Selvam v. STATE Rep. By the Inspector of Police Arani Town Police Station

imprisonment in case of default in payment of fine. The learnedtrial judge also directed collection of the fine amount and paymentof the same to P.W.1 as compensation under Section 357(1)(b) ofCr.P.C. Challenging the conviction and sentence, the appellant(A2) has come forward with the present appeal under Section 374Cr.P.C on various grounds set out in the appeal petition.2. The case of the prosecution, in brief, is as follows:-i) The deceased Sivasamy, husband of P.W.1 was a taxi driverby profession. He had been issued a driving license under Ex.P3.At the relevant point of time late Sivasamy was functioning as thedriver of an Ambassador car (taxi) belonging to P.W.2-Varadhavelubearing Regn.No.TSL 9357. The said Sivasamy, who left his home on07.08.1997 in connection with his job as taxi driver, did notreturn thereafter. Having waited in vain for about five days inthe hope that he would return, his wife Muthulakshmi (P.W.1) lodgeda complaint, marked as Ex.P1, on the file of Arani Town PoliceStation on 13.08.1997. P.W.29-Gopal, the then Sub-Inspector ofPolice attached to the said police station, received the saidcomplaint and registered a case in Cr.No.300/1997 as a man missingcase, for which Ex.P2-First Information Report was prepared by him.P.W.2, the employer of deceased Sivasamy had already lodged acomplaint on 11.08.1997 under Ex.P4 on the file of Arani TownPolice Station informing the police that his car along with thedriver was missing. The said complaint was received in the policestation on 11.08.1997 at about 20.30 Hours. The police, withoutregistering a First Information Report based on the said complaintof P.W.2, assigned it C.S.R.No.177/1997.ii) Meanwhile, on 08.08.1997 at about 11.00 a.m P.W.12-Tamilnesan, the then Village Administrative Officer of Manjavadivillage, received an information that a dead body of a male wasfound near the field of one Muthusamy on the east of Arani-Harur-Salem Road in between Kombur and Vellaiappan temple. On receipt ofsuch an information, he rushed to the spot with his village menial,saw the dead body and then lodged a written complaint under Ex.P7on the very same day at about 14.00 Hours on the file ofPappireddipatti Police Station. P.W.25-Ramasamy, a Head Constableattached to the said police station, registered a case inCr.No.466/1997 under Section 174 Cr.P.C based on the said complaintof the Village Administrative Officer. Ex.P8 is the FirstInformation Report prepared by him for the said purpose. P.W.19-Abdul Jaffar, the then Inspector of Police, Pappireddipatti PoliceStation took up the said case for investigation, visited the sceneof occurrence and prepared Ex.P9-Observation Mahazar and Ex.P30-Rough sketch in the presence of P.W.12-Village AdministrativeOfficer and one Krishnan, village menial. He also conductedinquest over the dead body and prepared Ex.P31-Inquest Report.Thereafter, the dead body was sent to the Government Hospital,Harur for autopsy along with Ex.P14-requisition letter for the saidpurpose through P.W.18-Manokaran, Grade-I police constable.P.W.15-Dr.Jayaraman, the Medical Officer attached to the GovernmentHospital, Harur, conducted autopsy and issued Ex.P15-Postmortem https://hcservices.ecourts.gov.in/hcservices/ certificate. As per the requisition of the Investigating Officer,viscera and the skin around the neck were sent to the ForensicLaboratory for medical analysis along with Ex.P31-letter ofrequisition of the learned Judicial Magistrate, Harur. Afterreceiving the Medical Analysis Report and Bone Case Report underExs.P16 and P17, P.W.19-Medical Officer gave his opinion that thedeceased appeared to have died of asphyxia due to strangulationbetween 40 to 46 Hours prior to autopsy.iii) The dead body was buried after photographs of the samewere taken in three angles for future identification as there wasno one capable of identity the deceased. The said photographs andtheir negatives are marked as M.O.1 series and M.O.6 seriesrespectively. Meanwhile, P.W.29, the then Sub-Inspector of Police,Arani Town Police Station, who was conducting the initialinvestigation in Cr.No.300/1997 (man missing case) receivedinformation from Pappireddipatti Police Station regarding theregistration of the case in the said Police Station inCr.No.466/1997 and upon such receipt of the information, he sentP.W.1-Muthulakshmi along with police to Pappireddipatti PoliceStation for the purpose of identification of the deceased. P.W.1,on such instructions from P.W.29, went to Pappireddipatti PoliceStation on 24.09.1997 along with her father and other relatives andidentified the deceased to be her husband with the help of thephotographs marked as M.O.1 series and the dress materials, namelyM.O.2-Shirt, M.O.3-Banian and M.O.4-Jatti. On receipt of theinformation that the deceased was identified by P.W.1 to be herhusband, P.W.29 placed the CD file for the perusal of P.W.27-Venkatachalam, the then Inspector of Police, Arani, who took up thefurther investigation of the cases. The case registered on thefile of Pappireddipatti Police Station as Cr.No.466/1997 was alsotransferred along with the records to the file of Arani Town PoliceStation for being investigated along with Cr.No.300/1997 registeredon the file of Arani Town Police Station. P.W.28-G.Gothandan, thethen Inspector of Police, Arani Town Police Station clubbed thetransferred case, namely Cr.No.466/1997 (Pappireddipatti PoliceStation) with Cr.No.300/1997 (Arani Town Police Station), alteredthe case from man missing to a case for offences punishable underSections 379 and 302 IPC and submitted an alteration report underEx.P24. During the course of investigation, based on theinformation received by him, PW 28 arrested all the three accusedon 12.07.1998 at about 2.00 p.m near Kamaraj statue at Aranipalayamon the Arani-Vellore Road and recorded the confession statement ofA1-Saravanan in the presence of witnesses Rajan and one Sridhar,the admissible portion of which has been marked as Ex.P5. Based onthe said confession statement, P.W.28 recovered M.O.5-Ambassadorcar, in which the Regn. No.TSC 556 had been displayed in the numberplate, under Ex.P6 - Mahazar pursuant to the identification of thesaid car by A1-Saravanan to be the car stolen from the deceased.As P.W.28 was thereafter transferred from Arani Town PoliceStation, P.W.29, who had by then been promoted as Inspector ofPolice came to be posted to Arani Town Police Station whereupon heagain took up further investigation of the case. The car was alsosent for analysis by a forensic expert, based on the requisition https://hcservices.ecourts.gov.in/hcservices/ of the Investigating Officer marked as Ex.P21. P.W.24, theScientific Assistant Gr.I, Department of Forensic Sciences,Chennai, after examination of the car submitted a report containingthe following findings:-We have examined the above detailed car and ourconclusions are hereunder:-1.The word "ANAND" was found underneath the sticker"Radiating Vigour..." pasted on the rear windscreen glass