Vijai v. State by: Inspector of PolicePerundurai Police Station

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 20-7-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRL.A.Nos.192 and 903 of 2006Vijai ..Appellant/A-2 in CA 192/2006Prakash ..Appellant/A-1 in CA 903/2006vsState by:Inspector of PolicePerundurai Police StationCrime No.413 of 2003Erode District ..Respondent in both appealsCriminal appeals preferred under Sec.374(2) of the Code ofCriminal Procedure against the judgment of the Additional DistrictCourt/Fast Track Court No.I, Erode, made in S.C.No.154 of 2005 dated27.1.2006.For Appellants: Mr.N.Manokaran in CA 192/2006 Mr.P.Venkatasubramanian in CA 903/2006For Respondent: Mr.N.R.Elango Additional Public ProsecutorCOMMON JUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)This judgment shall govern these two criminal appeals,C.A.No.192/2006 at the instance of A-2 and C.A.No.903/2006 at theinstance of A-1, who along with A-3 stood charged, tried and foundguilty by the Additional Sessions Division, Fast Track Court No.I, https://hcservices.ecourts.gov.in/hcservices/ Erode, in S.C.No.154/2005 and on being found guilty, awardedpunishment as follows:ACCUSEDCHARGESFINDINGPUNISHMENTA-1 to A-3450 IPCAcquittedA-1 to A-3392 IPCGuilty7 years RIA-1 to A-3364 IPCGuilty7 years RIA-1 to A-3201 IPCAcquittedA-1 to A-3302 IPCGuiltyLife imprisonment2.Necessary facts for the disposal of these appeals can bestated as follows:(a) P.W.1 was running a factory in the name and style ofSivajothi Packaging at Perundurai. P.W.1's sister was also apartner. About 40 persons were employed, among whom A-1, A-2, A-3and also the juvenile accused, apart from P.Ws.5 and 6 were employedduring the relevant time. P.W.1 used to leave the factory premisesat about 9.00 P.M. and come back and open the next morning by 7.00A.M. usually. As usual on 12.10.2003, he left the factory leaving acash of Rs.30000/- in his bureau after locking the inner side doorsof the cash box. At that time, the deceased Chinna Nagan who wasemployed as night watchman, was also present. On that day duringnight hours, P.W.2 along with the accused brought brandy along withchicken and other eatables, and they shared the same with thedeceased. As per the plan, they gave brandy to the deceased, andwhen he got fainted, they got inside and robbed Rs.30000/- from thecash box, and immediately they took the deceased in the jeep whichwas driven by A-1. All other accused joined, and when he was alive,they left him in the railway track, and thereafter they came back. (b) At that juncture, P.W.7 found A-2 and questioned why he wasthere, but without answering, he was staring, and they brought backthe jeep. At that time A-2, A-3 and the juvenile accused werewashing the jeep tires which was noticed by P.W.4. Thereafter, on13.10.2003, P.W.1 came to his factory and found the outer door lockedinside. He got inside and found the inner doors of the cash boxbroke open. He also noticed Rs.30000/- which he left in the lastnight, was stolen. The night watchman was also not found. When hecalled the employees, A-1 and A-3 along with the juvenile accused andother persons were present; but, A-2 was not found. A thoroughenquiry was made about A-2 as to his absence and since he belonged toOrissa whether he was making any attempt to leave for Orissa by thetrain scheduled by 2.00 P.M. that day. Even after verifying so, itwas not so. Then he was making enquiry. https://hcservices.ecourts.gov.in/hcservices/ (c) While the matter stood thus, P.W.10, the Head Constable, wason duty at Tiruppur Railway Police Station. The morning hours of13.10.2003 he was informed that there was a dead body found in therailway track within the jurisdiction of Pothanur Railway PoliceStation. The said complaint is marked as Ex.P5. After inspectingthe same, he registered a case in Crime No.562 of 2003 under Sec.174of Cr.P.C. Ex.P6, the printed FIR, was despatched to the Court. Acopy was also sent to the Tahsildar. P.W.10 made an inspection andprepared an observation mahazar and a rough sketch, Exs.P7 and P8respectively. Then he conducted inquest on the dead body in thepresence of witnesses and panchayatdars and prepared an inquestreport, Ex.P9. Thereafter, the dead body was sent to the GovernmentHospital for postmortem along with a requisition.