Sikkandar @ Raja.. & Ors. v. State

IN THE HIGH COURT OF JUDICATURE AT MADRAS(*) DATED : 21.07.2009 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCriminal Appeal Nos.541 & 551 of 2008Sikkandar @ Raja..Appellant in C.A.No.541/2008Gani..Appellant in C.A.No.551/2008 Vs.State represented byThe Inspector of Police,R-1 Mambalam Police Station,Chennai.(Crime No.1508/1991 ) ..Respondent in both the appeals These criminal appeals have been preferred under Section 374(2)Cr.P.C. against the judgment of conviction and sentence passed by thelearned IV Additional Sessions Division, Chennai made in S.C.No.62 of1992 dated 12.6.2008For Appellantin Crl.A.541/2008 : Mr.V.Gopinath, Senior counsel for Mr.A.Gandhi For Appellantin Crl.A.551/2008 : Mr.S.Xavier FelixFor Respondent : Mr.N.R.Elango, APP COMMON JUDGMENT(The judgment of the Court was delivered by M.CHOCKALINGAM, J.)This judgement shall govern these two appeals viz.,Crl.A.No.541/2008 by A3 and Crl.A.No.551/2008 by A2. A challenge ismade to the judgement of the learned IV Additional SessionsDivision, Madras made in S.C.No.62/1992 whereby these two appellantsalong with 5 others ranked as A1, A4 to A7 were charged and on trial,they were found guilty as follows: https://hcservices.ecourts.gov.in/hcservices/ AccusedChargesFindingsSentenceA-1 to A4149 IPC Not guiltyA-1 to A-4397 IPCNot guiltyA-1 to A-4302 r/w 34 IPCGuiltyLifeimprisonmentalong with fineof Rs.25,000/-i/d 1 year R.I.A-6 and A-7149 IPCNot guiltyA-6 and A-7397 IPCNot guiltyA-6 and A-7302 r/w 34 IPCNot guiltyThe sentences are ordered to run concurrently.2. Though A1 and A4 were found guilty by the trial Court, theyhave not made any appeal against the judgement. The other accused A5to A7 were ordered to be acquitted by the trial Court. 3. The case of the prosecution before the trial Court can bestated as follows.(a) P.W.1 Gouthamchand and his brother Manckchand were running apawn broker shop at D.No.2A/2, Sivaprakasam Street,T.Nagar, Madras inthe 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, on12.9.1991, 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. A1informed the deceased Manckchand that he has come to redeem thejewels. Hence, leaving the accused and P.W.1 outside, the deceasedManckchand 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 A4demanded Manckchand to part with all the jewels. Since Manckchandrefused, all the four accused who were armed with weapons attackedManckchand 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 andthey also witnessed the occurrence. When the accused were about toescape from the place, immediately, P.W.1 along with others suddenlyclosed the shutter of the shop. Thus, all the accused persons alongwith the jewels and weapons were caught inside the shop. P.W.1 rushedto R1- Mambalam Police Station and gave Ex.P1 report at about 5.15p.m. to P.W.8 Sub Inspector of Police on the strength of Ex.P1report,he registered a case in Crime No.1508/91 under Sections 302and 380 IPC. The printed First Information Report is Ex.P10 and thesame was despatched to Court.(b) P.W.12 Inspector of Police, who was Additional in charge ofMambalam Circle, on intimation, came over to Mambalam Police Stationand got a copy of the F.I.R. . He gave intimation to Police https://hcservices.ecourts.gov.in/hcservices/ Photographer, Scientific Officer and Finger Print experts and then herushed to the spot along with the Sub-Inspector of Police. He openedthe shutter in the presence of witnesses and apprehended A1 to A4immediately. They were all brought to the Police Station and atabout 6.15 p.m. the confessional statement of A1 to A4 were recordedbetween 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.P16in the presence of witnesses and drew a rough sketch Ex.P17. Thescene of occurrence was actually photographed through P.W.4photographer. Further, the Scientific Officer collected thematerials objects at the place of occurrence. The InvestigatingOfficer collected the blood stained earth from the place ofoccurrence. Following the inquest made by the Investigating Officer,he prepared the inquest report Ex.P.19. The dead body of the deceasedwas subjected to post mortem. (c) P.W.7 doctor attached to Government Hospital conductedautopsy on the dead body of Manckchand and gave the post mortemcertificate Ex.P.6 wherein he has opined that the deceased wouldhave died of shock and haemorrhage as a result of multiple injuries.All the material objects recovered from the place of occurrence andalso the material objects recovered pursuant to the statement made bythe accused and from the dead body of the deceased were subjected tochemical analysis which resulted in Ex.P7 chemical report and Ex.P9serologist report and they were also placed before the JudicialMagistrate Court. Further investigation was proceeded with and theAmbassadar car which was actually used by the accused was recoveredand the witnesses have been examined to that effect. On 23.9.91, theother accused viz., A5 to A7 were also arrested and remanded tojudicial custody. On completion of the investigation, theinvestigating officer filed a final report.