of the car.3.The region of the car where the original chassisnumber is punched was found cut and removed and ametal piece bearing the present number "111-373968"was substituted by welding; Hence, the originalchassis number of the car could not be found.5.No number other than the present number "D 268920"is found on the engine identification platerivetted to the engine.Please note that the engine identification platerivetted to the engine was removed for examination andpacked separately under this office seal.iv) The skin removed from the neck of the dead body wasexamined by P.W.16-Dr.Vallinayagam, Professor (Forensic ScienceMedicine), Government Mohan Kumaramangalam Medical College andHospital, Salem in accordance with Ex.P16-requisition of thelearned Judicial Magistrate, Harur. Based on the findings of theexamination, PW16 issued a certificate under Ex.P17 certifying thatthe injuries found therein were antemortem. During the course ofthe investigation, the Investigating Officer found that all thethree accused persons, with the common intention of committingtheft and of comitting the murder of the deceased in order tocommit theft of the car bearing Regn. No.TSL 9357, engaged the saidcar plied as a taxi from the taxi stand at Arani old Bus Stand inArani town on 07.08.1997 at about 3.00 p.m under the pretext ofgoing to Salem and other places for collection of business dues andthereby abducted the deceased Sivasamy in order to murder him; thatin the course of the same transaction at about 11.00 p.m on thesame day in between Kombur village and Velliappan temple on theArani-Harur-Salem main road, the deceased Sivasamy was killed byA1-Saravanan by strangulation while A2-Selvam (appellant herein)and A3-Palani tightly held the hands and legs of the deceasedrespectively and facilitated the commission of murder byA.Saravanan; that after causing the death of the deceased Sivasamy,all the accused committed theft of the Ambassador car bearing Regn.No.TSL 9357; that all the three accused persons forged the chassisand engine numbers by cutting and removing them and substituting anumber of another car which had been condemned and that they alsoreplaced the original Registration Certificate of the said stolencar with the Registration Certificate of another car. On the https://hcservices.ecourts.gov.in/hcservices/ strength of the materials collected during the course ofinvestigation, P.W.28, submitted a final report alleging commissionof offences punishable under sections 364, 368 and 382 IPC by allthe three accused persons, an offence punishable 302 IPC by A1-Saravanan and an offence punishable under Section 302 r/w 109, 114and 34 IPC by A2, the appellant herein and A3-Palani.3. The learned Judicial Magistrate, Arani took the finalreport on file as P.R.C.No.19/2000 and after following theprocedure, committed the accused for trial to the PrincipalSessions Judge, Thiruvannamalai. The same was taken on file asS.C.No.164/2001 in the Sessions division of Thiruvannamalai andmade over to the Additional Sessions Judge cum Chief JudicialMagistrate, Thiruvannamalai by the Principal Sessions Judge,Thiruvannamalai for disposal according to law. 4.In the trial court, charges were framed against all theaccused persons for offences punishable under Sections 364, 382,302 and 468 IPC. The accused persons pleaded not guilty andwanted the case to be tried. In the trial that followed such aplea, the prosecution examined 30 witnesses as P.Ws.1 to 30, markedEx.P1 to P35 and produced M.Os.1 to 7 on its side in order to provethe charges against the accused persons. After recording of theevidence for the prosecution was over, the accused persons wereexamined under Section 313(1)(b) regarding the incriminatingmaterials found in the evidence adduced on the side of theprosecution. They denied such evidence to be false and once againreiterated their stand that they were not guilty of any offence.No witness was examined and no document was marked and no materialobject was produced on the side of the accused persons.5. The learned trial judge heard the arguments advanced oneither side, considered the evidence in the light of such argumentsand upon such consideration, came to the conclusion that theaccused 1 and 3 were not guilty of any of the offences with whichthey stood charged and hence acquitted them of all the charges byjudgment dated 31.05.2002 The appellant herein (A2) was also notfound guilty of the offences punishable under Sections 364 and 302IPC. However, the trial court held him guilty of an offencepunishable under Section 468 IPC and an offence punishable underSection 411 IPC (lesser offence than the offence under Section 382IPC with which he stood charged), convicted him for the saidoffences and awarded sentences as indicated supra.6. Aggrieved by and challenging the conviction recorded andthe sentences imposed, the appellant (A2) has come forward with thepresent appeal under Section 374 Cr.P.C on various grounds set outin the appeal petition.7. Mr.L.Mahendran, learned counsel for the appellant advancingarguments on behalf of the appellant contended that the judgment ofthe trial court was against law, weight of evidence andprobabilities of the case; that the court below ought to haveacquitted the appellant also holding the prosecution to have https://hcservices.ecourts.gov.in/hcservices/ failed to prove its case beyond reasonable doubt; that the courtbelow having acquitted A1 and A3, committed a grave error inconvicting the appellant based on the same evidence; that the courtbelow having disbelieved the evidence of P.W.3 for holding theappellant not guilty of the offence punishable under Section 302IPC, ought not to have convicted the appellant for offences underSections 411 and 468 IPC; that the evidence of the prosecutionregarding the substitution of the RC book for the car is found withlot of improbabilities and contradictions; that the evidence ofP.Ws.9 and 22 are in the nature of depositions of accomplice andthe acceptance of their evidence without any corroboration was badin law; that the court below ought to have held that there was nocorroboration for the evidence of P.Ws.9, 20, 21 and 22 and thatthe court below ought to have held that the appellant (A2) to bethe bonafide purchaser of car from P.W.9 and acquitted him. 8. It is the further contention of the learned counsel for theappellant that the court below having held that none of the accusedcommitted the offence of theft of the vehicle, erred in convictingthe appellant for an offence under Section 411 IPC; that theconviction of the appellant without there being any specific chargeof receiving stolen property under Section 411 is also against law;that the very approach made by the learned trial judge wouldsuggest that the learned trial judge searched for points forrecording a conviction at least on one or two of the charges aloneeven though the evidence adduced on the side of the prosecution wasnot enough to prove any one of the charges beyond reasonable doubt;that the finding of the court below holding the