ARUMUGHAN v. NONE

V.K.MOHANAN, J.-------------------------------Crl.A.No.359 of 2010-------------------------------Dated this the 12th day of January, 2012.J U D G M E N TThe first accused in S.C.No.81 of 2009 of the court ofadditional Sessions Judge (Ad hoc-1), Ernakulam, is theappellant and he preferred this appeal challenging hisconviction and sentence for the offence under Section 450and 392 of IPC, imposed on him vide judgment dated8.2.2010 in the above sessions case.2. The prosecution case is that, with an intention tocommit robbery, the accused three in numbers includingthe appellant, wrongfully trespassed into the house bearingNo.III/442 in Udayamperoor panchayat on 15.2.2004 atabout 2 a.m. breaking open the window of the kitchen ofthe house and A1 and A2 stealthily entered inside androbbed the gold chain of two sovereigns belonging to oneUnikai Antharjanam aged 80 years, who cited as CW2, andwho was sleeping in the said room, when the accused 2Crl.A.No.359 of 2010intervened and A3 was guarding outside the house,supporting accused nos.1 and 2 to commit the offence andtherefore the accused together in furtherance of theirunlawful common intention committed the offencepunishable under Sections 457 and 394 r/w 34 of IPC. 3. According to the prosecution, connected withcrime no.713 of 2008 of Hill Palace police station,registered for the offence punishable under Section 401 ofIPC, the appellant and certain other accused were arrestedand on their questioning, they divulged about certaincrimes committed by them and on the basis of suchinformation, Ext.P2 FIR was registered in the Hill Palacepolice station as crime no.742 of 2008 and the said crimewas connected with the incident that taken place at 2 a.m.on 15.2.2004, in which A1 snatched away the gold chainhaving worth of Rs.12,000/- from the neck of CW2. It is thefurther case of the prosecution that, as the crime in Ext.P2FIR was occurred within the territorial jurisdiction ofUdayamperoor Police station, PW5 transmitted Ext.P2 FIR 3Crl.A.No.359 of 2010from Hill Palace police station to Udayamperoor Policestation and based upon that, PW7 the Sub Inspector ofUdayamperoor police station registered Ext.P4 FIR ascrime no.471 of 2008 of the Udayamperoor police station.Thus after conducting investigation, report was filed in thecourt of Additional Chief Judicial Magistrate-Ernakulam,wherein C.P.No.44 of 2008 was instituted and by orderdated 10.2.2009, the learned Addition Chief JudicialMagistrate committed the case to the Sessions courtwherein the same was received as S.C.No.81 of 2009 andsubsequently made over the same to the trial court for trialand disposal. The appellant/accused was in custody rightfrom his arrest on 6.7.2008 and thus when himself andother accused were produced, a formal charge was framedafter hearing the prosecution as well as the accused andwhen the said charge read over and explained to theaccused, they denied the same and pleaded not guilty,which resulted in the further trial of the case, during whichthe prosecution has adduced its evidence consists of 4Crl.A.No.359 of 2010documentary evidence which is marked as Exts.P1 to P7and the oral testimony of Pws.1 to 7. The gold chain isproduced and identified as M.O.1. No evidence either oralor documentary produced from the side of the defence.Finally, the learned Judge of the trial court has found thatthe evidence on record positively revealed that A1committed robbery of M.O.1 gold chain from the person ofan old lady (CW2) and it is well proved in evidence that theaccused/appellant sold the said ornament in a shop atChennai, from where it was recovered by PW6. The trialcourt has further found that though there is no allegationagainst the appellant, any overtact other than thesnatching away of M.O.1, the act of assault alleged againstA2 is also said to have committed, in furtherance ofcommon intention of A1 to A3 and the evidence furthershows that the commission of robbery of M.O.1 is furtherstrengthened and proved