(d) The dead body was subjected to postmortem by P.W.9, theCivil Assistant Surgeon, attached to the Government Head QuartersHospital, Coimbatore at Tirupur, and he has issued a postmortemcertificate, Ex.P2. He has given his final opinion under Ex.P3 thatthe deceased would appear to have died of shock and haemorrhage dueto head injury and multiple injuries.(e) In the meanwhile, P.W.1 proceeded to Perundurai PoliceStation and gave a report, Ex.P1, on the strength of which a casecame to be registered by P.W.17, the Sub Inspector of Police, inCrime No.413/2003 under Sections 457 and 380 of IPC. The case wastaken up for investigation. He went to the spot, made an inspectionand prepared an observation mahazar, Ex.P27. The material objectsfrom the place of occurrence were also recovered. (f) On 21.10.2003, A-2 was arrested, and he came forward to givea confessional statement, which was recorded. Pursuant to the same,he produced M.O.4, crowbar, which was recovered under a cover ofmahazar. A-1 and A-3 were also arrested. They gave confessionalstatements. The admissible part is marked as Exs.P17 and P18respectively. Pursuant to the same, they produced currencies indifferent denominations which are marked as M.O.2 series, and theywere recovered under the mahazars, Exs.P19 to P24. The accused werealso sent for judicial remand. (g) P.W.18, the Inspector of Police of that Circle, took upfurther investigation, examined the witnesses and recorded theirstatements. Then he altered the case to Sections 457, 381 and 302 ofIPC. Ex.P29, the amended report, was sent to the Court. Oncompletion of investigation he filed the final report against theaccused under Sections 450, 393, 364 and 302 of IPC.3.The case was committed to Court of Session, and necessarycharges were framed. In order to substantiate the charges, theprosecution marched 18 witnesses and also relied on 27 exhibits and25 material objects. On completion of the evidence on the side of https://hcservices.ecourts.gov.in/hcservices/ the prosecution, the accused were questioned under Sec.313 of Cr.P.C.as to the incriminating circumstances found in the evidence of theprosecution witnesses which he flatly denied as false. No defencewitness was examined. The trial Court heard the arguments advancedand took the view that the prosecution has proved the case beyondreasonable doubt and hence found the appellants guilty and awardedpunishment as stated above. Hence these appeals at the instance ofthe appellants.4.Advancing arguments on behalf of A-1, the learned Counselwould submit that according to the prosecution, the occurrence hastaken place on 12.10.2003; that the appellants were shown asemployees in the factory of P.W.1; that no documentary evidence wasforthcoming to prove that fact; that it was the specific case of theprosecution that Rs.30000/- was actually stolen from the factory ofP.W.1 on the night hours of 12.10.2003; but, no documentary evidencewas forthcoming; that what was available was the evidence of P.W.1 tothat fact; but, it cannot be believed; and that there is no evidenceto show that cash balance was actually available that time. 5.Added further the learned Counsel that according to P.W.2, theaccused went over to get brandy, chicken and other eatables, and theaccused persons and P.W.2 all shared along with the watchman, andthus he became fainted; but when the postmortem was conducted byP.W.9, the Doctor, he has given a categorical opinion and has giventestimony at the time of the cross-examination that there was nothingto indicate that he has either consumed brandy or he had takenchicken, and thus it would be quite evident that the evidence ofP.W.2 cannot be believed. 6.The learned Counsel would further add that as far as the lastseen theory is concerned, actually no one of the witnesses namelyP.Ws.4 to 7, have spoken to the fact that any one of them saw thedeceased person in the company of the accused, and thus it cannot becalled as a last seen theory. 7.The learned Counsel would further contend that the fingerprint expert was actually called, and he took the finger prints fromthe available materials; that immediately the investigation was takenup; that it is also candidly admitted by the Investigator that thefinger prints of the accused were also taken, but they did not tally;that there were 50 persons employed at the time when the occurrencehas taken place, and thus it would be quite probable that somebodyelse would have committed the crime; that as far as the recovery isconcerned, merely because of the production of the currencies beforethe Court, it cannot be taken that they were recovered from theaccused persons; that under such circumstances, when the prosecutionhad no direct evidence to offer, it should have placed and provedsufficient circumstances which must be looked with all caution, andthus the prosecution has not proved its case. https://hcservices.ecourts.gov.in/hcservices/