appellant (A2)guilty of the offences punishable under Sections 411 and 468 IPC,can even be termed perverse and that hence the conviction recordedand sentence imposed for offences under Sections 411 and 468 IPCshould be set aside by this court in exercise of its appellatepowers.9. Per contra, Mr.R.Muniapparaj, learned Government Advocate(Crl.Side), representing the respondent, argued that the courtbelow, on a proper appreciation of evidence, came to the correctconclusion that the appellant herein (A2) was guilty of offencespunishable under Sections 411 and 468 IPC; that the said findingcould not be said to be erroneous, much less perverse; that therewas no scope for interference with the well considered judgmentconvicting the appellant and that hence the appeal should bedismissed as having no merit in it.10. This court took into consideration the rival submissionsmade on either side and also perused the entire materials availableon record.11. The appellant herein, along with two other persons, wasprosecuted before the trial court for alleged offences punishableunder Sections 364, 382, 302 and 468 IPC. According to theprosecution theory, all the three accused, with a common intentionof stealing the Ambassador car (taxi) bearing Regn. No.TSL 9357 ofwhich the deceased Sivasamy was the driver, engaged the said taxi https://hcservices.ecourts.gov.in/hcservices/ at the taxi stand near old Bus Stand of Arani Town on 07.08.1997 atabout 3.00 p.m on the pretext of going to Salem and other placesfor collecting business dues, travelled in the said taxi and on theway from Arani to Harur in between Kombur and Vellaiappan temple,all of them jointly murdered the said Sivasamy and thereaftercommitted theft of the above said car. 12. It is the further case of the prosecution that, aftercommitting the offence of the murder and committing theft of thecar, they removed the original engine number and chassis number andaffixed the engine and chassis numbers of another car, which hadbeen condemned, dismantled and sold as scraps and used the said carwith the number plate displaying the registration number of thesaid dismantled car. After analysing the evidence, both oral anddocumentary, adduced on the side of the prosecution, the learnedtrial judge came to the conclusion that the prosecution theory ofthe accused persons including the appellant herein, abducting thedeceased with the intention to kill him and commit theft of the carwas not proved beyond reasonable doubt. The learned trial Judgealso hold that the charges of murder and theft pursuant to theabduction were not proved to the hilt beyond reasonable doubt andhence held all the three accused persons including the appellantwere not guilty of any one of the offences of abduction punishableunder Section 364 and murder punishable under Section 302 IPC. Asagainst the acquittal of the other two persons, namely A1 and A3 inrespect of the offences with which they stood charged and asagainst the acquittal of the appellant herein (A2) in respect ofthe offences punishable under Sections 364 and 302 IPC, the Statehas not preferred any appeal. No revision has also been preferred.Therefore, the acquittal of the accused, including the appellantherein, in respect of the offences punishable under Sections 364and 302 has become final. In the light of the same, thesustainability of the conviction recorded against the appellant foroffences punishable under Sections 411 and 468 IPC and punishmentimposed thereon has to be considered. 13.The offences for which the appellant (A2) was convicted are1) dishonestly receiving stolen property punishable under Section411 IPC and 2) forgery for the purpose of cheating punishable underSection 468 IPC. It should be kept in mind, while approaching theproblem, that there was no separate charge framed by the trialcourt against the appellant herein for an offence punishable underSection 411 IPC. No alteration of the charge was made even beforepronouncement of judgment. The appellant was prosecuted for havingcommitted theft after making arrangement to cause the death ofSivasamy in order to commit the theft punishable under Section 382IPC. Section 382 IPC reads as follows:-"382. Theft after preparation made for causingdeath, hurt or restraint in order to the committingof the theft.— Whoever commits theft, having madepreparation for causing death, or hurt, or ofrestraint, or fear of death, or of hurt, or ofrestraint, to any person, in order to the committing https://hcservices.ecourts.gov.in/hcservices/ of such theft, or in order to the effecting of hisescape after the committing of such theft, or inorder to the retaining of property taken by suchtheft, shall be punished with rigorous imprisonmentfor a term which may extend to ten years, and shallalso be liable to fine."14. The case of the prosecution is that all the three accusedpersons including the appellant herein jointly made preparationsfor causing the death of the driver of the Ambassador car (taxi)bearing Regn. No.TSL 9357 in order to commit of the theft of thesaid car and that is why all of them were prosecuted for theoffence under Section 382 IPC. The theory of the prosecution thatthe accused persons, including the appellant herein, with thecommon intention of causing death of the taxi driver and committingtheft of the taxi bearing Regn. No.TSL 9357, abducted him in thesaid car in the guise of going to Salem and other places forcollecting business dues and that they killed the driver on theirway to Harur from Arani and committed theft of the said car, hasbeen disbelieved by the learned trial judge or at least held to benot proved beyond reasonable doubt by the prosecution. When thetrial court held that the charge for an offence of theft afterhaving made preparation for causing death etc., was not provedbeyond reasonable doubt, as rightly pointed out by the learnedcounsel for the appellant, there is no scope for the trial court toconvict the appellant for an altogether different offence, namelyan offence punishable under Section 411 IPC without there being aseparate and specific charge framed for such an offence. Apartfrom the fact that there was no charge framed for an offencepunishable under Section 411 IPC and the appellant in the strictsense was not prosecuted for an offence of receiving stolen goodspunishable under Section 411 IPC, there are other materials to showthat the prosecution has not brought home the offence by sufficientevidence without there being any room for reasonable suspicion. 