(d) The case was committed to the Court of Sessions. Necessarycharges were famed. In order to substantiate the charges levelledagainst the accused, the prosecution examined 12 witnesses and alsorelied on 24 exhibits and 15 material objects. On completion of theevidence on the side of the prosecution, the accused were questionedunder Section 313 Cr.P.C. as to the incriminating circumstances foundin the prosecution witnesses and they denied them as false. Nodefence witness was examined. The Court heard the arguments advancedon either side and took a view that the prosecution has proved itscase beyond reasonable doubt and rendered the judgement of convictioninsofar as A1 to A4 are concerned and insofar as A5 to A7 areconcerned, the trial Court recorded the judgement of acquittal. Theseappeals have been brought forth by A3 and A2 respectively. 4. Advancing the argument on behalf of A3, learned Senior counselwould submit that according to the prosecution, the occurrencehad taken place at 4.30 p.m. on 12.9.1991 and Ex.P1 report wasgiven at 5.15 p.m. According to the prosecution, P.W.1 hascategorically stated in his evidence that he could not readTamil but could speak Tamil. In the instant case, it is highlydoubtful whether Ex.P.1 report could have come into existence https://hcservices.ecourts.gov.in/hcservices/ as put forth by the prosecution. According to P.W.1, he went to thePolice Station and gave a statement orally. The same was recordedand thus, Ex.P1 report came into existence. On the trial, P.W.8 SubInspector of Police has stated that it is he who has registered thecase, but according to him, a complaint was handed over to him.Hence, it cast a doubt whether Ex.P1 report would have come intoexistence as put forth by the prosecution. Added further learnedcounsel, if Ex.P1 report is perused it would indicate that the nameof A1 alone is found. Even as per the evidence of P.W.1, he knewonly 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 theirfathers and their residential addresses were found. Therefore, it isnothing 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 MagistrateCourt only at 7.00 a.m. i.e., the next day morning of the date ofoccurrence. If the case was actually registered at 5.15 p.m., whythere was delay of 14 hours in the F.I.R. reaching the Magistrate isnot known. Therefore, all would go to show that the case of theprosecution that the accused A1 to A4 were actually found inside theclosed shop cannot be believed. The case of the prosecution, P.W.1has witnessed the occurrence, he came to the Police Station, thenimmediately, the accused were apprehended by opening the shutter ofthe shop are all nothing but false. It is a false story created bythe prosecution in order to shape its case. Under suchcircumstances, the accused are entitled for acquittal but the trialCourt without appreciation of the defence plea has taken anerroneous view and found A1 to A4 guilty. Hence, the judgement ofthe trial Court has got to be set aside by acquitting the accused bythis Court.5. Advancing the argument on behalf of the appellant, ranked asA2, the learned counsel would submit that according to theprosecution the occurrence had taken place at 4.30 p.m. on12.9.1991. Even as per Ex.P1 report P.W.1 and three other witnesseshave witnessed the occurrence but no one has been examined by theprosecution except P.W.1 for the reason best known to them. Thelearned counsel would further add that the investigating officer hascategorically stated that the photographer was called for but nophotographs were marked through the photographer who was examined asP.W.2. Thus, it would clearly indicate that they were allconcocted story in order to suit the prosecution case. Equally,the finger print expert was also called for and he should havegiven a report, but actually the report was not broughtbefore the Court and if it was produced before Court, itwould go against the prosecution case. The scientific expert wasalso called for and he made inspection at 8.00 p.m. He prepared areport and the same was marked as Ex.P2. When it is gone into itwould clearly reveal that the material objects viz., sickle andknives were actually found inside the shop at the place ofoccurrence. If to be so, the claim made by the investigating officerthat the accused were actually apprehended and their confessionalstatements were recorded and pursuant to the confession statement https://hcservices.ecourts.gov.in/hcservices/ three knives and one sickle were recovered are nothing but a falsestory. 