from the recovery from the shopof CW4 as per the information furnished by A1 andaccording to the learned Judge of the trial court, the 5Crl.A.No.359 of 2010trespass committed by A1 into the house of the victim waswith a particular intention to commit robbery andaccordingly, the act of house trespass substantiated thecommission of offence punishable under Section 450 of IPCas well. The learned Judge further held that, there is noconcrete evidence on record to show that A2 and A3 areco-accused, especially when the confession statement of A1cannot be used against A2 and A3 and thus the trial courtfound that A1 is guilty under Section 450 and 392 of IPCand A2 and A3 are not guilty. Accordingly, the accused/appellant is found guilty under Section 450 and 392 of IPCand he is convicted thereunder ; whereas A2 and A3 areacquitted of the charge under Section 450 and 394 of IPC.On such conviction, the appellant is sentenced to undergorigorous imprisonment for 4 years and to pay a fine ofRs.3,000/- and in default to undergo rigorousimprisonment for 1 year under Section 450 of IPC as wellas for the offence under Section 392 of IPC. It is the abovefindings, conviction and sentence challenged in this appeal. 6Crl.A.No.359 of 20104. I have heard V.C.Rajesh, learned counsel for theappellant and Smt.Laliza T.T., learned Public Prosecutor.5. Learned counsel for the appellant vehementlysubmitted that the prosecution has miserably failed toprove the identity of the accused, since absolutely there isno evidence to connect the accused with the crime. It isthe further contention of the learned counsel that thelearned Judge of the trial court has found that theappellant is guilty simply on the basis of Ext.P8(a)confession statement and Ext.P8 seizure mahazar.According to the learned counsel, the above approach ofthe trial court is absolutely incorrect and illegal,especially when the prosecution has miserably failed toproduce and mark the original of Exts.P8 and P8(a). Thelearned counsel after inviting my attention to Section 63 ofthe Evidence Act strenuously submitted that, none of thecircumstances mentioned in Section 63 of the Evidence Actis attracted so as to act upon the carbon copy of Exts.P8 7Crl.A.No.359 of 2010and P8(a). In support of the contentions, the learnedcounsel placed reliance upon the decision reported inAbubaker Vs. Kadija Ummal [2007(2) KLT 807 (SC)],Sreedevi Amma Vs. Jayalakshmi (1998(1) KLT 197)and M/s.Himatsingka Seide Ltd., Bangalore and ors.Vs. Shambappa Basappa [2010(2) KLD 127 (Kar.)]. Itis further argued by the learned counsel that, the shopowner, namely, CW4, and the witness to the allegedseizure, cited as CW5, are also not examined and thereforethe trial court has committed wrong in simply acting uponthe carbon copy of Exts.P8 and P8(a). It is also thesubmission of the learned counsel that, regarding theseizure and further proceedings, the evidence of Pws.4 and6 are inconsistent and though the prosecution has claimedthat the officials of Tamil Nadu police were present at thetime of the alleged seizure, none of such police officerswere examined and thus the recovery, alleged to haveeffected on the basis of the alleged confession statement of 8Crl.A.No.359 of 2010A1/the appellant, has lost all its legal sanctity. Thus,according to the learned counsel, absolutely there is nolegal and reliable evidence to connect the appellant withthe crime.6. On the other hand, the learned Public Prosecutorstrenuously submitted that, A1/the appellant and otheraccused were arrested by PW5 and during such arrest andinterrogation, the accused revealed the commission ofseveral crimes of similar in nature and on the basis of suchrevelation, seizures were effected including M.O.1, and allsuch articles recovered were produced alongwith theconfession statement and the mahazar in the committalcourt. Thus according to the learned Public Prosecutor, asthe documents relating to the confession of the appellantwere produced before the committal court, the