IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20-7-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.Nos.192 and 903 of 2006 Vijai ..Appellant/A-2 in CA 192/2006 Prakash ..Appellant/A-1 in CA 903/2006 vs State by: Inspector of Police Perundurai Police Station Crime No.413 of 2003 Erode District ..Respondent in both appeals Criminal appeals preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional District Court/Fast Track Court No.I, Erode, made in S.C.No.154 of 2005 dated 27.1.2006. For Appellants : Mr.N.Manokaran in CA 192/2006 Mr.P.Venkatasubramanian in CA 903/2006 For Respondent : Mr.N.R.Elango Additional Public Prosecutor COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern these two criminal appeals, C.A.No.192/2006 at the instance of A-2 and C.A.No.903/2006 at the instance of A-1, who along with A-3 stood charged, tried and found guilty by the Additional Sessions Division, Fast Track Court No.I, https://hcservices.ecourts.gov.in/hcservices/ Erode, in S.C.No.154/2005 and on being found guilty, awarded punishment as follows: ACCUSED CHARGES FINDING PUNISHMENT A-1 to A-3 450 IPC Acquitted A-1 to A-3 392 IPC Guilty 7 years RI A-1 to A-3 364 IPC Guilty 7 years RI A-1 to A-3 201 IPC Acquitted A-1 to A-3 302 IPC Guilty Life imprisonment 2.Necessary facts for the disposal of these appeals can be stated as follows: (a) P.W.1 was running a factory in the name and style of Sivajothi Packaging at Perundurai. P.W.1's sister was also a partner. About 40 persons were employed, among whom A-1, A-2, A-3 and also the juvenile accused, apart from P.Ws.5 and 6 were employed during the relevant time. P.W.1 used to leave the factory premises at about 9.00 P.M. and come back and open the next morning by 7.00 A.M. usually. As usual on 12.10.2003, he left the factory leaving a cash of Rs.30000/- in his bureau after locking the inner side doors of the cash box. At that time, the deceased Chinna Nagan who was employed as night watchman, was also present. On that day during night hours, P.W.2 along with the accused brought brandy along with chicken and other eatables, and they shared the same with the deceased. As per the plan, they gave brandy to the deceased, and when he got fainted, they got inside and robbed Rs.30000/- from the cash box, and immediately they took the deceased in the jeep which was driven by A-1. All other accused joined, and when he was alive, they left him in the railway track, and thereafter they came back. (b) At that juncture, P.W.7 found A-2 and questioned why he was there, but without answering, he was staring, and they brought back the jeep. At that time A-2, A-3 and the juvenile accused were washing the jeep tires which was noticed by P.W.4. Thereafter, on 13.10.2003, P.W.1 came to his factory and found the outer door locked inside. He got inside and found the inner doors of the cash box broke open. He also noticed Rs.30000/- which he left in the last night, was stolen. The night watchman was also not found. When he called the employees, A-1 and A-3 along with the juvenile accused and other persons were present; but, A-2 was not found. A thorough enquiry was made about A-2 as to his absence and since he belonged to Orissa whether he was making any attempt to leave for Orissa by the train scheduled by 2.00 P.M. that day. Even after verifying so, it was not so. Then he was making enquiry. https://hcservices.ecourts.gov.in/hcservices/ (c) While the matter stood thus, P.W.10, the Head Constable, was on duty at Tiruppur Railway Police Station. The morning hours of 13.10.2003 he was informed that there was a dead body found in the railway track within the jurisdiction of Pothanur Railway Police Station. The said complaint is marked as Ex.P5. After inspecting the same, he registered a case in Crime No.562 of 2003 under Sec.174 of Cr.P.C. Ex.P6, the printed FIR, was despatched to the Court. A copy was also sent to the Tahsildar. P.W.10 made an inspection and prepared an observation mahazar and a rough sketch, Exs.P7 and P8 respectively. Then he conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P9. Thereafter, the dead body was sent to the Government Hospital for postmortem along with a requisition. (d) The dead body was subjected to postmortem by P.W.9, the Civil Assistant Surgeon, attached to the Government Head Quarters Hospital, Coimbatore at Tirupur, and he has issued a postmortem certificate, Ex.P2. He has given his final opinion under Ex.P3 that the deceased would appear to have died of shock and haemorrhage due to head injury and multiple injuries. (e) In the meanwhile, P.W.1 proceeded to Perundurai Police Station and gave a report, Ex.P1, on the strength of which a case came to be registered by P.W.17, the Sub