15.For sustaining a conviction for an offence under Section411 IPC, the prosecution can very well rely on Section 114illustration 'a' of the Evidence Act to raise a presumption thatthe goods alleged to be stolen found in possession of the accused,who fails to furnish any explanation for such possession, that hehad received it or retained it dishonestly knowing or having reasonto believe the same to be a stolen property. But there can be nopresumption that the property itself is a stolen one. To warrantsuch a presumption and to sustain a conviction for an offence underSection 411 IPC, the prosecution must establish beyond reasonabledoubt that the same is a stolen property. In this case, the carproduced as M.O.5 is said to be the stolen property. According tothe prosecution case, P.W.2-Varadhavelu was the owner of the saidcar and the same was stolen by all the three accused persons aftercommitting murder of Sivasamy, driver of the said car which wasused as a taxi. The theory of murder and theft by the accusedpersons was disbelieved by the court below. Therefore, the onlyquestion that arises for consideration shall be, "whether M.O.5-Carwas that of P.W.2? whether the same was found in the possession of https://hcservices.ecourts.gov.in/hcservices/ the appellant (A2)? whether the appellant (A2) was not in aposition to offer any explanation for such possession.?16. First of all, M.O.5 should have been proved to be the carbelonging to P.W.2-Varadhavelu to sustain the conviction of theappellant for having received it knowing or having reason tobelieve that the same was a stolen property. It is the case of theprosecution that the registration number of the car belonging toP.W.2 is TSL-9357 and that it was an Ambassador car used with 'T'board as taxi. At the time of alleged recovery of the car by thepolice it was not having the number plate displaying the above saidregistration number. On the other hand, according to theprosecution case, it was with a number plate displaying theregistration number TSC-556. It is also not the case of theprosecution that the vehicle was identified to be that of P.W.2with the help of either the chassis number or the engine numberfound in the vehicle. The theory of the prosecution as to how theywere able to find out that M.O.5 was the stolen car belonging toP.W.2, is more dramatic making it hard to believe. The prosecutionhas introduced P.W.7-Perumal as the person having a car mechanicshed at Arani to depose to the effect that one year after theoccurrence, the appellant along with one Sekar(whose name was notknown to PW7), came to the mechanic shed of P.W.7 and informed himthat a car which had broken down, had to be towed to the mechanicshed; that P.W.7 informed the appellant and the others to tow thecar to his mechanic shed; that the said car was brought to hismechanic shed on the same day during evening hours; that he hadserviced the said car earlier when one Anandan happened to be itsowner; that the said Anandan came to his mechanic shed andidentified the car to be the one which he had sold to P.W.2 andthat he came to know that the said car was that of Anandan when hestarted the car using the extra key he had brought. 17. It is pertinent to note that even after suchidentification by Anandan, P.W.7 did not inform the police. Duringcross-examination, P.W.1 also admitted that when M.O.5 car wasrecovered by the police from his mechanic shed he was not sure asto whether the said car was the one purchased by P.W.2 fromAnandan. The in-built contradiction found in the evidence of P.W.7will make his testimony unreliable and unbelievable. It is not theevidence of P.W.7 that it was he who informed the police about thefact that the said car had been brought to his mechanic shed forrepair works. The date on which M.O.5 car was brought to hismechanic shed and the date on which the taxi drivers and Anandancame to his mechanic shed and informed him that the same was thecar missing, have not been furnished by P.W.7 in his evidence.According to his testimony three days after Anandan informed himthat the said car was the one missing, police came to his mechanicshed along with all the three persons accused and recovered the carfrom the mechanic shed. However, his evidence in cross-examinationis to the effect that the police came to his mechanic shed on thevery same day on which Anandan came there and informed him, aftertesting the car with the key brought by him, that the said car wasthe one missing. At one place he said three days after such https://hcservices.ecourts.gov.in/hcservices/ identification by Anandan police came and recovered the vehicle.At another place, he said that on the very same date on whichAnandan identified the vehicle to be the one missing, police camethere and asked him who brought the vehicle to the mechanic shed.It is the evidence of the Investigating Officer, namely P.W.28,that the availability of the car in the mechanic shed of P.W.7 cameto his knowledge only from the confession statement of A1-Saravananallegedly recorded on 12.07.1998 at 2.00 p.m. It is the furthertestimony of P.W.28 that M.O.5 car was recovered under Ex.P6-Mahazar on the very same day at 3.45 p.m. But, P.W.7, in histestimony, at one place would say that before ever they brought theaccused the police along with one Sekar, who figured as theattestor came there asked him who brought the vehicle to themechanic shed for which he informed the police that the accusedpersons brought it to his mechanic shed and that thereafter, thepolice brought the accused to the mechanic shed. At another placehe would state that the police people came to the mechanic shed forthe first time 2 or 3 days after the car had been towed to themechanic shed for effecting repairs. 18. It is the case of the prosecution that on the date ofarrest of accused, namely 12.07.1998 itself the vehicle wasrecovered from the mechanic shed of P.W.7 and taken to the policestation. It is the evidence of the Investigating Officer (P.W.28)that he went to the mechanic shed only after the arrest of theaccused persons and pursuant to the information furnished by thefirst accused (Saravanan), the admissible portion of which has beenmarked as Ex.P5 the vehicle was recovered and taken to the policestation as per Ex.P6 on the very same day. But the followingadmissions made by P.W.7 would make improbable the theory ofrecovery of the car under Section 27 of the Evidence Act. It ishis evidence that after inspection by the police, they informed himnot to effect delivery of the vehicle without the knowledge of thepolice; that P.W.2-Varadhavelu purchased and supplied the spareparts for effecting repairs and that it took one week time foreffecting delivery after repair. His earlier version was thatwithin 2 or 3 days after the car was brought to his mechanic shedfor repair, police came there. According to the InvestigatingOfficer, he went there on 12.07.1998. The further evidence ofP.W.7 shows that it took a week's time for him to complete therepair works and effect delivery. The same will improbablise thecase of the police that the vehicle was recovered on the date onwhich the police went to the mechanic shed along with the accusedand saw it. Therefore, the theory of confession statement leadingto recovery of M.O.5 has got to be disbelieved.19. It is not the evidence of P.W.2 that he went to themechanic shed of P.W.7 and saw the car before ever the car wasseized and taken to the police station. It is also not theevidence of P.W.2 that it was he who purchased and supplied thespare parts for effecting repairs. On the other hand, it is hisevidence that he was informed by the police that the vehicle hadbeen recovered by the police and kept in Arani Town police stationand that after receiving such information from the police he went https://hcservices.ecourts.gov.in/hcservices/ to the police station and identified the car to be his. It is hisfurther evidence that he saw the car at the police station whichwas not in a running condition and that he effected repairs withthe help of a mechanic when the car was in the police station andtook it from the police station in accordance with the instructionsof the Inspector of Police. His evidence is to the effect that heapplied before the court, got an order for interim custody andthereafter took the car from the police station after effectingrepairs employing a mechanic and that the repair works were carriedout in the police station itself. 