IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18-12-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRL.A.Nos.324 and 757 of 2008 Shankar Reddy .. Appellant in CA 324/2008 Pappachi @ Papanna @ Papuraj .. Appellant in CA 757/2008 vs State rep. By The Inspector of Police Mathigiri Police Station Dharmapuri District. (Crime No.99 of 2002) .. Respondent in both appeals Criminal appeals preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the I Additional District Judge, Krishnagiri, made in S.C.No.207 of 2005 dated 7.3.2008. For Appellants : Mr.V.Vibhishanan for Mr.P.Subba Reddy in CA 324/2008 Mr.V.Gopinath Senior Counsel for Mr.L.Mahendran in CA 757/2008 For Respondent : Mr.P.Kumaresan Additional Public Prosecutor COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern these two appeals namely C.A.No.324 of 2008 by A-1 and C.A.No.757 of 2008 by A-2. They challenged the judgment of the I Additional Sessions Division, Krishnagiri, made in S.C.No.207 of 2005 whereby the appellants stood charged, tried, found guilty and awarded punishment as follows: https://hcservices.ecourts.gov.in/hcservices/ ACCUSED CHARGES FINDING PUNISHMENT A-1 & A-2 392 r/w 397 IPC Guilty 8 years RI along with a fine of Rs.2000/-, i.d., 2 years RI A-1 & A-2 302 IPC Guilty Life Imprisonment along with a fine of Rs.2000/-, i.d., 3 years RI A-2 307 IPC Guilty 5 years RI along with a fine of Rs.2000/-, i.d., 1 year RI A-1 324 (2 counts) IPC Not guilty 2.The short facts necessary for the disposal of these appeals can be stated as follows: (a) P.W.1 is the husband of the deceased Selvi. On 14.6.2002, P.W.1 accompanied by his wife, was returning to Titan Quarters in Hosur to Mathigiri Road in a TVS 50 after purchasing the household articles. When they were so coming, both A-1 and A-2 came in their Yamaha two wheeler and were chasing. At that time, A-2 was a pillion rider, and the bike was driven by A-1. The accused came towards them, and suddenly, A-1 snatched the chain which was worn by the deceased, and immediately A-1 drove the vehicle fast. Then, both of them escaped from the place. (b) P.W.1 and the deceased were searching for the accused, and they were going. At that time, on the way, they found both the accused. The deceased shouted pointing to A-2 that it was he who snatched the chain. Immediately, P.W.1 stopped the vehicle and intercepted the other vehicle in which the accused were travelling, and both A-1 and A-2 fell down. At that time, the deceased caught hold of the shirt of A-2. Immediately, A-1 stabbed Selvi on her left side chest and neck with a pitchuva knife. A-2 also stabbed her on her shoulder with a pitchuva knife. At that time, P.Ws.2, 3 and 4 went to the rescue. Immediately, A-1 stabbed both P.Ws.2 and 3, and A-2 stabbed P.W.4. So causing injuries to them, they left the place immediately. (c) It was P.W.1 who took his severely injured wife to the Government Hospital, Hosur, where the Doctors examined and declared her dead. Then, further intimation was given to Hosur Police Station which was in turn forwarded to Mathigiri Police Station. P.W.12, the Doctor, has examined P.W.4 at about 8.40 P.M. On 14.6.2002, and has given a wound certificate, Ex.P10. She also examined P.W.3 and issued a wound certificate, Ex.P11. Equally, P.W.2 was examined by her, and Ex.P12 is the wound certificate in that regard. https://hcservices.ecourts.gov.in/hcservices/ (d) On intimation, P.W.16, the Inspector of Police, attached to Mathigiri Police Station, proceeded to the Government Hospital where he took the statement of P.W.1, which is marked as Ex.P1. On the strength of Ex.P1, the report, a case came to be registered in Crime No.99 of 2002 under Sections 379, 324, 307 and 302 of IPC. The printed FIR, Ex.P27, was despatched to the Court. (e) P.W.16 took up investigation, proceeded to the spot, made an inspection of the first place where the incident of robbery has taken place and prepared an observation mahazar, Ex.P5, and a rough sketch, Ex.P28. Then, he went to the second occurrence place where the murder has taken place, and prepared an observation mahazar, Ex.P6, and also a rough sketch, Ex.P29. Thereafter, he conducted inquest on the dead body of Selvi in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P30. He examined the witnesses and recorded their statements. Then, a requisition, Ex.P15, was given to the hospital authorities for the purpose of postmortem. (f) P.W.13, the Civil Assistant Surgeon, attached to the Government Hospital, Hosur, on receipt of the said requisition, conducted autopsy on the dead body of Selvi and has noticed four external injuries. She has issued a postmortem certificate, Ex.P16, with her opinion that the deceased would appear to have died of shock and haemorrhage due to injuries to vital organs heart and lungs about 14 to 16 hours before autopsy. (g) The further investigation was taken up by P.W.17, the Inspector of Police, who caused the arrest of A-1 on 19.7.2002, and he gave a confessional statement which was recorded in the presence of witnesses. Ex.P33 is the admissible part. Pursuant to the confession, he produced M.O.2, gold ingot, and he has further produced M.O.1, motorbike, a cell phone, a country made gun and a Titan Watch. They were all recovered under a cover of mahazar. (h) A requisition was given for conduct of the test identification parade. The same was conducted by P.W.14, the Judicial Magistrate. As far as A-1 was concerned, it was conducted at Central Prison, Salem, and P.Ws.1 to 4 were taken for identifying him. The identification parade proceedings are marked as Ex.P21. Equally, as regards A-2, the identification parade took place at Central Prison, Bangalore, where P.Ws.2, 3 and 4 have participated in the parade. The identification parade proceedings are marked as Ex.P26. On completion of investigation, the Investigating Officer filed the final report. 