.m. P.W.12 investigating officer prepared an observation mahazar Ex.P16 in the presence of witnesses and drew a rough sketch Ex.P17. The scene of occurrence was actually photographed through P.W.4 photographer. Further, the Scientific Officer collected the  materials objects at the place of occurrence. The Investigating Officer collected the blood stained earth from the place of occurrence. Following the inquest made  by the Investigating Officer, he prepared the inquest report Ex.P.19. The dead body of the deceased was subjected to post mortem.\n<\/p>\n
\t (c) P.W.7 doctor attached to Government Hospital  conducted autopsy on the dead body of Manckchand and gave the post mortem certificate Ex.P.6 wherein he has opined that the deceased would  have died of shock and haemorrhage as a result of multiple injuries.  All the material objects recovered from the place of occurrence and also the material objects recovered pursuant to the statement made by the accused and from the dead body of the deceased were subjected to  chemical analysis  which resulted in Ex.P7 chemical report and Ex.P9 serologist report and they were also placed before the Judicial Magistrate Court.  Further investigation was proceeded with and the Ambassadar car which was  actually used by the accused was recovered and the witnesses have been examined to that effect. On 23.9.91, the other accused viz., A5 to A7 were also arrested and remanded to judicial custody. On completion of the investigation, the investigating officer filed a final report.\n<\/p>\n
\t(d) The case was committed to the Court of Sessions. Necessary charges were famed. In order to substantiate the charges levelled against the accused, the prosecution examined 12 witnesses and also relied on 24 exhibits and 15 material objects. 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 prosecution witnesses and they denied them as false. No defence witness was examined.  The Court heard the arguments advanced on either side and took a view that the prosecution has proved its case beyond reasonable doubt and rendered the judgement of conviction insofar as A1 to A4 are concerned and insofar as A5 to A7 are concerned, the trial Court recorded the judgement of acquittal. These appeals have been brought forth by A3 and A2 respectively.\n<\/p>\n
\t4. Advancing the argument on behalf of A3, learned Senior counsel would submit  that  according to the prosecution,  the   occurrence   had  taken  place at 4.30 p.m. on 12.9.1991 and  Ex.P1 report was given at 5.15 p.m. According to the prosecution, P.W.1 has  categorically  stated  in   his  evidence that he could not read Tamil but  could speak Tamil. In the instant case, it is highly doubtful whether Ex.P.1 report  could  have  come  into   existence  as  put forth by the prosecution. According to P.W.1, he went to the Police Station and gave a  statement  orally. The same was recorded and thus, Ex.P1 report came into existence. On the trial, P.W.8 Sub Inspector of Police  has stated that it is he who  has registered the case, but according  to him, a complaint was handed over to him. Hence, it cast a doubt whether Ex.P1 report would have come into existence as put forth by the prosecution.  Added further learned counsel, if Ex.P1 report is  perused it would  indicate that the name of A1 alone is found. Even as per the  evidence of P.W.1, he knew only A1 and he does not know the other accused. If the printed F.I.R. is looked into, the names of  A1 to A4 along with the name of their fathers and their residential addresses were found. Therefore, it is nothing but development  made to strengthen the prosecution case.   Therefore, it is highly doubtful whether Ex.P1 report and F.I.R. could have come into existence as put forth by the prosecution.  Further, the F.I.R. and the report have reached   the   Magistrate Court   only  at 7.00 a.m. i.e., the next day morning of the date of occurrence. If the case was actually registered at 5.15 p.m., why there was delay  of 14 hours in the F.I.R. reaching the Magistrate is not known. Therefore, all would go to show that  the case of the prosecution that the accused A1 to A4 were actually found inside the closed shop cannot  be believed.  The case of the prosecution, P.W.1 has witnessed the occurrence, he came to the Police Station, then immediately, the accused were apprehended by opening the shutter of the shop are all nothing but false. It is a false story created by the prosecution  in order to shape its case. Under such circumstances, the accused are entitled for acquittal  but the trial Court without appreciation of the defence plea  has taken an erroneous view  and  found A1 to A4 guilty. Hence, the judgement of the trial Court has got to be set aside by acquitting the accused by this Court.\n<\/p>\n