8.In the second line of his arguments, the learned Counsel wouldsubmit that if the Court agrees with the case of the prosecution asto the factual position that the currencies were recovered from A-1,he could be found guilty under Sec.411 of IPC in the absence of anyevidence pointing that the accused had got any involvement in thecrime of murder. In support of his contention, the learned Counselrelied on two decisions of the Apex Court reported in 1993 SCC (CRI)999 (UNION TERRITORY OF GOA V. BEA VENTURA D'SOUZA AND ANOTHER) andin 1994 SCC (CRI) 1721 (GAUTAM MAROTI UMALE V. STATE OF MAHARASHTRA).9.Advancing arguments on behalf of A-2, the learned Counselwould submit that in the instant case, there was no evidence toindicate that A-2 was employed during the relevant time under P.W.1;that so long that fact is not proved, there is nothing to indicatethat A-2 was actually employed during the relevant time; that it wasclaimed by the Investigator that admittedly, he was a man from Orissaand he was arrested in Orissa on 21.10.2003, and thereafter he hasgiven a statement in Hindi, and P.W.16 was the person who translatedthe same, and thus it would be quite clear that he was not conversantto the language; that it has been translated, and thus it cannot berelied upon. 10.Added further the learned Counsel that what was all recoveredfrom A-2 even as per the prosecution case, was only M.O.4, crowbar;that it is not the case of the prosecution that he has taken away anypart of the amounts alleged to have been robbed; that if really hehas participated in the crime, one would naturally expect him to takethe part of the amounts, but has not done so. 11.The learned Counsel would further submit that as far as theoccurrence that has taken place on 12.10.2003 was concerned, the casewas registered on 13.10.2003 at about 4.00 P.M. and thus huge delaywas noticed which remained unexplained; that apart from that, the FIRhas reached the Court on 15.10.2003 at about 10.00 A.M.; and thateven the Judicial Magistrate's Court is actually situated within thesame compound where the police station is situated. 12.The learned Counsel would further add that as far as thequestioning under Sec.313 of Cr.P.C. was concerned, it was actuallyasked in Tamil; that he could not understand what was actually askedto him since he was not conversant with the language; that as far asthe recovery is concerned, the evidence that was put forth wasactually shaky; that the witnesses who have spoken in favour of theprosecution namely P.Ws.4 to 6, were all employed under P.W.1; thatP.W.7 was an utter stranger; that it was not the case that he wasalready known to A-2; that under the circumstances, their evidencecould not be relied for any purpose at all; that the prosecution hasmiserably failed to prove its case, and hence he is entitled foracquittal in the hands of this Court. https://hcservices.ecourts.gov.in/hcservices/

13.The Court heard the learned Additional Public Prosecutor onall the above contentions and paid its anxious consideration on thesubmissions made.14.It is not in controversy that the dead body of Chinna Naganwas found on the railway track, and P.W.10 after the registration ofthe case in Crime No.562/2003 has given intimation to the Tahsildarwho was served with the copy of the FIR. Then he went to the placewhere the dead body was found, and following the inquest, the deadbody was subjected to postmortem by P.W.9 the Doctor, attached to theGovernment Hospital, who has given a categorical opinion as a witnessbefore the Court and also through the postmortem certificate that hedied out of shock and haemorrhage due to the injuries sustained byhim. Thus the prosecution had established the fact that he died outof homicidal violence. 