3.The case was committed to Court of Sessions, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 17 witnesses and also relied on 34 exhibits and 14 material objects. On completion of evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which they flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt https://hcservices.ecourts.gov.in/hcservices/ and hence, found them guilty and awarded the punishment as referred to above. Hence these appeals at the instance of the appellants. 4.Advancing arguments on behalf of the appellant in C.A.No.324/2008, the learned Counsel Mr.V.Vibhishanan would submit that in the instant case, the prosecution came out with two parts; that firstly, there was a robbery in which A-1 and A-2 were involved, and secondly, A-1 and A-2 attacked the deceased and also in that transaction, A-1 attacked P.Ws.2 and 3, and A-2 attacked P.W.4; that the earliest document was Ex.P1, the report, given by P.W.1, the husband of the deceased; that a perusal of Ex.P1 would clearly indicate that nowhere he has pointed out any role of A-1 in Ex.P1 or Ex.P15, the requisition, given by P.W.16, the Investigating Officer, for the conduct of postmortem or the evidence before the Court; that nowhere it is found that A-1 had any role in the commission of robbery, and it was also attributed to A-2; and that under the circumstances, the lower Court was not correct in finding A-1 guilty as far as that particular charge was concerned. 5.Added further the learned Counsel that the prosecution relied on the confession alleged to have been given by A-1 and also the consequent recovery of the material objects; that it is pertinent to point out that all these material objects were not connected to Crime No.99 of 2002; but, they were all connected to some other crime number, and thus, the prosecution cannot rely on the recovery of those material objects; that as far as the recovery of the gold ingot marked as M.O.2, was concerned, there was no evidence to show that the gold chain alleged to have been stolen, was actually melted into gold and made as ingot; that in the absence of the same, it cannot be taken or presumed that it was the gold chain which was the subject matter of robbery; and that under the circumstances, the prosecution has miserably failed to prove that part of the case. 6.As far as the second incident was concerned, the learned Counsel would submit that the case of the prosecution was that at the time of occurrence, A-1 not only stabbed the deceased, but also attacked P.Ws.2 and 3; but, the lower Court was not prepared to accept the case of the prosecution insofar as the overt acts attributed that he attacked P.Ws.2 and 3 with knife and has acquitted him; that the same would mean that the lower Court was not ready to believe the evidence of P.Ws.2 and 3; and that the same reasons are all equally applicable to the entire episode. 7.The learned Counsel would further add that in the instant case, A-1 was arrested on 19.7.2002; that as far as the identification parade in respect of A-1 was concerned, it was in no way helpful to the prosecution; that there is evidence to show that A-1 was actually in the police station and was shown to the witnesses; and that under the circumstances, it was of no consequence at all. 8.Added further the learned Counsel that even from Ex.P1, the report, and also the evidence of P.W.1 it would be quite clear that the entire act of attacking the deceased was done only by A-2, and nowhere, A-1 is indicated; but, the trial Court has taken an erroneous view and https://hcservices.ecourts.gov.in/hcservices/ found A-1 guilty of both the offences without any evidence whatsoever, and hence he is entitled for acquittal in the hands of this Court. 9.Advancing arguments on behalf of A-2 in C.A.No.757/2008, the learned Senior Counsel Mr.V.Gopinath would submit that in the instant case, there was no recovery that has been made from A-2; that the entire case rested upon the identification parade; that as far as the identification parade was concerned, he was actually caused arrest in some other case and was taken on P.T. Warrant; that the identification parade had taken place on 7.2.2003 at the Central Prison, Bangalore; that as far as A-2 was concerned, P.W.1 was not taken for identification parade; that he has actually identified A-2 only before the Court and that too, after a period of five years; that as far as P.W.2 was concerned, though he has identified A-1 and A-2, he has categorically admitted that photographs were shown to him; that as far as P.W.3 was concerned, he turned hostile; that as regards P.W.4, he identified only A-1, and at the time of identification parade, he wrongly identified a person as if he was A-2; and that under the circumstances, the identification parade cannot be attached with any evidentiary value. 