\t5. Advancing the argument on behalf of the appellant, ranked as A2, the learned counsel would submit that according to the prosecution the occurrence had taken place at 4.30 p.m.  on 12.9.1991. Even as per Ex.P1 report P.W.1 and   three other witnesses have witnessed the occurrence but no one has been examined by the prosecution except P.W.1 for the  reason best known to them. The learned counsel would further add that the investigating officer has categorically stated that the photographer was called for but no photographs were marked through the photographer who was examined as P.W.2. Thus, it would clearly indicate  that   they  were all concocted  story  in order to suit the prosecution case.  Equally, the  finger print expert was also called for and he should have  given  a  report, but  actually  the  report  was  not   brought  before  the  Court and  if  it  was  produced  before  Court, it   would  go  against the  prosecution case.  The scientific expert  was also called for and he made inspection at 8.00 p.m. He prepared a report and the same was marked as Ex.P2. When it is gone into it would clearly reveal that  the material objects  viz.,  sickle and  knives were actually found inside the shop at the place of occurrence. If to be so, the claim made by the investigating officer that  the accused were actually apprehended and their confessional statements were recorded and pursuant to the confession statement three knives and one sickle were recovered are nothing but a false story.\n<\/p>\n
\t6. Added further learned counsel, if it is true that these accused persons were actually arrested and taken to custody, they should have been produced before the Magistrate Court but they were taken for medical examination,  the next day i.e., on 13.9.1991 at 11.00 p.m., as could be seen from Ex.P4 and Ex.P5  wherein P.W.5 doctor has noted that A1 and A3 were produced on 13.9.1991 at 11.00 p.m. All would indicate that they were not remanded as put forth by the prosecution. The arrest and  recovery  coupled with the evidence of P.W.5 would clearly indicate that the major part of the prosecution cannot be believed.\n<\/p>\n
\t7. Added further learned counsel, only 13  objects were placed before the Judicial Magistrate along with the requisition by the investigating officer for the purpose of analysis by the Forensic laboratory but when the document in that regard was perused, it would reveal that 20 articles were sent for analysis.  There is discrepancy in the number of objects sent to Forensic department and duty is cast upon the prosecution to  clarify the same before the trial Court but failed to do so. Added further learned counsel, though the sickle was not actually mentioned in the earlier document, it finds place  in the analyst report. How the sickle came into at the later stage remains unknown. All would go to show that the prosecution did not prove  the true state of affairs.\n<\/p>\n
\t8. The learned counsel would further add that the scene of occurrence is a  public place and it is also a congested area  and number of shops were there but not even one independent witness was examined. There are lot of discrepancies in the evidence of P.W.1, he changes his version from time to time.   He has stated at one point of time that  originally the sickle was actually in the hands of A2, later he would state that  the sickle was handed over to A2 by A1 but as per the prosecution case,  all the four accused were having a weapon each viz., one sickle and three knives and  there is no question of one accused giving a weapon to the other accused to attack the deceased. Hence, P.W.1 could not have seen the occurrence at all . If the evidence of P.W.1  was not believed, the prosecution has no further evidence to offer and the Court has to reject the case of the prosecution outright. Hence, the accused\/ appellants are entitled for acquittal in the hands of this Court.\n<\/p>\n
\t9. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.\n<\/p>\n
\t10.  It is not in controversy that one Manckchand  brother of P.W.1  was done to death in an incident that had taken place at 4.30 p.m. on 12.9.1991 in Anand Bankers at Mambalam, Madras. Following the registration of the case by P.W.8, the investigating officer P.W.12 took up investigation and made inquest on the dead body of the deceased Manckchand and prepared the inquest report Ex.P.19 and the dead body was subjected to post mortem. P.W.7 doctor conducted autopsy on the dead body of the deceased Manckchand and gave his categoric opinion as a witness before the Court and through the contents in the post mortem certificate Ex.P6 that the deceased died out  of shock and haemorrhage due to the multiple injuries sustained. The fact that Manckchand died out of homicidal violence was never disputed by the appellants before the trial Court. Hence, the trial Court is perfectly correct in recording so and this Court also finds no impediment in recording that the deceased Manckchand died out of homicidal violence.\n<\/p>\n