evidence ofPws.4, 5 and 6 positively prove the seizure effected on thebasis of the confession made by the appellant. Under theabove circumstances, though the original of Exts.P8 andP8(a) are not produced, the Judge of the trial court 9Crl.A.No.359 of 2010perfectly justified in acting upon Exts.P8 and P8(a), byvirtue of Section 63 of the Evidence Act. According to thelearned Public Prosecutor, the prosecution has succeededin proving the involvement of the appellant in the crime, bywhich the appellant snatched away M.O.1 gold chain fromthe person of CW1 after having trespassed into the houseof CW2 and inflicting injury on the husband of CW2. Thusaccording to the learned Public Prosecutor, the findings ofthe court below is fully correct and justified and nointerference is warranted.7. I have carefully considered the argumentsadvanced by the counsel for the appellant and the learnedPublic Prosecutor. I have also gone through the evidenceand materials on record and I have perused the judgmentof the trial court.8. In the light of the rival pleadings and the evidenceand materials on record, the only question to be consideredis whether the prosecution has succeeded in proving andestablishing the complexity and the involvement of the 10Crl.A.No.359 of 2010accused in the incident that alleged to have taken place on15.2.2004 and committing the offence punishable underSections 450 and 392 of IPC and whether the trial court isjustified in its finding and convicting the appellant for theoffence under Section 450 and 392 of IPC. As I indicatedearlier, though Pws.1 to 7 were examined and Exts.P1 toP8(a) documents were marked to substantiate theallegation against the appellant, the prosecution has verymuch relied upon the documents Exts.P8 and P8(a) toprove the case. PW1 is only the attestor to Exts.P1 scenemahazar. PW2 is the son of CW2 from whose person,M.O.1 was allegedly snatched away. PW2 is not an eyewitness to the incident. PW3 is the wife of PW2 whoidentified M.O.1 gold chain but she is also not an eyewitness to the incident. PW4 is the Head Constableattached to Hill Palace police station who accompaniedPW6, the Circle Inspector of police, Hill Palace Policestation, to effect the recovery and the prosecution has gotmarked Ext.P8 through PW4 which is a carbon copy of the 11Crl.A.No.359 of 2010seizure mahazar, who is also an attestor to Ext.P8mahazar. PW5 is the then Sub Inspector of policeattached to Hill Palace police station who registered crimeNo.713 of 2008 in that police station for the offencepunishable under Section 401 of IPC and who effected thearrest of the appellant and other accused in that crime.When PW5 was examined, he had deposed that at the timeof arrest of the appellant and other accused in CrimeNo.713 of 2008, the appellant and other accused disclosedabout their involvement in several other crimes and duringsuch interrogation, according to PW5, the appellant hereinmade Ext.P8(a) statement connected with the incident thattaken place on 15.2.2004 and thus according to PW5, hehad registered Ext.P2 FIR in crime no.742 of 2008.According to PW5, as the place of occurrence involved incrime no.742 of 2008 is within the territorial jurisdiction ofUdayamperoor police station, Ext.P2 FIR was sent to thatpolice station. PW6, as I indicated earlier, was working asthe Circle Inspector of Police, Hill Palace police station and 12Crl.A.No.359 of 2010it is PW6 who effected the recovery from the shop of CW4.PW7 is the then Sub Inspector of Udayamperoor policestation who registered Ext.P4 FIR in the present crime ie.,crime no.471 of 2010, on receiving Ext.P2 FIR from the HillPalace police station. The witnesses examined by theprosecution are not helpful for the prosecution to provethe identity of the appellant as the person who trespassedinto the house of CW2 and snatched away M.O.1 goldchain. The alleged victim-CW2 is not examined in this caseprobably due to her old age. However, there is nosubstantial evidence to show that, it was the appellant whotrespassed into the house of CW2 and stealthily removedM.O.1. 