15.The gist of the case of the prosecution as could be seen wasthat A-1, A-2, A-3 and the juvenile accused in whose respect the casewas split up, were employed in the factory of P.W.1 during therelevant time; that A-2 was a man from Orissa; that on the date ofoccurrence i.e., 12.10.2003, as usual P.W.1 left his factory premisesleaving Rs.30000/- cash in his cash box, and after locking outside hewent; that at that time, the deceased was employed as night watchmanin the factory, and during night hours, the occurrence of robbery hastaken place. According to the prosecution, the accused personsbrought brandy and gave to the deceased, and when he was fainted,taking advantage of the same, they robbed the amounts and took thewatchman to a nearby railway track and left him there, and thuscaused the death, and they wanted to escape from the clutches of law.In order to prove these charges, the prosecution had no directevidence to offer. This Court is mindful of the caution that in agiven case where the prosecution rested its case on thecircumstantial evidence, it must place and prove all necessarycircumstances, and also it must make a chain without a snap and alsopointing to the hypothesis that except the accused no one could havecommitted the offence. In the instant case, this Court is thoroughlysatisfied that the prosecution has placed and proved the necessarycircumstances in order to bring home the guilt of the accused. Theycan be stated as follows.16.The fact that A-1, A-2, A-3 and the juvenile accused wereemployed during the relevant period in the factory of P.W.1 is spokento not only by P.W.1, but his evidence stood corroborated by P.W.2who was actually working there, and also P.W.5 who was working asDriver, and thus, the non production of any documentary evidence toshow that they were all employed during the relevant time cannot be areason to disbelieve their evidence.17.Apart from the above, according to P.W.1, he left thepremises leaving the cash of Rs.30000/- in the cash box, and he came https://hcservices.ecourts.gov.in/hcservices/ to the factory only in the next morning. From his evidence, it wouldbe quite evident that Chinna Nagan was the night watchman in thefactory. The evidence of P.W.2 would go to show that it was theaccused and himself who brought brandy and also chicken along withother eatables, and all of them shared, and it was also given toChinna Nagan the night watchman, and he was also found making faultywalks outside. Now the contention put forth by the learned Counselfor the appellants is that the evidence of P.W.2 cannot be acceptedfor the simple reason that not only the postmortem certificate butalso the evidence of the Doctor was to the effect that nothing wasfound in the stomach indicating that he consumed liquor or anychicken food etc. It is to be remembered that they have taken thisfood and also brandy at about 10.00 or 11.00 P.M. But, the occurrencehas taken place in the late night. It is also pertinent to point outthat at the time when he was actually fainted after consuming theliquor, they took him in a jeep and left in the railway track. Itremains to be stated that at first, the train crossed the line, andhe was crushed, and cause of death remained unknown. The dead bodywas found in the next morning. There was sufficient interval fordigestion of chicken food that was actually taken by him. Apart fromthat, the dead body was subjected to postmortem after a long lapse ofnearly about 24 hours. Under the circumstances, it could not bespelt out as to the liquor taken by him, and therefore thiscontention has got to be rejected. 18.Besides the above, the evidence of P.W.5 was to the effectthat he found A-1 driving the jeep during night hours, and the otheraccused were getting inside. Hence, it would be quite clear from hisevidence that it was A-1 who drove the jeep, and A-2, A-3 and thejuvenile accused had taken the jeep from the place. It is pertinentto point out that A-1 was not the driver of the jeep, and they hadnothing to do with the jeep at all. But, the fact that the jeep wasactually moved from the place of occurrence is spoken to by P.W.5,and it was he who noticed the same at that time. The case of theprosecution was that Chinna Nagan was given liquor and found fainted,and taking advantage of the same, they have taken him in the jeep.The connecting link was P.W.7, who found A-2 near the railway track,and he also questioned him; but, he was moving by staring. Thatapart, the dead body was also found in the railway track. Thus thepresence of A-2 at the place of occurrence and that too nearby therailway track where the dead body was found, is a connecting linkindicating A-2's involvement in the crime. Added circumstance wasthat after the crime, it was P.W.4 who found A-2, A-3 and thejuvenile accused washing the tires of the jeep during night hours,and they had no occasion to do like that, but they wanted to make aescape from the clutches of law. All the above would go to show thatthe jeep was actually taken from the place of occurrence, and leavingChinna Nagan in the railway track, they have come back. https://hcservices.ecourts.gov.in/hcservices/