\t11. In order to substantiate that these accused persons A1 to A4 went to the shop of the deceased Manckchand at about 4.30 p.m. and attacked the deceased Manckchand indiscriminately, the prosecution examined P.W.1 as the eye-witness. Admittedly, P.W.1 is the younger brother of the deceased Manckchand. The Court is mindful of the caution made by the Apex Court and by the settled principles of law that before accepting the evidence of the relatives, the Court must exercise the test of careful scrutiny. Insofar as P.W.1 is concerned,  it is true that  he is the younger brother of the deceased.  The first comment made by the learned counsel for the appellant  is that the other three witnesses  were shown in the F.I.R but they were  not examined before the Court, cannot be countenanced. Nowhere  it is stated in the F.I.R. that those three witnesses have witnessed the occurrence. Under such circumstances, the only eye-witness was P.W.1.  From the evidence of P.W.1,  it could be seen that at 4.30 p.m., when he was along with his brother  in the pawn broker shop, A1 to A4 came there and A1 under the guise of redeeming the jewel asked for the jewel. Immediately, Manckchand went inside the safety room  situated inside the shop and at that time A1 to A4 followed him  and demanded for the entire jewels found inside the locker for which Manckchand refused. At that time, A1 to A4 indiscriminately cut him and it was P.W.1 who saw the same,  raised alarm  and crowd gathered and when the accused tried to escape, P.W.1  put down the shutter and closed the shop.   Even the  cross examination of P.W.1 remains unshaky. Hence, the evidence of P.W.1 though happened to be close relative of the deceased, his evidence inspires the confidence of the Court.  Needless to say that in a case like this, the Court can sustain conviction on a solitary testimony and an uncorroborated testimony, if it has inspired the confidence of the Court. P.W.1’s evidence is cogent, natural and convincing and hence, accepted rightly by the trial Court.\n<\/p>\n
\t12. The next factor is that immediately after the occurrence, P.W.1 rushed to the Police Station which is two kilometres from the place of occurrence and gave Ex.P1 complaint, on the strength of which a case came to be registered by P.W.8 Sub Inspector of Police in Crime No.1508\/91 against four accused. At this juncture,  the criticism  made by the learned senior counsel for the appellant is that Ex.P1 would indicate the name of the first accused only and the names of other three accused were not shown in Ex.P1 report. According to the learned counsel when P.W.1 gave evidence before the Court he has stated that he  knew the name of A1 only and not the other accused.  The  F.I.R. must  be  consistent  to  that of Ex.P1 report.  But a perusal of F.I.R. would clearly indicate the names of four accused along with  their father’s name and residential address. Under such circumstances, it is highly doubtful whether the F.I.R would have  come into existence  as put forth by the prosecution. This criticism  put forth by the learned counsel for the appellant is acceptable. But, as far as the instant case is concerned, the Court is unable to agree with the learned counsel  for the reason that what are exactly found  in  Ex.P1 without any change whatsoever are found in the F.I.R. At the top of Ex.P1 report, the names of the accused along with their  father’s name and address were found. It is recorded so in Ex.P1 report  and without any change, it was extracted in F.I.R.  It is true that the names of four accused along with their father’s name and address were found at the marginal note at the top of Ex.P1  which would clearly mean that the accused were apprehended immediately from the shop and all were taken to the Police Station and on enquiry, the Police officer should have entered the same at the top of Ex.P1 report. It is true that the police officer should have acted in over enthusiasm and due to over enthusiasm this mistake would have crept in, which, in the opinion of the Court  will not alter  the prosecution theory  or deviate    from the prosecution case and  the Court has to accept the case of the prosecution in that regard.\n<\/p>\n
\t13. Added further learned counsel, all the accused  persons were apprehended  red handed and they were arrested immediately and they were sent to Court. A comment was made by the learned counsel  that the confession statement recorded from the accused and the recovery of the materials objects from them,  cannot be believed. The learned counsel brought to the notice of the court, as per the prosecution case,  all the four accused were armed with a weapon each  viz., one sickle and three knives but the investigating officer would claim that  all these weapons were recovered from the accused pursuant to the confession statement. According to the expert P.W.3  at 8.00 p.m. on the date of occurrence, when he went  to the place of occurrence, the knives and  sickle were found. Had it been true that the investigating officer had gone to the spot and arrested all the accused, he would have recovered the weapons also  but as per the investigating officer they were actually recovered after the confession statement. As could be seen from the  evidence of P.W.3  a sickle and two knives  were  found   inside  the  shop  at 8.00 p.m. when he examined the place of occurrence. If his evidence is correct, the recovery of the weapons of crime pursuant to the confession statement as alleged by the investigating officer,  cannot be accepted. Therefore, insofar as the