10.Added further the learned Senior Counsel that in the instant case, except the above part of the evidence, nothing was available; that as far as the evidence of P.W.1 was concerned, the occurrence has taken place in a minute or two within which the chain was snatched, and hence he could not identify; that he was not taken for the identification parade; but, he has identified A-2 only in the Court hall and that too after a period of five years, and thus it would be of no worth; that the prosecution had no evidence to offer; that it can be well stated that there was lack of evidence as far as A-2 was concerned, and hence he was to be acquitted of the charges; but, the lower Court has taken an erroneous view which has got to be set aside. 11.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 12.It is not in controversy that an incident has taken place on 14.6.2002 at about 8.15 P.M. at which the chain of the deceased Selvi was snatched by two persons, and they have actually escaped from the place. Following that incident, both the persons were intercepted by P.W.1, the husband of the deceased, and also the deceased, and in that process, Selvi was stabbed to death. Following the inquest made by the Investigator, P.W.16, after the registration of the case in Crime No.99/2002, the dead body was subjected to postmortem by the Doctor, P.W.13, who has given her opinion that she died out of shock and haemorrhage due to the injuries to the vital organs namely heart and lungs. This homicidal death was never disputed by the appellants, and hence it has got to be recorded so. 13.In the case on hand, in order to substantiate the charges levelled against the appellants, the prosecution rested its case on the evidence of P.Ws.1 to 4. As could be seen from the available materials, the incidents were two in number. The first part is as to robbery, and the second part is as to murder in which P.Ws.2 to 4 were also injured. https://hcservices.ecourts.gov.in/hcservices/ According to P.W.1, he accompanied his wife, and he took his wife in the two wheeler, and she was sitting as a pillion rider, and when they were going, the incident has taken place, and it was the pillion rider namely wife, who has identified A-2 as person who snatched the chain. It is the further evidence of P.W.1 that it was A-1 who drove the bike, and both of them have escaped from the place. Thus, it was only P.W.1, who was actually the witness in respect of the incident of robbery. From the evidence of P.W.1, it could be seen that he has identified that it was A-1 who drove the bike, and A-2 was a pillion rider who snatched the chain. It is true that the occurrence has taken place in night hours and that too, within a minute or two. Ordinarily, unless and until a proper identification is made, such an evidence cannot be accepted since it is not the case of the prosecution that P.W.1 already knew either of the accused. Now, the occurrence projected by the prosecution did not stop there. According to P.W.1, he and the deceased were in further search of the assailants in their vehicle, and at that time, when they found both the accused near the bus stop, P.Ws.2 to 4 were also there, and on seeing A-2, the deceased Selvi shouted pointing to A-2 that it was he who snatched the chain. The evidence would further go to show that immediately they were intercepted by P.W.1 by parking the vehicle across, and then both of them fell down; and that at that time, the incident has taken place. From the evidence of P.W.1, it could be well seen that it was the deceased who caught hold of the shirt of A-2 who snatched the chain; that at that time, it was A-1 who intervened by stabbing her; that on seeing this, P.W.1 caught hold of him; that immediately, A-2 attacked the deceased also; and that when P.Ws.2 to 4 went to the rescue, they were also attacked by the appellants. 14.In the case on hand, it is quite evident that the involvement of A-1 and A-2 are spoken to by P.W.1. P.W.1 has not only seen them at the place of first occurrence of robbery, but also at the time when the second occurrence has taken place. It has also taken place in a public place. It is pertinent to point out that in a given case like this, when two incidents have taken place and that too, the first part is a robbery, and the second part is a murder and when they were intercepted, they attacked not only the deceased, but also some others, naturally such incidents would cause a dent in the memory of a human being. It is not a case where the occurrence has taken place for only a few minutes. But, originally, there was snatching of chain, and thereafter, the second incident has taken place in which not only the deceased was attacked, but also P.Ws.2 to 4 were attacked by both. It is true