6. Added further learned counsel, if it is true that theseaccused persons were actually arrested and taken to custody, theyshould have been produced before the Magistrate Court but they weretaken for medical examination, the next day i.e., on 13.9.1991 at11.00 p.m., as could be seen from Ex.P4 and Ex.P5 wherein P.W.5doctor has noted that A1 and A3 were produced on 13.9.1991 at 11.00p.m. All would indicate that they were not remanded as put forth bythe prosecution. The arrest and recovery coupled with the evidenceof P.W.5 would clearly indicate that the major part of theprosecution cannot be believed. 7. Added further learned counsel, only 13 objects were placedbefore the Judicial Magistrate along with the requisition by theinvestigating officer for the purpose of analysis by the Forensiclaboratory but when the document in that regard was perused, it wouldreveal that 20 articles were sent for analysis. There is discrepancyin the number of objects sent to Forensic department and duty is castupon the prosecution to clarify the same before the trial Court butfailed to do so. Added further learned counsel, though the sickle wasnot actually mentioned in the earlier document, it finds place inthe analyst report. How the sickle came into at the later stageremains unknown. All would go to show that the prosecution did notprove the true state of affairs. 8. The learned counsel would further add that the scene ofoccurrence is a public place and it is also a congested area andnumber of shops were there but not even one independent witness wasexamined. There are lot of discrepancies in the evidence of P.W.1, hechanges his version from time to time. He has stated at one pointof 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 butas per the prosecution case, all the four accused were having aweapon each viz., one sickle and three knives and there is noquestion of one accused giving a weapon to the other accused toattack the deceased. Hence, P.W.1 could not have seen the occurrenceat all . If the evidence of P.W.1 was not believed, the prosecutionhas no further evidence to offer and the Court has to reject the caseof the prosecution outright. Hence, the accused/ appellants areentitled for acquittal in the hands of this Court.9. The Court heard the learned Additional Public Prosecutor onthe above contentions and paid its anxious consideration on thesubmissions made. 10. It is not in controversy that one Manckchand brother ofP.W.1 was done to death in an incident that had taken place at 4.30p.m. on 12.9.1991 in Anand Bankers at Mambalam, Madras. Following theregistration of the case by P.W.8, the investigating officer P.W.12took up investigation and made inquest on the dead body of thedeceased Manckchand and prepared the inquest report Ex.P.19 and thedead body was subjected to post mortem. P.W.7 doctor conducted https://hcservices.ecourts.gov.in/hcservices/ autopsy on the dead body of the deceased Manckchand and gave hiscategoric opinion as a witness before the Court and through thecontents in the post mortem certificate Ex.P6 that the deceased diedout of shock and haemorrhage due to the multiple injuries sustained.The fact that Manckchand died out of homicidal violence was neverdisputed by the appellants before the trial Court. Hence, the trialCourt is perfectly correct in recording so and this Court also findsno impediment in recording that the deceased Manckchand died out ofhomicidal violence.11. In order to substantiate that these accused persons A1 to A4went to the shop of the deceased Manckchand at about 4.30 p.m. andattacked the deceased Manckchand indiscriminately, the prosecutionexamined P.W.1 as the eye-witness. Admittedly, P.W.1 is the youngerbrother of the deceased Manckchand. The Court is mindful of thecaution made by the Apex Court and by the settled principles of lawthat before accepting the evidence of the relatives, the Court mustexercise the test of careful scrutiny. Insofar as P.W.1 is concerned,it is true that he is the younger brother of the deceased. Thefirst comment made by the learned counsel for the appellant is thatthe other three witnesses were shown in the F.I.R but they were notexamined before the Court, cannot be countenanced. Nowhere it isstated in the F.I.R. that those three witnesses have witnessed theoccurrence. 