IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 8-4-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.No.63 of 2010 1.Gangaram 2.Prakash @ Darmendar Shingh .. Appellants/Accused 1 & 2 vs State by: Inspector of Police K-3 Aminjikarai Police Station Chennai (Crime No.257/2007) .. Respondent/ complaint Criminal appeal preferred under Sec.374 of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge (Fast Track Court No.III), Chennai, made in S.C.No.144 of 2009 dated 14.12.2009. For Appellant : Mr.P.Pugalenthi For Respondent : Mr.V.R.Balasubramanian Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the Additional Sessions Division, Fast Track Court No.III, Chennai, made in S.C.No.144 of 2009 whereby the appellants herein stood charged along with A-3 under Sections 302 read with 34 and 382 read with 34 of IPC, tried, found guilty under Sections 302 read with 34 and 382 read with 109 of IPC and awarded life imprisonment along with a fine of Rs.10000/- and default sentence and five years Rigorous Imprisonment along with a fine of Rs.10000/- and default sentence respectively while the trial Court recorded an order of acquittal of A-3. 2.Short facts necessary for the disposal of this appeal can be stated as follows: (a) The deceased Rambabu was a native of Uttar Pradesh. He settled at Madras and was residing in Door No.10, Vadaku Kasa Thottam Street, Aminjikarai, as a tenant under P.W.1. He was doing pani poori business employing 10 persons. A-1 was a relative of the deceased and also doing the same pani poori business. A-2 is the son of A-1. A-3 is a native of Madhya Pradesh. He was brought to Chennai by the deceased as a servant https://hcservices.ecourts.gov.in/hcservices/ for helping him in his business. A-3 was also residing in the same residence of the deceased. The split up accused Jaisingh was a partner of Rambabu with whom he was carrying on pani poori business at Karnataka. The relationship of the deceased and Jaisingh was strained in their business, and he was demanding money to which course Rambabu was not amenable. Then Jaisingh came over to Tamil Nadu and was making demand; but Rambabu was not ready to make payment. Thereafter Jaisingh sought the help of A-1 to make a demand and if not paid, told him to do Rambabu away with. (b) On 8.5.2007 between 2.15 and 2.30 P.M., A-1 and A-2 went to the place of Rambabu, and on seeing A-1, he took him inside. Thereafter, Rambabu asked A-3 to go and get cigarette for him. He went outside. Then A-1 demanded money on behalf of Jaisingh, but Rambabu refused. There was a quarrel following which A-3 came back when he found A-1 and A-2 threatening him. He wanted to pacify the situation. At about 3.00 P.M., when the demand was made, it was refused following which A-2 was sitting on the lap of Rambabu, while A-1 and A-3 took a pillow and it was actually pressed on his face and they caused smothering. Thereafter, A-1 and Jaisingh also attacked him with knives. This was actually witnessed by A-3. Immediately, they informed to A-3 that if he reveals to anybody, he would also meet the dire consequences. Immediately A-2 and A-3 left the place of occurrence. A-1 met P.W.1 and informed that Rambabu was found in a pool of blood. Then P.W.1 proceeded to the respondent police station where he gave a complaint Ex.P1, to P.W.17, the Inspector of Police. On the strength of Ex.P1, the report, a case came to be registered in Crime No.257 of 2007 under Sections 302 IPC and 382 read with 34 of IPC. The printed FIR, Ex.P26, was despatched to the Court. (c) P.W.17 took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P27. Then, he recovered M.Os.1 to 8 in the presence of P.Ws.1 and 2. He examined the witnesses and recorded their statements. P.W.5, the photographer, was asked to take photographs which were actually taken. Then inquest was conducted by the Investigating Officer on the dead body in the presence of witnesses and panchayatdars, and an inquest report, Ex.P28 was prepared. The dead body was sent to the Government Hospital for the purpose of autopsy. (d) P.W.13, the Tutor, Department of Forensic Medicine, Government Kilpauk Medical College, on receipt of the requisition conducted autopsy on the dead body of Rambabu and has given his opinion in Ex.P20, the postmortem certificate, that the deceased would appear to have died of shock and haemorrhage due to multiple stab wounds. (e) Pending investigation, A-3 was arrested on 23.8.2007. He was produced before P.W.11, the Judicial Magistrate, on 30.8.2007 and 31.8.2007. On both the days, his statement was recorded under Sec.164 of Cr.P.C. The same is marked as Ex.P13. Following the said confessional statement, A-1 and A-2 were arrested on 4.9.2007. A-1 came forward to give a confessional statement voluntarily, which was recorded. Pursuant to the same, he took https://hcservices.ecourts.gov.in/hcservices/ the police party to P.W.10, who is the brother of P.W.16 to whom Rs.8000/- cash which was stolen on the date of occurrence, was handed over, and the same was recovered under a cover of mahazar in the presence of P.W.1 and another. Thereafter, A-2's confessional statement was recorded. They were sent for judicial remand. All the material objects were subjected to analysis and Ex.P17, the chemical analyst's report, and Ex.P18, the serologist's repot, were received. On completion of investigation, the Investigator 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 marched 17 witnesses and also relied on 33 exhibits and 12 material objects. On completion of the 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 on either side and took the view that the prosecution has proved the case beyond reasonable doubt as far as A-1 and A-2 are concerned, and hence found them guilty and awarded punishment as referred to above while it recorded an order of acquittal of A-3. Hence this appeal at the instance of the appellants. 