that the lower Court has acquitted A-1 in respect of charge under Sec.324 (two counts) of IPC for attacking P.Ws.2 and 3 since there was some inconsistency in evidence. Hence the benefit was available to him. But, the same did not mean that the entire episode of the prosecution could be rejected. In this case, A-1 was arrested on 19.7.2002 within a month of the occurrence. Immediately after his arrest, he has given a confessional statement leading to the recovery of some of the material objects. It is true that except M.O.2, all other material objects produced by him, were not connected to this case, and hence that part of the evidence could not be relied. As far as A-2 was concerned, the prosecution came forward to state that it was the gold ingot which came into existence by melting the chain which was worn by the deceased at the time of occurrence. https://hcservices.ecourts.gov.in/hcservices/ 15.Now, the contention put forth by the learned Senior Counsel for the appellants that there is no evidence to show that the chain was actually melted into ingot cannot be accepted at all since the gold ingot has been recovered in the instant crime number on the confession made by A-1. Apart from that, when and how the robbed chain was melted into gold and made as ingot was actually within the special knowledge of A-1. In a given case, where a relevant fact is within the special knowledge of a particular person, so long he does not come out, it could be inferred that it was he who has committed the crime. Now, it remains to be stated that it was within the special knowledge of A-1. The accused cannot expect the prosecution to explain how the chain was melted into ingot. 16.Apart from the above, much comment was made by the appellants' side on the identification parade conducted. As far as A-1 was concerned, within a short span of time, P.W.1 and the other witnesses have identified him properly. As regards A-2, the evidence would go to show that when the deceased and P.W.1 were in search of the assailants, the deceased shouted pointing to A-2 that it was he who robbed the chain, and when she caught hold of the shirt of A-2, it was A-1 who attacked her, and when P.W.1 caught hold of the shirt of A-1, A-2 attacked her. It is true that P.W.1 was not taken for identification parade; but, he has clearly identified A-2 in the Court hall. At this juncture, the learned Senior Counsel would submit that P.W.1 has identified him in Court hall only after a period of five years. It is true that he has identified so; but, in a case like this, the memory of the person has got to be appreciated since the occurrence would have caused a dent in his memory. This Court is unable to notice any infirmity in the identification parade or any lacuna in the proceedings conducted. Thus, as far as the identification parade is concerned, the Court has to accept the evidence put forth by the prosecution. 17.Further, as regards the contention put forth by the learned Counsel for A-1 that the identification parade has been done only after showing the photographs, this Court is of the considered opinion that the identification in a given case is only a supportive or corroborative piece of evidence, and it is only to corroborate the substantive piece of evidence. The substantive piece of evidence is the direct evidence adduced by the prosecution in the instant case through P.Ws.1 to 4. According to P.W.1, it was A-2 who snatched the chain from the wife Selvi, and also it was he who joined with A-1 in stabbing her at the place of occurrence. In such circumstances, as pointed out earlier, it would naturally cause a dent in the memory of a person because such incident of robbery or stabbing the person might happen once in a man's life, and ordinarily, he would not forget the same. Thus, it is clear that two incidents have taken place in a short interval, and this Court is of the view that the substantive piece of evidence of P.W.1 coupled with the evidence of the other three witnesses would suffice pointing to the guilt of the accused. Under the circumstances, the comments and criticisms levelled by the learned Counsel and recorded above do not carry merit whatsoever. The lower Court was perfectly correct in marshaling the evidence, considering the same and finding them guilty for robbery and also for murder. As regards the charge under Sec.307 of https://hcservices.ecourts.gov.in/hcservices/ IPC framed against A-2, there is nothing to interfere in the judgment of the Court below. Accordingly, the judgment of the lower Court has got to be sustained. 18.In the result, both the appeals fail, and the same are dismissed confirming the judgment of the trial Court. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv/ To: 1.The I Additional District Judge Krishnagiri 2.The Inspector of Police Mathigiri Police Station (Crime No.99 of 2002) 3.The Public Prosecutor High Court, Madras. 4. The Director General of Police, Chennai. 5. The District Collector, Dharmapuri District at Krishnagiri. 1 cc To Mr.L.Mahendran, Advocate, SR.71526. CRL.A.Nos.324 and 757 of 2008 GG(CO) RVL 30.12.2008 https://hcservices.ecourts.gov.in/hcservices/