Inspector of Police, in Crime No.413/2003 under Sections 457 and 380 of IPC. The case was taken up for investigation. He went to the spot, made an inspection and prepared an observation mahazar, Ex.P27. The material objects from the place of occurrence were also recovered. (f) On 21.10.2003, A-2 was arrested, and he came forward to give a confessional statement, which was recorded. Pursuant to the same, he produced M.O.4, crowbar, which was recovered under a cover of mahazar. A-1 and A-3 were also arrested. They gave confessional statements. The admissible part is marked as Exs.P17 and P18 respectively. Pursuant to the same, they produced currencies in different denominations which are marked as M.O.2 series, and they were recovered under the mahazars, Exs.P19 to P24. The accused were also sent for judicial remand. (g) P.W.18, the Inspector of Police of that Circle, took up further investigation, examined the witnesses and recorded their statements. Then he altered the case to Sections 457, 381 and 302 of IPC. Ex.P29, the amended report, was sent to the Court. On completion of investigation he filed the final report against the accused under Sections 450, 393, 364 and 302 of IPC. 3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution marched 18 witnesses and also relied on 27 exhibits and 25 material objects. On completion of the evidence on the side of https://hcservices.ecourts.gov.in/hcservices/ 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 he 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 and hence found the appellants guilty and awarded punishment as stated above. Hence these appeals at the instance of the appellants. 4.Advancing arguments on behalf of A-1, the learned Counsel would submit that according to the prosecution, the occurrence has taken place on 12.10.2003; that the appellants were shown as employees in the factory of P.W.1; that no documentary evidence was forthcoming to prove that fact; that it was the specific case of the prosecution that Rs.30000/- was actually stolen from the factory of P.W.1 on the night hours of 12.10.2003; but, no documentary evidence was forthcoming; that what was available was the evidence of P.W.1 to that fact; but, it cannot be believed; and that there is no evidence to show that cash balance was actually available that time. 5.Added further the learned Counsel that according to P.W.2, the accused went over to get brandy, chicken and other eatables, and the accused persons and P.W.2 all shared along with the watchman, and thus he became fainted; but when the postmortem was conducted by P.W.9, the Doctor, he has given a categorical opinion and has given testimony at the time of the cross-examination that there was nothing to indicate that he has either consumed brandy or he had taken chicken, and thus it would be quite evident that the evidence of P.W.2 cannot be believed. 6.The learned Counsel would further add that as far as the last seen theory is concerned, actually no one of the witnesses namely P.Ws.4 to 7, have spoken to the fact that any one of them saw the deceased person in the company of the accused, and thus it cannot be called as a last seen theory. 7.The learned Counsel would further contend that the finger print expert was actually called, and he took the finger prints from the available materials; that immediately the investigation was taken up; that it is also candidly admitted by the Investigator that the finger prints of the accused were also taken, but they did not tally; that there were 50 persons employed at the time when the occurrence has taken place, and thus it would be quite probable that somebody else would have committed the crime; that as far as the recovery is concerned, merely because of the production of the currencies before the Court, it cannot be taken that they were recovered from the accused persons; that under such circumstances, when the prosecution had no direct evidence to offer, it should have placed and proved sufficient circumstances which must be looked with all caution, and thus the prosecution has not proved its case. https://hcservices.ecourts.gov.in/hcservices/ 8.In the second line of his arguments, the learned Counsel would submit that if the Court agrees with the case of the prosecution as to the factual position that the currencies were recovered from A-1, he could be found guilty under Sec.411 of IPC in the absence of any evidence pointing that the accused had got any involvement in the crime of murder. In support of his contention, the learned Counsel relied on two decisions of the Apex Court reported in 1993 SCC (CRI) 999 (UNION TERRITORY OF GOA V. BEA VENTURA D'SOUZA AND ANOTHER) and in 1994 SCC (CRI) 1721 (GAUTAM MAROTI UMALE V. STATE OF MAHARASHTRA). 