20. The theory of identification and recovery falls to theground when it is considered in the light of the contradictionsfound in the evidence of P.W.2 and P.W.7. According to theevidence of P.W.2 it was a white colour car when it was with himand his vendor Anandan. On the other hand, it is the evidence ofP.W.7 that it was of sandal colour when the car was with Anandaninitially and subsequently with P.W.2-Varadhavelu and that onlyafter the car had gone into the hands of the accused, the colourhad been changed from sandal colour to white colour. Therefore, itis crystal clear that the vehicle could not have been identifiedbased on the colour of the vehicle. The RC book of the vehiclebelonging to P.W.2 bearing Regn. No.TSL 9357 has been produced andmarked on the side of the prosecution as Ex.P35. The evidence ofP.W.2 as to whether the same was handed over to the InvestigatingOfficer is self-contradictory. P.W.2, in his cross-examination didstate that during the course of investigation he handed over the RCbook to the police in accordance with their demand. However, inthe latter part of his evidence, he stated that he did not handover the RC book during investigation and that he surrendered theRC book in the court of the Judicial Magistrate, Arani when he gotthe interim custody of the vehicle.21. According to the evidence of P.W.7 - Perumal, police cameto his mechanic shed after two or three days from the date on whichM.O.5-car was brought to his shed for repair works. P.W.6 - Sekaris said to be the person who towed M.O.5-car to the above saidmechanic shed. According to his testimony, he along with Venugopaland Murugan and the appellant went to Sethupattu at the request ofthe appellant and towed the car, using their car, to P.W.7'smechanic shed. The registration number of the car which was usedfor towing M.O.5 - car has not been furnished by P.W.6 or any otherwitness examined on the side of the prosecution. It is theevidence of P.W.6 that he left Arani on the date on which M.O.5 -car had been entrusted with P.W.7 at his mechanic shed and returnedto Arani only after a week. It is also his evidence that since hewas not in the station for a week from the date of entrustment ofthe car to P.W.7 for effecting repairs, he did not inform thepolice. It is the assertion of P.W.6 that he was not in thestation (Arani) for a week's time from the date of entrustment ofM.O.5-car to P.W.7. P.W.7's evidence is to the effect that aftertwo or three days from the date on which M.O.5-car was entrusted tohim for repair works at his mechanic shed, police came to themechanic shed and queried him as to the person who entrusted the https://hcservices.ecourts.gov.in/hcservices/ car for repair works and that he replied that the accused personshad done it. It is his further evidence that P.W.6-Sekar also camethere accompanying the police when the police came to his mechanicshed. When P.W.6 states that he was not in the station for a weekfrom the date of entrustment of the car with P.W.7 for repairworks, it is highly improbable that he would have accompanied thepolice who came to the shed within two or three days there after.P.W.6 did not assert that he accompanied the police to the mechanicshed of P.W.7 when the police visited the same. It is his simplestatement that he later on received the information that police hadarrested the accused persons and that only thereafter policesummoned him whereupon he furnished the information known to him. 22. The prosecution has introduced P.W.8-Anandan as the personthrough whom P.W.7 and others came to know that M.O.5 car was theone belonging to Varadhavelu bearing Regn.No.TSL 9357. Accordingto the evidence of P.Ws.6, 7 and 8, on being informed that a carwith a number plate displaying Regn. No.TSC 556 was available inthe mechanic shed of P.W.7 and that there was a suspicion that thecar could be the missing car of which the deceased Sivasamy was thedriver, P.W.8 went to the mechanic shed with a duplicate keyavailable with him, opened the car with the help of the duplicatekey and then found out the said car to be the one he had sold toVaradhavelu-P.W.2. The evidence of P.Ws.6 and 7 are to the effectthat they were very much aware of the fact that the said carbearing Regn. No.TSL 9357 once owned by P.W.8-Anandan had been soldto P.W.2-Varadhavelu long back and the said car was found missingfor about a year before M.O.5 car was brought to P.W.7's mechanicshed for repair works. In such circumstances, it would have beenquite natural and probable if they had informed P.W.2-Varadhaveluto come and inspect the car and verify whether the same was his carthat was missing. But, according to their evidence, P.W.8-Anandan,the previous owner of the vehicle bearing Regn. No.TSL 9357 wasinformed and on such information he came to the mechanic shed andidentified the vehicle to be the one he had sold to P.W.2-Varadhavelu. It is quite improbable that P.W.8, who had sold thecar more than one year earlier, could have retained the duplicatekey with him. When the police relied on the identification of thecar by P.W.8, who was able to do it, according to the prosecutionversion, because the duplicate key he had with him correctly fittedto the car, it shall be natural for the police to recover the keyalso when the car was seized. But, P.W.8 says that though hedemonstrated the car to be the one he owned and sold to Varadhaveluby starting the car with the extra key available with him, thepolice did not ask him to hand over the key to them and hence hedid not hand over the key to the police. 