19.Above all, A-2 was actually arrested in Orissa and brought.Now the contention put forth by the learned Counsel for A-2 that hadhe got the intention to join others in robbing the cash, he wouldhave shared the looted amount cannot be accepted for the simplereason that after coming to know that a case came to be registered,and a search was on, he ran to Orissa, and thus he was actuallysecured from Orissa. It remains to be stated that he gave aconfessional statement. Though it was in Hindi, it was translated toTamil by P.W.16. A statement under Sec.161 Cr.P.C. has beenrecorded, and it was produced before the Court. Consequent upon theconfession, M.O.4, crowbar, used for breaking open the lock of thecash box and of the doors of the factory was recovered from A-2.M.O.4 was actually the weapon used for commission of the crime, andfollowing the confessional statement made by him, it was recoveredunder a cover of mahazar. A witness has been examined whose evidenceis also speaking of the nexus of the crime with A-2. 20.As far as the other accused are concerned, all the currencieshave been recovered and produced before the Court pursuant to theconfessional statements marked as Exs.P17 and P18. The witnesseshave been examined in that regard, and the currencies stolen from thefactory of P.W.1 have been recovered from them within a short span oftime. Under the circumstances, it is a fit case where thepresumption under Sec.114-A of the Evidence Act could be drawn. In agiven case like this, when a stolen property is recovered from theaccused within a reasonable time, it could be presumed that he is thethief or he is a person who is in custody of the stolen property. Inthe instant case, they were found to be in possession of the stolenproperty within a short span of time; but they had no explanation tooffer. It is a fit case where a presumption could be drawn under thesaid provisions of the Evidence Act. Now the contention put forth bythe learned Counsel for the appellants that number of persons wereactually employed, and investigation was not taken up in that regardcannot be said to be a sound argument for the simple reason that theInvestigator was able to fix the accused, and on their arrest, theygave confessional statements, and the currencies have actually beenrecovered, and then the story was unfolded. In such circumstances,there was no need for investigation to be made in that line. As faras P.Ws.2 to 6 were concerned, they were all actually employed byP.W.1 during the relevant time. Why and under what circumstance theyhave come to Court to give false evidence against the accused, thedefence is unable to bring to the notice of the Court any reason. 21.In a case like this, there cannot be any direct evidencesince the occurrence has taken place in the night hours, and theyhave caused the death of the night watchman and robbed the cash; but,one can expect the circumstantial evidence. This Court is mindful ofthe caution made by the Apex Court, and in the case on hand as statedabove, there is a clear link pointing to the nexus of the accusedpersons with the crime. Hence the contentions put forth by the https://hcservices.ecourts.gov.in/hcservices/ learned Counsel do not carry any merit whatsoever, and they areliable to be rejected and accordingly rejected. The trial Court wasperfectly correct in finding the appellants/accused guilty as per thecharges and awarding punishment. There is nothing to interfereeither in the factual or in the legal position.22.In the result, both the criminal appeals fail, and they aredismissed confirming the judgment of the trial Court. sd/-Asst.Registrar/true copy/Sub Asst.Registrarnsv/To1.The Additional District Judge Fast Track Court No.I Erode.2.The Inspector of Police Perundurai Police Station Erode District.3.The Superintendent, Central Prison, Coimbatore.4.The Public Prosecutor High Court, Madras.+ 1 c.c. to Mr. N. Manokaran, Advocate. S.R.No.32694. CRL.A.Nos.192 and 903 of 2006KA (CO)GSK 29.07.2009.