4.Advancing arguments on behalf of the appellants, the learned Counsel would submit that the occurrence is alleged to have taken place at about 4.45 P.M. on 8.5.2007; that the evidence of P.W.1 would clearly indicate that it was A-1 who informed him that Rambabu was found in a pool of blood, and immediately A-1 accompanied P.W.1 to the police station and the complaint was given; that after the case was registered, the Investigating Officer came to the place and at that time, A-1 was also present, and in his presence only all the material objects were recovered; that thereafter also, A-1 was carrying on his regular business for number of days; and that this would clearly indicate that A-1 could not have got any involvement in the crime. 5.Added further the learned Counsel that the prosecution would claim that there was a recovery of Rs.8000/- from P.W.10, the brother of P.W.16; that it was the amount stolen from the place of occurrence by A-1 at the time, and he handed over the same to them; that there is nothing to indicate that the money was actually kept by Rambabu the deceased at the time of occurrence; that the evidence of P.Ws.10 and 16, who are the brothers, was actually discrepant and did not indicate that the amount was actually received by either of them from A-1 at or about the time of occurrence; and that this piece of evidence was not available to the prosecution. 6.The learned Counsel would further submit that actually A-3 was arrested, according to the Investigator, on 23.8.2007 and he was produced before the Judicial Magistrate on 30.8.2007 and 31.8.2007; that according to P.W.11, the Judicial Magistrate, he has given a confessional statement, and it has been recorded under Sec.164 of Cr.P.C.; that strict compliance of the mandatory https://hcservices.ecourts.gov.in/hcservices/ provisions under Sec.164 Cr.P.C. has not been actually done by the Judicial Magistrate; that apart from that, P.W.6 was the Translator in whose presence, according to the Judicial Magistrate, it was recorded; but P.W.6 would claim that he did not go to the Court at all, and hence it would be quite clear that the confessional statement recorded by P.W.11 could not have taken place at all. 7.Added further the learned Counsel that in the instant case, it was only the confessional statement of A-3; that to act on the confessional statement of the co-accused, there must be a corroborative piece of evidence on the material particulars; that in the instant case, there is nothing available; and that under the circumstances, the said piece of evidence should not have been acted upon. 8.It is further added by the learned Counsel that insofar as A-2, the prosecution was unable to show any evidence either direct or circumstantial; that the evidence now placed before the trial Court were only flimsy; that they could not bring home the guilt of the accused in any way or in any manner known to law; that under the circumstances both the appellants have got to be acquitted, but the trial Court has taken an erroneous view, and hence the judgment of the trial Court has got to be set aside. 9.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 10.It is not in controversy that the dead body of Rambabu was found in a pool of blood at the place of occurrence. After the case was registered by P.W.17 on the information of P.W.1 in Ex.P1, the investigation was taken up by him. Following the inquest made by him, the dead body was subjected to postmortem by P.W.13, the Doctor, who has given a categorical opinion that he died out of shock and haemorrhage due to the multiple wounds. The cause of death as put forth by the prosecution was never disputed by the appellants before the trial Court and equally here also. Hence no impediment was felt by the trial Court in recording so. This Court is of the opinion that it has been done rightly. 11.In order to substantiate the charges levelled against the appellants the prosecution had no direct evidence to offer and it has relied upon circumstantial evidence. The circumstances are as follows. Firstly, the confessional statement was given by A-3 before the Judicial Magistrate, P.W.11, and recorded under Sec.164 of Cr.P.C. on 30.8.2007 and 31.8.2007. Secondly, pursuant to the said confessional statement, A-1 was arrested on 4.9.2007, and he came forward to give a confessional statement, which was recorded. Pursuant to the same, there was a recovery of Rs.8000/- from P.W.10, who is the brother of P.W.16, and it was actually a part of the money stolen from the place of occurrence. Thirdly, it was A-1 who informed to P.W.1 immediately at the time of occurrence that Rambabu was found in a pool of blood. The prosecution relied on these circumstances. This Court is mindful of the caution made by the Apex Court and by the settled principles of law that before https://hcservices.ecourts.gov.in/hcservices/ acting on the confessional statement given by one accused against the co-accused, in order to sustain a conviction, the Court must see a corroborative piece of evidence so as to accept the same. In the instant case, this Court is satisfied that the prosecution has brought home the guilt of A-1 in view of the following circumstances. 