23. It is the evidence of P.Ws.6 to 8 that the car bearingRegn. No.TSL 9357 was of sandal colour when the same was withP.W.8-Anandan and then with P.W.2-Varadhavelu and that the colourof the car had been changed to white when the car was with theappellant/second accused. But the evidence of P.W.2 seems to besome what contradictory to the evidence of P.Ws.6 to 8. It is nothis evidence that the colour of the car had been changed subsequentto the date of occurrence. On the other hand, it is his evidence https://hcservices.ecourts.gov.in/hcservices/ that his car was a white Ambassador car; that he had purchased andfitted four new tyres and that with the help of the same and withthe help of the sticker mark bearing the name Anandan, he was ableto identify the car to be his. In view of the said contradictionalso, there arises a strong suspicion regarding the prosecutionversion as to the identification of the vehicle. In this regard,the police officer who allegedly recovered M.O.5-car under Ex.P6-Mahazar, has given a totally different version. According to hisevidence, at the time of theft the car had been painted in whiteand the car was of the very same colour when he recovered it underEx.P6-mahazar.24. It is quite surprising that no one out of the witnessesP.Ws.6 to 8 chose to inform P.W.2-Varadhavelu after the allegedidentification of the vehicle by P.W.8. There is a vitalcontradiction as to whether the vehicle had been repaired andbrought to a road-worthy condition before police seized andbrought it to the police station. P.W.7 would state in hisevidence that he had effected repairs and kept the car ready andonly thereafter the police came to the mechanic shed and recoveredthe car. But the evidence of P.W.2 is quite contrary to the saidevidence of P.W.7. According to P.W.2, when the car was in thepolice station it was not in a running condition and after gettingorder from the court for interim custody of the car, he get the carrepaired by a mechanic and then took the car from the policestation. Apart from the said contradiction, there is yet anotherversion which was indicated earlier. P.W.7 himself, in his laterpart of his deposition, stated that the police, after confirmingthat the car was the one stolen, simply left the car to be in themechanic shed of P.W.7 with instructions to him not to effectdelivery of the car to anybody without informing the police andthat he effected repairs for which P.W.2 provided the funds andsupplied the spare parts. The said part of his evidence is to theeffect that without the vehicle being taken to the police station,the same was repaired and handed over to P.W.2. The threecontradictory versions in this regard will make the prosecutioncase regarding identification of the vehicle improbable andsurrounded with reasonable suspicion. 25. The other characteristics with which the car was allegedlyidentified to be that of P.W.2 bearing Regn. No.TSL 9357, accordingto the prosecution case, is the sticker mark depicting the name ofthe previous owner, namely P.W.8-Anandan found on the rear windscreen even after the removal of the sticker. According to theevidence of P.W.7, he came to note that the said car was the onepreviously owned by P.W.8-Anandan and subsequently owned by P.W.2-Varadhavelu, simply because P.W.8-Anandan was able to open the carand start the same with the help of the extra key that wasavailable with him. He has not spoken anything about the stickerbearing the name of Anandan (P.W.8). It is also not the evidenceof P.W.7 that the sticker mark of the name Anandan was found on therear wind screen, with the help of which he was able to identifythe said car to be that of P.W.2-Varadhavelu. P.W.2 and 8 alonehave spoken about the sticker mark bearing the name of Anandan https://hcservices.ecourts.gov.in/hcservices/ (P.W.8). It is not their case that the said sticker was found intact when they saw M.O.5-car. On the other hand, it is theevidence of P.W.2 that when he saw the vehicle in the policestation, the sticker had been removed, but the impression of thesticker was very much visible. Same was the evidence of P.W.8also. According to the evidence of P.Ws.2 and 8 when they saw thevehicle, the sticker bearing the name Anandan had been removed andthe impression of the sticker with the letters "ANANDAN" was verymuch visible. It is not their evidence that after removing thename sticker bearing the name Anandan, another sticker had beenpasted. Only in the seizure mahazar marked as Ex.P6, it has beenstated that a sticker with the words "Radiating Vigour" had beenpasted to hide the shade of the sticker with the name "ANANDAN" inthe rear wind screen of the car. None of the witnesses, whoallegedly saw the car before the police seized it, namely P.W.2,P.W.6, P.W.7 and P.W.8 has spoken about the fact that the stickerbearing the name "ANANDAN" had been removed and in its place thesticker with the words "Radiating vigour" had been affixed. 26. It seems P.W.24-Thirunavukkarasu, Scientific AssistantGr.I, Forensic Science Department, Chennai examined the said car onthe basis of Ex.p22-requisition letter and submitted a report underEx.P23. He had observed therein that a sticker with the words"Radiating Vigour" was found on the rear windscreen of the car andunderneath the said sticker he could find the English name "ANAND".Whether a sticker with the name "ANAND" was there over which thesticker "Radiating Vigour" had been pasted, is not clear fromEx.P23 or from the evidence of P.W.24. Since P.W.2 and P.Ws.6 to 8did not state in their deposition that the sticker "RadiatingVigour" was found on the rear windscreen over the impression"ANAND", there is a reasonable suspicion that the sticker couldhave been pasted before the same was inspected by the ScientificAssistant. As such there is possibility of the police creating animpression of the name "ANAND" and then pasting 'Radiating Vigour'sticker over the same in such a way that the impression "ANAND" wasvisible to project it as a mark of identification leading to therecovery of the vehicle. In this regard there is such a strong andreasonable suspicion, the benefit of which shall go to theconcerned accused, namely the appellant herein.27. The other aspects relied on by the prosecution to proveits case that the appellant had committed the offence under Section411 IPC are that the engine number and chassis number of thevehicle had been removed and in their place new engine number andchassis number relating to a condemned vehicle had been providedand that after changing the chassis number and vehicle number thevehicle was plied with the number plate bearing the registrationnumber of the condemned vehicle, namely TSC 556. The prosecutionseems to have made an attempt to show that the property was the onestolen from the deceased and the appellant (A2) who was found to bein possession of the vehicle, was not able to account for the same.In this regard, unless the prosecution is able to prove that thesaid vehicle produced as M.O.5 was the one which belonged to P.W.2and the same was recovered from the appellant/accused, there would https://hcservices.ecourts.gov.in/hcservices/ not be any presumption that he had received it dishonestly knowingor having reason to believe that the same was stolen property. Inorder to prove the case of prosecution in this regard, prosecutionhas examined P.W.9-Kuberan, P.W.20-Benjamin and P.W.21-Sajjanraj.They were examined in an attempt to show that the car bearing Regn.No.TSC 556 had been owned by P.W.20-Benjamin that he had availedfinancial assistance from P.W.21-Sajjanraj for purchasing the same;that since he was not able to pay the installments, P.W.21 tookpossession of the car and sold it to P.W.22-Jamalbai and