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., whenhe was along with his brother in the pawn broker shop, A1 to A4 camethere and A1 under the guise of redeeming the jewel asked for thejewel. Immediately, Manckchand went inside the safety room situatedinside the shop and at that time A1 to A4 followed him and demandedfor the entire jewels found inside the locker for which Manckchandrefused. At that time, A1 to A4 indiscriminately cut him and it wasP.W.1 who saw the same, raised alarm and crowd gathered and whenthe accused tried to escape, P.W.1 put down the shutter and closedthe shop. Even the cross examination of P.W.1 remains unshaky.Hence, the evidence of P.W.1 though happened to be close relative ofthe deceased, his evidence inspires the confidence of the Court.Needless to say that in a case like this, the Court can sustainconviction on a solitary testimony and an uncorroborated testimony,if it has inspired the confidence of the Court. P.W.1's evidence iscogent, natural and convincing and hence, accepted rightly by thetrial Court.12. The next factor is that immediately after the occurrence,P.W.1 rushed to the Police Station which is two kilometres from theplace of occurrence and gave Ex.P1 complaint, on the strength ofwhich a case came to be registered by P.W.8 Sub Inspector of Policein Crime No.1508/91 against four accused. At this juncture, thecriticism made by the learned senior counsel for the appellant isthat Ex.P1 would indicate the name of the first accused only and thenames of other three accused were not shown in Ex.P1 report.According to the learned counsel when P.W.1 gave evidence before theCourt he has stated that he knew the name of A1 only and not theother accused. The F.I.R. must be consistent to that of Ex.P1report. But a perusal of F.I.R. would clearly indicate the names of https://hcservices.ecourts.gov.in/hcservices/ four accused along with their father's name and residential address.Under such circumstances, it is highly doubtful whether the F.I.Rwould have come into existence as put forth by the prosecution.This criticism put forth by the learned counsel for the appellant isacceptable. But, as far as the instant case is concerned, the Courtis unable to agree with the learned counsel for the reason that whatare exactly found in Ex.P1 without any change whatsoever are foundin the F.I.R. At the top of Ex.P1 report, the names of the accusedalong with their father's name and address were found. It isrecorded so in Ex.P1 report and without any change, it was extractedin F.I.R. It is true that the names of four accused along with theirfather's name and address were found at the marginal note at the topof Ex.P1 which would clearly mean that the accused were apprehendedimmediately from the shop and all were taken to the Police Stationand on enquiry, the Police officer should have entered the same atthe top of Ex.P1 report. It is true that the police officer shouldhave acted in over enthusiasm and due to over enthusiasm this mistakewould have crept in, which, in the opinion of the Court will notalter the prosecution theory or deviate from the prosecutioncase and the Court has to accept the case of the prosecution in thatregard. 13. Added further learned counsel, all the accused persons wereapprehended red handed and they were arrested immediately and theywere sent to Court. A comment was made by the learned counsel thatthe confession statement recorded from the accused and the recoveryof the materials objects from them, cannot be believed. The learnedcounsel brought to the notice of the court, as per the prosecutioncase, all the four accused were armed with a weapon each viz., onesickle and three knives but the investigating officer would claimthat all these weapons were recovered from the accused pursuant tothe 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 theinvestigating officer had gone to the spot and arrested all theaccused, he would have recovered the weapons also but as per theinvestigating officer they were actually recovered after theconfession statement. As could be seen from the evidence of P.W.3 asickle 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 confessionstatement as alleged by the investigating officer, cannot beaccepted. Therefore, insofar as the recovery of the material objectspursuant to the alleged confession statement is concerned, it has gotto 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 acase from the evidence of P.W.1. All these four accused wereimmediately caught red handed and therefore, the identification ofthese accused did not arise at all. They were taken and producedbefore