9.Advancing arguments on behalf of A-2, the learned Counsel would submit that in the instant case, there was no evidence to indicate that A-2 was employed during the relevant time under P.W.1; that so long that fact is not proved, there is nothing to indicate that A-2 was actually employed during the relevant time; that it was claimed by the Investigator that admittedly, he was a man from Orissa and he was arrested in Orissa on 21.10.2003, and thereafter he has given a statement in Hindi, and P.W.16 was the person who translated the same, and thus it would be quite clear that he was not conversant to the language; that it has been translated, and thus it cannot be relied upon. 10.Added further the learned Counsel that what was all recovered from A-2 even as per the prosecution case, was only M.O.4, crowbar; that it is not the case of the prosecution that he has taken away any part of the amounts alleged to have been robbed; that if really he has participated in the crime, one would naturally expect him to take the part of the amounts, but has not done so. 11.The learned Counsel would further submit that as far as the occurrence that has taken place on 12.10.2003 was concerned, the case was registered on 13.10.2003 at about 4.00 P.M. and thus huge delay was noticed which remained unexplained; that apart from that, the FIR has reached the Court on 15.10.2003 at about 10.00 A.M.; and that even the Judicial Magistrate's Court is actually situated within the same compound where the police station is situated. 12.The learned Counsel would further add that as far as the questioning under Sec.313 of Cr.P.C. was concerned, it was actually asked in Tamil; that he could not understand what was actually asked to him since he was not conversant with the language; that as far as the recovery is concerned, the evidence that was put forth was actually shaky; that the witnesses who have spoken in favour of the prosecution namely P.Ws.4 to 6, were all employed under P.W.1; that P.W.7 was an utter stranger; that it was not the case that he was already known to A-2; that under the circumstances, their evidence could not be relied for any purpose at all; that the prosecution has miserably failed to prove its case, and hence he is entitled for acquittal in the hands of this Court. https://hcservices.ecourts.gov.in/hcservices/ 13.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 14.It is not in controversy that the dead body of Chinna Nagan was found on the railway track, and P.W.10 after the registration of the case in Crime No.562/2003 has given intimation to the Tahsildar who was served with the copy of the FIR. Then he went to the place where the dead body was found, and following the inquest, the dead body was subjected to postmortem by P.W.9 the Doctor, attached to the Government Hospital, who has given a categorical opinion as a witness before the Court and also through the postmortem certificate that he died out of shock and haemorrhage due to the injuries sustained by him. Thus the prosecution had established the fact that he died out of homicidal violence. 15.The gist of the case of the prosecution as could be seen was that A-1, A-2, A-3 and the juvenile accused in whose respect the case was split up, were employed in the factory of P.W.1 during the relevant time; that A-2 was a man from Orissa; that on the date of occurrence i.e., 12.10.2003, as usual P.W.1 left his factory premises leaving Rs.30000/- cash in his cash box, and after locking outside he went; that at that time, the deceased was employed as night watchman in the factory, and during night hours, the occurrence of robbery has taken place. According to the prosecution, the accused persons brought brandy and gave to the deceased, and when he was fainted, taking advantage of the same, they robbed the amounts and took the watchman to a nearby railway track and left him there, and thus caused the death, and they wanted to escape from the clutches of law. In order to prove these charges, the prosecution had no direct evidence to offer. This Court is mindful of the caution that in a given case where the prosecution rested its case on the circumstantial evidence, it must place and prove all necessary circumstances, and also it must make a chain without a snap and also pointing to the hypothesis that except the accused no one could have committed the offence. In the instant case, this Court is thoroughly satisfied that the prosecution has placed and proved the necessary circumstances in order to bring home the guilt of the accused. They can be stated as follows. 