recovery of the material objects pursuant to the alleged confession statement is concerned, it has got to be rejected. Even when the recovery of the material objects viz., weapons of crime  and the confessional statement  are taken as false, the Court is of the considered opinion that the prosecution has got a case from the evidence of P.W.1. All these four accused  were immediately caught red handed  and therefore,  the identification of these accused did not arise at all. They were taken and produced before the Court. The clinching circumstances are the  evidence of P.W.1 coupled with the fact of arrest of A1 to A4  who were apprehended immediately when the  shutter of the shop was opened and at that time  when they  were found with deadly weapons along with the dead body of Manckchand in a pool of blood.  Under such circumstances, it is for the accused side to explain how they happened to be inside the shop along with the dead body of Manckchand. In the absence of any explanation for the same from the accused, the Court has no other option except to come to the conclusion that it was A1 to A4  who have caused the death of the deceased Manckchand.  The Court is of the considered opinion that the prosecution has proved its case beyond reasonable doubt. The ocular testimony of P.W.1 stood in full corroboration with the medical evidence of the post mortem doctor.\n<\/p>\n
\t14. As far as the contention put forth by the  learned counsel that on the next day at 11.00 p.m. i.e., on 13.9.91, A1 and A3 were  actually examined by P.W.5 doctor for the injuries sustained by them  is concerned, it does not carry any merit. From the records available, it could be seen  that the  investigating officer filed an application for police custody before the Magistrate and it was also ordered and only thereafter they were taken under custody. A1 and A3 were examined by the medical officer P.W.5  and the Accident register copy Ex.P.4 and P.5 in that regard were marked. Therefore, such point does not carry any merit. Further, it is true that the  F.I.R. which claimed to be prepared  at 5.15 p.m. on 12.9.91 has reached the learned Magistrate the next day at 7.00 a.m.  It is true that there was a delay. The Court is of the considered opinion that in a given case, if the evidence putforth  by the prosecution are believable  to sustain the conviction and merely because of the delay that has occurred in taking the F.I.R to the Magistrate by itself will not be a reason to doubt the prosecution case  or reject the prosecution case. Further, insofar as the other contention put forth learned counsel for the appellants  that while 13 articles were placed before the Court for the purpose of analysis along with the request, it was found that  20 articles were subjected to analysis. The learned counsel for the State brought to the notice of the Court 2 references. The first reference contains 13 articles and the second reference contains 20 articles and a clarification should have been given by the prosecution before the trial Court but they failed to do so. At this juncture, it has to be pointed out that even if chemical or serologist report has no relevance to the prosecution case, it would not in any way affect the case of the prosecution or  it cannot be made as a point in favour of the appellants. The contention of the learned counsel that  at the time of occurrence,  A1 to A4 were not actually in the shop as stated by the prosecution, they were brought thereafter and produced before the Court  was the consistent plea taken before the trial Court and equally here also.  From the evidence of P.W.1 coupled with the other circumstances narrated above, this plea cannot be countenanced.\n<\/p>\n
\t15.  The learned trial Judge has marshalled the evidence proper and  has taken a correct view, which in the opinion of this Court cannot be interfered with. The judgment of the lower court cannot be said to be lacking in reason or perverse. Hence, this Court is unable to notice any reason to interfere with the judgment of the lower court.\n<\/p>\n
\t16. In the result, the criminal appeals  fail and the same are dismissed.\n<\/p>\n
\t\t\t\t\t\t\t(M.C., J.) (C.S.K., J.)
\n\t\t\t\t\t\t\t\t21.07.2009
\nIndex : Yes\/No
\nInternet : Yes\/No
\nvsi\t\t\t\t\t\t\t<\/p>\n
\t\t\t\t\t\t\tM.CHOCKALINGAM, J.\n<\/p>\n
\t\t\t\t\t\t\t\tAND<\/p>\n
\t\t\t\t\t\t\t\tC.S.KARNAN, J.\n<\/p>\n
\t\t\t\t\t\t\t\t\t\t    vsi
\nTo<\/p>\n
1.  The  IV Additional Sessions Judge, Chennai<\/p>\n
2.  The Inspector of Police,
\n     R-1 Mambalam Police Station,
\n     Chennai..\n<\/p>\n
3.The Additional Public Prosecutor,
\n   High Court,
\n   Madras.\n<\/p>\n
\t\t\t\t\t\t\tCrl.Nos.541 & 551 of 2008<\/p>\n
\t\t\t\t\t\t\t\t\t21.07.2009<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Sikkandar @ Raja vs State Represented By on 21 July, 2008 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.07.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN Criminal Appeal Nos.541 & 551 of 2008 Sikkandar @ Raja .. Appellant in C.A.No.541\/2008 Gani .. Appellant in C.A.No.551\/2008 Vs. 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