12.According to P.W.1, he is a landlord of Rambabu, and a particular part of the property was rented out to him for carrying on the business of pani poori, and he was residing there also, and on the date of occurrence and that too at about 3.30 P.M. or 4.00 P.M., it was A-1 who came and informed him that the dead body of Rambabu was found in a pool of blood, and immediately he rushed over there. This piece of evidence put forth by P.W.1 was never disputed. This would clearly indicate the fact that A-1 was actually present at the place and time of occurrence as put forth by the prosecution. Further it is true that A-1 accompanied P.W.1, and both went to the police station, and A-1 has come back, and he was present at the time of initiation of the investigation. Hence, the Investigator had nothing to suspect about his conduct at that time. But, the involvement of A-1 was subsequently spoken to by A-3 when he gave the confessional statement to P.W.11, the Judicial Magistrate, which was recorded under Sec.164 of Cr.P.C. Much comment was made that it was not procedurally done. This Court is unable to see any infirmity or illegality. The provisions of Sec.164 Cr.P.C. and the mandates thereunder have been strictly followed by the Magistrate. Under the circumstances, that contention put forth by the learned Counsel cannot be countenanced. 13.After recording of the confessional statement under Sec.164 Cr.P.C., the Investigator came to know about the involvement of A-1 and A-2 in the crime. Pursuant to the same, A- 1 was arrested on 4.9.2007, when he came forward to give a confessional statement. Following the same, he took the police personnel to P.W.10, from whom Rs.8000/- has been recovered. Now, at this juncture, it is pertinent to point out that P.Ws.10 and 16 are brothers. Their evidence would clearly indicate that the amount was handed over to them and they were keeping the same, and at the time when the police party was taken by A-1, P.W.10 alone was available, and it was he who handed over the amount. A reading of the evidence of P.W.10 would clearly indicate that this amount of Rs.8000/- was handed over to his brother P.W.16 when he was also present, and the said amount has actually been handed over to the police, and on production the same has been recovered. From the evidence of P.W.1, it is clear that Rambabu used to keep the amount in the bureau, and the bureau was broke open, and all the goods inside were found scattered hither and thither. This has also been well mentioned in Ex.P1, the report. This amount has actually been recovered on production from P.W.10. The evidence available would clearly indicate that it was the part of the amount stolen at the place and time of occurrence. It could also be seen that M.O.1, pillows, and M.Os.5 and 6, knives, have also been recovered pursuant to the confessional statement given by A-1. That apart, the medical opinion that was canvassed that he died out of multiple wounds was also in full corroboration of https://hcservices.ecourts.gov.in/hcservices/ the above circumstances. Thus the confessional statement given by A-3 as to the involvement of A-1 stood fully corroborated by the other evidence which was projected by the prosecution before the trial Court. 14.Now the contentions put forth by the learned Counsel for the appellants that the evidence available against A-1 would not suffice cannot be accepted. This Court is of the considered opinion that the available evidence would go to show the presence of A-1 at the place and time of occurrence. He had no explanation to offer as to his presence. The money has actually been stolen by him at the time and from the place of occurrence. It has been recovered subsequently from P.W.10 which was actually handed over to P.W.16 by A-1 immediately after the occurrence was over. All would clearly indicate that it was A-1 who has committed the offence, and thus the prosecution has brought forth necessary circumstances which would suffice to hold that it was A-1 who committed the offence and caused the death and has also stolen the property. The trial Court has found him guilty under those provisions and awarded the punishment as stated supra and rightly too. Hence the judgment of the trial Court finding A-1 guilty and awarding punishment is sustained. 15.As rightly pointed out by the learned Counsel for the appellant, as far as A-2 is concerned, the prosecution case was that he was actually catching hold of the deceased at the time of occurrence. The prosecution has not brought forth either direct or indirect evidence in order to sustain the charges which were levelled against A-2. As far as A-2 is concerned, he is entitled for acquittal. 16.Accordingly, the conviction and sentence imposed on A-2 by the trial Court are set aside, and he is acquitted of all the charges levelled against him. The fine amounts if any paid by him shall be refunded to him. A-2 is directed to be set at liberty forthwith unless his presence is required in connection with any other case. 17.In the result, this criminal appeal is partly allowed. Sd/ Asst Registrar /True Copy/ Sub Asst Registrar nsv To: 1.The Additional District and Sessions Judge FTC No.III, Chennai https://hcservices.ecourts.gov.in/hcservices/ 2. Do-Through The Principle Sessions Judge, Chennai. 3. The Superintendent, Central Prison, Puzhal, Chennai. 4. The Director General of Police, Mylapore, Chennai.17. 5. The District Collector, Chennai. 6.The Inspector of Police K-3 Aminjikarai Police Station Chennai (Crime No.257/2007) 7.The Public Prosecutor High Court, Madras. 8. The Section Officer, Criminal Section, High Court, Madras. +2 CC to Mr.P.Pugalenthi, Advocate Sr.NO.23114 CRL.A.No.63 of 2010 (CO-KK) THS : 19.04.2010 https://hcservices.ecourts.gov.in/hcservices/