9. Though there is no direct evidence, the attempt ofthe prosecution is to connect the appellant with the allegedoffence by relying upon the documents namely, Exts.P8and P8(a). As I indicated in the foregone paragraph, thelearned counsel for the appellant advanced severalarguments against the acceptance of Ext.P8 mahazar and 13Crl.A.No.359 of 2010Ext.P8(a) confession statement of the appellant, mainly onthe basis of the conditions enumerated under section 63 ofthe Evidence Act. According to me, before considering themerits of those contentions, it is worthwhile to have a closescrutiny of Exts.P8 and P8(a) and the circumstances underwhich the same were produced before the court and itsacceptability. Ext.P8 seizure mahazar was marked by theprosecution through PW4. According to PW4, he is awitness to the mahazar since he had accompanied PW6. Itis relevant to note that during the chief examination ofPW4, Ext.P8 was not marked. After the cross examinationof PW4, he was recalled and further examined and duringsuch further chief examination the prosecution has gotmarked Ext.P8. The defence raised objection in markingthe carbon copy of the mahazar but the same was markedsubject to further proof. Similarly, when PW6 wasexamined in chief, neither Ext.P8 nor Ext.P8(a) weremarked initially. But after cross examination, as in the caseof PW4, PW6 was recalled and Ext.P8 was shown to him 14Crl.A.No.359 of 2010and identified. When the prosecution attempted to provethe disclosure statement of the appellant, the defenceraised objections but the same was overruled and markedas Ext.P8(a) in the deposition of PW6. But Ext.P8(a) is notseparately produced and marked. In the schedule of theimpugned judgment also, Ext.P8(a) is not seen markedseparately. 10. Now let us examine Ext.P8(a). Alongwith Ext.P2FIR, the confession statement of the appellant is alsoproduced. The relevant portion of the confessionstatement of the appellant is extracted hereunder forconvenience :-വ(cid:2)ട(cid:4)നകത(cid:8) ക(cid:4)ടന(cid:8) ഉറങ(cid:4)യ ഒര(cid:17) പ(cid:19)(cid:20)യ(cid:21) ച(cid:23)ന സ(cid:8)പ(cid:25)(cid:2)യ(cid:17)ചട കഴ(cid:17)ത(cid:4)ല“ക(cid:4)ടന സ(cid:28)ര(cid:30)മ(cid:20)ല ഞ(cid:20)ന ച(cid:19)(cid:20)ട(cid:4)ച$ട(cid:17)ത(cid:17). ആ സ(cid:8)പ(cid:25)(cid:2) ഒ$യ(cid:17)ണ(cid:20)ക(cid:4)യപ*(cid:20)ളഉണരന(cid:8) എഴ(cid:17)പനറ(cid:17) വന പ(cid:19)(cid:20)യ(cid:21) ച(cid:23)ന ഒര(cid:20)ള(cid:17)ചട മ(cid:17)ഖത(cid:8) മ(cid:17)ര(cid:17)കപ1വച2കക ചക(cid:20)ണ(cid:8) ഇട(cid:4)$(cid:17). ഞങള മ5ന(cid:8) പ(cid:19)ര(cid:17)(cid:21) അവ(cid:4)ചട ന(cid:4)ന(cid:17)(cid:21) ഓട(cid:4)പ*(cid:20)യ(cid:4).ഞ(cid:20)ന ച(cid:19)(cid:20)ട(cid:4)ച$ട(cid:17)ത സ(cid:28)ര(cid:30)മ(cid:20)ല മ(cid:17)ര(cid:17)കപ1വച2 കകയ(cid:4)ല ചക(cid:20)ട(cid:17)ത(cid:17). ആസ(cid:28)ര(cid:30)മ(cid:20)ല വ(cid:4)റ വകയ(cid:4)ല മ(cid:17)ര(cid:17)കപ1വന എന(cid:4)ക(cid:8) 2,000/- ര5(cid:19) (cid:25)ന(cid:17).” 15Crl.A.No.359 of 2010“...................എചന ചക(cid:20)ണ(cid:17)പ(cid:19)(cid:20)യ(cid:20)ല സ(cid:28)ര(cid:30)മ(cid:20)ല വ(cid:4)റ കടയ(cid:17)(cid:21) വ(cid:20)ങ(cid:4)യആചളയ(cid:17)(cid:21) മ(cid:20)ല എട(cid:17)ത വ(cid:2)ട(cid:17)(cid:21) ഞ(cid:20)ന ക(cid:20)ണ(cid:4)$(cid:17) (cid:25)ര(cid:20)(cid:21). ”(Emphasissupplied). But when PW6 was examined, after overrulingthe objection raised by the defence, the trial court markedExt.P8(a) which reads as follows :-സ(cid:28)ര(cid:30)മ(cid:20)ല ഞ(cid:20)ന മ(cid:20)രത(cid:20)ണത(cid:17)ള ന(cid:4)പ1(cid:20)വ(cid:4)ളയ(cid:4)ല(cid:17)ള ഒര(cid:17) കടയ(cid:4)ല വ(cid:4)റ(cid:17)“.