the Court. The clinching circumstances are the evidence ofP.W.1 coupled with the fact of arrest of A1 to A4 who wereapprehended immediately when the shutter of the shop was opened andat that time when they were found with deadly weapons along with https://hcservices.ecourts.gov.in/hcservices/ the dead body of Manckchand in a pool of blood. Under suchcircumstances, it is for the accused side to explain how theyhappened to be inside the shop along with the dead body ofManckchand. In the absence of any explanation for the same from theaccused, the Court has no other option except to come to theconclusion that it was A1 to A4 who have caused the death of thedeceased Manckchand. The Court is of the considered opinion that theprosecution has proved its case beyond reasonable doubt. The oculartestimony of P.W.1 stood in full corroboration with the medicalevidence of the post mortem doctor. 14. As far as the contention put forth by the learned counselthat on the next day at 11.00 p.m. i.e., on 13.9.91, A1 and A3 wereactually examined by P.W.5 doctor for the injuries sustained by themis concerned, it does not carry any merit. From the recordsavailable, it could be seen that the investigating officer filed anapplication for police custody before the Magistrate and it was alsoordered and only thereafter they were taken under custody. A1 and A3were examined by the medical officer P.W.5 and the Accident registercopy Ex.P.4 and P.5 in that regard were marked. Therefore, such pointdoes not carry any merit. Further, it is true that the F.I.R. whichclaimed to be prepared at 5.15 p.m. on 12.9.91 has reached thelearned Magistrate the next day at 7.00 a.m. It is true that therewas a delay. The Court is of the considered opinion that in a givencase, if the evidence putforth by the prosecution are believable tosustain the conviction and merely because of the delay that hasoccurred in taking the F.I.R to the Magistrate by itself will not bea reason to doubt the prosecution case or reject the prosecutioncase. Further, insofar as the other contention put forth learnedcounsel for the appellants that while 13 articles were placed beforethe Court for the purpose of analysis along with the request, it wasfound that 20 articles were subjected to analysis. The learnedcounsel for the State brought to the notice of the Court 2references. The first reference contains 13 articles and the secondreference contains 20 articles and a clarification should have beengiven by the prosecution before the trial Court but they failed to doso. At this juncture, it has to be pointed out that even if chemicalor serologist report has no relevance to the prosecution case, itwould not in any way affect the case of the prosecution or it cannotbe made as a point in favour of the appellants. The contention of thelearned counsel that at the time of occurrence, A1 to A4 were notactually in the shop as stated by the prosecution, they were broughtthereafter and produced before the Court was the consistent pleataken before the trial Court and equally here also. From theevidence of P.W.1 coupled with the other circumstances narratedabove, this plea cannot be countenanced.15. The learned trial Judge has marshalled the evidence properand has taken a correct view, which in the opinion of this Courtcannot be interfered with. The judgment of the lower court cannot besaid to be lacking in reason or perverse. Hence, this Court is unableto notice any reason to interfere with the judgment of the lowercourt. https://hcservices.ecourts.gov.in/hcservices/

16. In the result, the criminal appeals fail and the same aredismissed. Sd/Asst.RegistrarDated : 29.07.2009(*) Corrected as per Order dated 03.09.209 by D.R.(J) in letter dated 02.09.2009 given by the Counsel for Appellant.sd/-Asst.RegistrarDated : 03.09.2009/true copy/ Sub Asst.RegistrarvsiTo1. The IV Additional Sessions Judge, Chennai2. -Do- Thro' The Principal Sessions Judge, City Civil Court, Chennai.83. The XVII Metropolitan Magistrate Court, Saidapet, Chennai.4. -Do-Thro' The Chief Judicial Magistrate, Egmore, Chennai. To be substituted5. The Inspector of Police, R-1 Mambaam Police Station, Chennai. for the order 6. The Director General of Police, Mylapore, Chennai already despatched7. The District Collector, Chennai. on 06.08.2009.8. The Superintendent of Prison, Central Prison, Puzhal, Chennai. 9. The Additional Public Prosecutor, High Court, Madras 104.10.The Section Officer, Criminal Section, High Court, Madras. 1 cc To Mr.S.Xavier Felix, Advocate, SR.337071 cc To Mr.A.Gandhi, Advocate, SR.33324 Crl.A.Nos.541 & 551 of 2008RSI(CO) SRA(29/7/2009)RSY (CO) GSK 03.09.2009.