handedover the RC book along with other documents, namely 'No ObjectionCertificate' and 'T.O. Form' duly signed; that P.W.22-Jamalbaidismantled the car, sold the parts as scraps and sold the RC bookand other documents to P.W.9-Kuberan and that the said RC waschanged in the name P.W.9-Kuberan and subsequently changed in thename of the appellant (A2). When such details are given, it shallbe expected of the prosecution to produce the said RC book. But,unfortunately the said RC book was not recovered and produced. Theexplanation offered by the Investigating Officer (P.W.28) is thatthe accused, who initially agreed to produce the RC book, later onfailed to do so. There is nothing on record to prove the same. Inthis connection, Thiru.Rajendiran, Motor Vehicle Inspector has beenexamined as P.W.14. According to his evidence, while he wasfunctioning as Motor Vehicle Inspector-I in the Regional TransportOffice, Arani, he inspected M.O.5-car and found it with enginenumber D-268929 and chassis No.111-373968 relating to an Ambassadorcar bearing Regn. No.TSC 556 as per A-Register maintained in theiroffice; that as per the said Register, one S.Rahothaman was thefirst registered owner of the said vehicle, N.Kuberan (P.W.9) wasthe second owner of the vehicle and the appellant (A2) was thethird owner of the vehicle. It was also his evidence that theengine number and chassis number of the vehicle were removed and intheir place, the above said engine number and chassis number hadbeen affixed. 28. The evidence of P.W.14 will negative the prosecution caseor at least cast a serious doubt regarding the prosecution version.According to the prosecution, P.W.20-Benjamin had purchased thevehicle and entered into a hire purchase agreement for a sum ofRs.1,00,000/- with P.W.21-Sajjanraj and P.W.21-Sajjanraj took thevehicle and sold it to P.W.22-Jamalbai, as P.W.20 did not pay theinstallments properly. It is the evidence of P.W.20 that oneSundaram was the owner as per the RC and that he purchased thevehicle from the said Sundaram. It is his further evidence thatthe hypothecation arrangement he had made with P.W.21 had beenentered in the RC book. But, as per the evidence of P.W.14,neither the Sundaram nor P.W.20-Benjamin was the registered ownerof the vehicle bearing Regn. No.TSC 556. Therefore, the theory ofthe prosecution that the vehicle had been owned by P.W.20 and thefinancier P.W.21 took possession of the vehicle and sold it toP.W.22-Jamalbai who dismantled the vehicle and sold the RC book toP.W.9-Kuberan seems to be a bigger pill to swallow. The occurrenceis said to have taken place on 07.08.1997 and the vehicle itselfwas allegedly recovered under Ex.P6-Mahazar on 12.07.1998. P.W.20was examined on 12.04.2002, nearly four years after the recovery of https://hcservices.ecourts.gov.in/hcservices/ the vehicle. But, P.W.20 in his evidence has stated that hepurchased the car bearing Regn. No.TSC 556 for a sum ofRs.1,25,000/- from one Sundaram, two years prior to the date of hisexamination, which will take us to the year 2000 much later thanthe alleged date of recovery of the M.O.5-car under Ex.P6. Theevidence of P.W.21 is to the effect that P.W.20 availed financialassistance from P.W.21 for purchasing the said car five years priorto the date of his examination. According to the evidence ofP.W.20, he purchased it for a sum of Rs.1,25,000/-. According tothe evidence of P.W.21, he provided finance to the extent ofRs.1,00,000/- to P.W.20 for the purchase of the car. As pointedout supra, according to the evidence of P.W.21, the same shouldhave taken place some where in the year 1997. As per P.W.22'sevidence he purchased the vehicle from P.W.21-Sajjanraj in 1997itself. It is unbelievable and improbable that a vehicle which waspurchased for a sum of Rs.1,25,000/- was sold in the very same yearfor a paltry sum of Rs.30,000/-. It is also highly improbable thatthe financier who had provided financial assistance to the tune ofRs.1,00,000/- to have sold the vehicle for a meager sum ofRs.30,000/- and refrained from taking action for the recovery ofthe balance amount from the borrower. Therefore, P.Ws.20 to 22,according to the considered view of this court, should have beenthe subsequent introduction by the police in order to show that thevehicle bearing Regn. No.TSC 556 was condemned and the RC book waspurchased by the appellant (A2) to be used for the stolen vehicle.29. Even regarding the sale of the RC book, the evidence ofP.W.9 and 22 contain contradictory materials, which will make thecase of the prosecution unbelievable. It is not the evidence ofP.W.9 that he had accompanied P.W.22 to the place of P.W.21 forpurchasing the car bearing Regn. No.TSC 556. It is also not hisevidence that he contributed Rs.20,000/- and P.W.22 contributedRs.10,000/- for the purchase of the said car and for hiscontribution he got the RC book from P.W.22. On the other hand,his evidence is to the effect that he used to purchase spare partsfrom P.W.22 and on one such occasion, P.W.22 informed him that hehad got the RC book of a car and asked him whether he wanted tohave it and that his reply for the same was in the negative. It ishis further evidence that four or five months there after A3-Palaniapproached him for getting a RC book to be used for another vehicleallegedly purchased from the Forest Department and there after hepurchased the RC book from P.W.22, transferred the same in his nameand then transferred the same in the name of the appellant (A2).It is his further evidence that he got an insurance policy for thesaid vehicle in the name of P.W.20, the previous owner and then gotit transferred to his name. As already pointed out, P.W.20-Benjamin was never the registered owner of the vehicle bearingRegn. No.TSC 556. The evidence of P.W.9 in this regard, is also notreliable. Apart from the in-built improbability found in theevidence of P.W.9, a comparative study of the evidence P.Ws.9 and22 will also show that the prosecution theory in this regard isimprobable and unbelievable. According to the testimony of P.W.22,P.W.9 contributed Rs.20,000/- and he contributed Rs.10,000/- forthe purchase of the car, which is totally contra to the evidence of https://hcservices.ecourts.gov.in/hcservices/ P.W.9. P.W.22 also has stated that he never informed P.W.9 that hehad a RC book and if P.W.9 wanted to have it he could get it fromhim. This is also in total contradiction with the evidence ofP.W.9. Therefore, the introduction of P.Ws.20 to 22 shall have theeffect of spoiling the broth.30. The next question that arises for consideration is whetherthe prosecution was able to prove that M.O.5 was not the vehiclecovered by the registration certificate bearing Regn. No.TSC 556.The only fact relied on by the prosecution to show that M.O.5-vehicle was the one covered by the registration certificate bearingRegn. No.TSC 556 is that the engine number and chassis number hadbeen allegedly removed and replaced by the engine and chassisnumber relating to the registration certificate bearing TSC No.556.In this regard, the evidence of P.W.14 (Motor Vehicle Inspector)and P.W.24-Scientific Assitant Gr.1 of the Forensic Department isrelevant. The certificate issued by P.W.14 is Ex.P11. Therequisition letter for examination of the vehicle by the MotorVehicle Inspector Gr.I is Ex.P10. So far as the engine number isconcerned, admittedly the same would be inscribed in a plateattached to the engine, which can be easily removed and in itsplace another plate can be fixed. So far as chassis number isconcerned, according to P.W.14, the style of letters '111' used atthe time of manufacture of the vehicle was different from the styleof the letters currently in use and the gap between the letters wasalso wider than the one found in the old chassis numbers and thatis the reason why he came to the conclusion that the chassis numberhad been changed. Admittedly, the vehicle was not referred to themanufacturer to find out whether the chassis number and enginenumber found therein were the same found in the vehicle when it wasreleased from the factory. Even assuming that the chassis numbercould have been changed that may be due to various reasons. Forexample a worn out chassis would have been replaced by a newchassis. Such replacement may be unauthorised and even may amountto an offence under the provisions of the Motor Vehicles Act andthe Rules framed thereunder. On the said fact alone, it will not beenough to come to the conclusion that the vehicle was not thevehicle relating to the registration certificate concerned. 31. The enumeration of such a large number of discrepanciesand improbabilities will definitely lead to the conclusion that theprosecution has miserably failed to prove the charge against theappellant (A2) for an offence under Section 411 IPC and that theprosecution case in this regard is full of contradictions andimprobabilities giving rise to a reasonable suspicion, the benefitof which shall be given to the accused, namely the appellantherein. The learned trial judge, without considering all the abovesaid aspects, simply assumed that the vehicle should be the oneallegedly stolen from the deceased and thus recorded an erroneousconviction for the offence under Section 411 IPC. The same shallnot stand the scrutiny of this court and hence the conviction forthe offence under Section 411 IPC recorded by the trial courtdeserves to be set aside and reversed. https://hcservices.ecourts.gov.in/hcservices/

32. Coming to the other charge, namely the charge for anoffence punishable under Section 468 IPC, this court shall have topoint out that the observations made in the discussion relating tothe charge for the offence punishable under Section 411 IPC applyto the said charge for an offence under Section 468 IPC also. Ithas been already held that the prosecution has not proved beyondreasonable doubt its case that the vehicle M.O.5 was used with awrong registration number that had been assigned to another vehiclewhich had been condemned and dismantled. The discussions in theearlier paragraphs of this judgment will also show that the theoryof confession statement of the first accused leading to therecovery of M.O.5 car has also not been proved beyond reasonabledoubt. The trial court itself has acquitted the first and thirdaccused. The first accused who is alleged to have given confessionstatement leading to the recovery was given a clean chit byacquittal. Hence, the appellant/second accused in whose name thevehicle had been lastly registered, cannot be convicted for forgeryon the assumption that RC book relating to another vehicle was usedfor M.O.5-car. It has not been proved that M.O.5 car was the oneassigned the registration number TSL 9357. The registrationcertificate of the vehicle bearing Regn. No.TSC 556 has not beenproduced. Even the LIST OF successive owners of the vehiclebearing Regn. No.TSC 556, as projected by the prosecution is foundto be false. As per the evidence of P.W.14, one Rahothamanhappened to the first owner, P.W.9 happened to be the second ownerand the appellant happened to be the third owner of the vehiclebearing Regn. No.TSC No.556. Evidence has been adduced throughP.W.9 and P.W.14 to the effect that an endorsement in theregistration certificate regarding transfer of ownership of thevehicle could be made even without the production of the vehiclefor inspection by the registering authority. The same shows thatthings were done against the statutory rules and there shall be nowonder if an endorsement in the registration certificate of the carbearing Regn. No.TSC 556 could have been made even without theknowledge of the appellant/second accused. The non-production ofthe registration certificate and failure to produce even therecords showing the photograph and signature of theappellant/second accused available with the registering authority,will also create a serious doubt regarding the prosecution case.The evidence of P.W.10 is also not helpful for the prosecution toprove its case regarding the charge for an offence under Section468 IPC. 33. When the evidence of the prosecution is properlymarshaled, one can come to a conclusion that the prosecution hasfailed to establish any forgery, much less forgery for the purposeof cheating, beyond reasonable doubt. The court below has failedto appreciate the evidence in proper perspective and because of thesame came to an erroneous conclusion that the appellant/A2 wasguilty of the offence under Section 468 IPC and convicted him forthe said offence and sentenced him to undergo five years rigorouspunishment and to pay a fine of Rs.30,000/- with a default sentenceof one year rigorous imprisonment in case of default in payment offine. The said conviction and sentence cannot stand the scrutiny https://hcservices.ecourts.gov.in/hcservices/ of this court and the same deserve to be reversed and set asidewith the result that the appellant/A2 shall be acquitted of theoffence punishable under Section 411 IPC and 468 IPC also.34. In the result, the appeal is allowed and the judgment ofthe trial court convicting the appellant/A2 for offences underSection 411 and 468 IPC and the order of sentence imposed are setaside. The appellant/A2 is acquitted of all the offences withwhich he stood charged. The bail and the personal bond executed bythe petitioner in lieu of the fine amount shall stand cancelled andthe petitioner shall be set at liberty, in case he is not requiredin any other case.asr Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Additional Sessions Judge cum Chief Judicial Magistrate,Thiruvannamalai2. -do- through The Principal Sessions Judge, Thiruvannamalai.3. The Judicial Magistrate, Arani4. -do-through The Chief Judicial magistrate, Arani5. The Inspector of Police Arani Town Police Station6. The Public Prosecutor High Court, Madras-1047. The Superintendent Central Prison, Vellore.8. The District Collector, Thiruvannamalai.9. The Director General of Police, Santhome, Chennai.10. The section Officer, Criminal Section,High Court, madras.1CC to Mr.L.Mahendran, Advocate (SR.57857)Pre-Delivery Judgment inC.A.No.787 of 2002BV (CO)SS (12.11.2009)