എചന ചക(cid:20)ണ(cid:17)പ(cid:19)(cid:20)യ(cid:20)ല സ(cid:28)ര(cid:30)മ(cid:20)ല വ(cid:4)റ കടയ(cid:17)(cid:21) വ(cid:20)ങ(cid:4)യ ആചളയ(cid:17)(cid:21) ഞ(cid:20)നക(cid:20)ണ(cid:4)$(cid:17)(cid:25)ര(cid:20)(cid:21).”The above portion appears to be find a place in Ext.P8seizure mahazar. In Ext.P8, the crime referred to is crimeno.713 of 2008 of Hill Palace police station. Ext.P2 reportis also with respect to crime no.742/TR of Hill Palace policestation. In the confession statement, recorded in crimeno.713 of 2008 and produced along with crime no.742/TRof Hill Palace police station, the description of the incidentis pertained to the crime that taken place on 15.2.2004 ie.,crime no.471 of 2008 of Udayamperoor police station. Soa conjoined reading of those documents would show that, 16Crl.A.No.359 of 2010M.O.1 was handed over to Murukadevan by the accusedand there is no disclosure to the effect that the accused/appellant had sold M.O.1 to any person or he had offeredthe police that he shall point out the shop and the personto whom the gold chain sold. Therefore, the evidence ofPW4 and PW6 are not sufficient to hold that M.O.1 wasrecovered on the basis of the confession statement of theappellant. The contents of those documents shows that, itwas not the appellant who sold M.O.1 to CW4. If that beso, no legal sanctity can be attached to Exts.P8 and P8(a),relied on by the court below to connect the appellant withthe alleged crime. 11. Apart from the legal objection raised by thelearned counsel for the appellant, on the basis of Section63 of the Evidence Act and the decisions reported in 2007(2) KLT 807 (SC), 1998(1) KLT 197 and 2010(2) KLD127 (Kar.), it can be seen that no evidential value can begiven to Exts.P8 and P8(a), since the prosecution has 17Crl.A.No.359 of 2010miserably failed to examine CW4-the owner of the shop,from where allegedly M.O.1 was recovered ; and also CW5,the independent witness, who cited as an attestor toExt.P8. Besides the above, it is also relevant to note thatthere are minor contradiction between the evidence ofPws.4 and 6 regarding the seizure etc. But it is beyonddispute that, according to the prosecution, the officialsattached to Tamil Nadu police department were present atthe time of the alleged seizure, still then the prosecutionhas miserably failed to examine any of the officials of theTamil Nadu police who present at the time of the allegedseizure. As rightly pointed out by the learned counsel forthe appellant that, inspite of the report of the PresidingOfficer of the court of Additional Chief Judicial Magistrate,the trial court has erroneously held that the report of theMagistrate is not final regarding the non production of theoriginal of Ext.P8. Therefore according to me, theevidence available on record, especially Exts.P8 and P8(a),has no legal sanctity and such documents cannot be acted 18Crl.A.No.359 of 2010upon, especially in the absence of any other credible andreliable evidence to connect the appellant with the incidentthat occurred in crime no.471 of 2008 of Udayamperoorpolice station.12. In the light of the above discussions and the factsand circumstances stated above and due to the paucity ofsufficient and cogent evidence to connect the appellantwith the crime in the alleged offence, it cannot be said thatthe prosecution has succeeded in proving the involvementof the accused in the above case and certainly, the benefitof doubt will go in favour of the appellant. Therefore, I amunable to sustain the findings and conviction of the trialcourt and accordingly, the conviction recorded by the trialcourt against the appellant is set aside.13. In the result, this appeal is allowed setting asidethe conviction and sentence imposed against the appellantvide judgment dated 8.2.2010 in S.C.No.81 of 2009 of thecourt of the Additional Sessions Judge (Ad hoc-I),Ernakulam, and accordingly the appellant is acquitted of 19Crl.A.No.359 of 2010all the charges levelled against him in this case and he isset at liberty.14. As this Court has allowed the above appeal andset aside the conviction and sentence acquitting theappellant of all the charges levelled against him in thecase, the appellant is entitled to get released from the jailforthwith, if he is not required in any other case.Therefore, the Registry is directed to forward the gist ofthis judgment to the Superintendent, Central Prison,Viyyur, for appropriate action.V.K.MOHANAN, Judgeami/