16.The fact that A-1, A-2, A-3 and the juvenile accused were employed during the relevant period in the factory of P.W.1 is spoken to not only by P.W.1, but his evidence stood corroborated by P.W.2 who was actually working there, and also P.W.5 who was working as Driver, and thus, the non production of any documentary evidence to show that they were all employed during the relevant time cannot be a reason to disbelieve their evidence. 17.Apart from the above, according to P.W.1, he left the premises leaving the cash of Rs.30000/- in the cash box, and he came https://hcservices.ecourts.gov.in/hcservices/ to the factory only in the next morning. From his evidence, it would be quite evident that Chinna Nagan was the night watchman in the factory. The evidence of P.W.2 would go to show that it was the accused and himself who brought brandy and also chicken along with other eatables, and all of them shared, and it was also given to Chinna Nagan the night watchman, and he was also found making faulty walks outside. Now the contention put forth by the learned Counsel for the appellants is that the evidence of P.W.2 cannot be accepted for the simple reason that not only the postmortem certificate but also the evidence of the Doctor was to the effect that nothing was found in the stomach indicating that he consumed liquor or any chicken food etc. It is to be remembered that they have taken this food and also brandy at about 10.00 or 11.00 P.M. But, the occurrence has taken place in the late night. It is also pertinent to point out that at the time when he was actually fainted after consuming the liquor, they took him in a jeep and left in the railway track. It remains to be stated that at first, the train crossed the line, and he was crushed, and cause of death remained unknown. The dead body was found in the next morning. There was sufficient interval for digestion of chicken food that was actually taken by him. Apart from that, the dead body was subjected to postmortem after a long lapse of nearly about 24 hours. Under the circumstances, it could not be spelt out as to the liquor taken by him, and therefore this contention has got to be rejected. 18.Besides the above, the evidence of P.W.5 was to the effect that he found A-1 driving the jeep during night hours, and the other accused were getting inside. Hence, it would be quite clear from his evidence that it was A-1 who drove the jeep, and A-2, A-3 and the juvenile accused had taken the jeep from the place. It is pertinent to point out that A-1 was not the driver of the jeep, and they had nothing to do with the jeep at all. But, the fact that the jeep was actually moved from the place of occurrence is spoken to by P.W.5, and it was he who noticed the same at that time. The case of the prosecution was that Chinna Nagan was given liquor and found fainted, and taking advantage of the same, they have taken him in the jeep. The connecting link was P.W.7, who found A-2 near the railway track, and he also questioned him; but, he was moving by staring. That apart, the dead body was also found in the railway track. Thus the presence of A-2 at the place of occurrence and that too nearby the railway track where the dead body was found, is a connecting link indicating A-2's involvement in the crime. Added circumstance was that after the crime, it was P.W.4 who found A-2, A-3 and the juvenile accused washing the tires of the jeep during night hours, and they had no occasion to do like that, but they wanted to make a escape from the clutches of law. All the above would go to show that the jeep was actually taken from the place of occurrence, and leaving Chinna Nagan in the railway track, they have come back. https://hcservices.ecourts.gov.in/hcservices/ 19.Above all, A-2 was actually arrested in Orissa and brought. Now the contention put forth by the learned Counsel for A-2 that had he got the intention to join others in robbing the cash, he would have shared the looted amount cannot be accepted for the simple reason that after coming to know that a case came to be registered, and a search was on, he ran to Orissa, and thus he was actually secured from Orissa. It remains to be stated that he gave a confessional statement. Though it was in Hindi, it was translated to Tamil by P.W.16. A statement under Sec.161 Cr.P.C. has been recorded, and it was produced before the Court. Consequent upon the confession, M.O.4, crowbar, used for breaking open the lock of the cash box and of the doors of the factory was recovered from A-2. M.O.4 was actually the weapon used for commission of the crime, and following the confessional statement made by him, it was recovered under a cover of mahazar. A witness has been examined whose evidence is also speaking of the nexus of the crime with A-2. 20.As far as the other accused are concerned, all the currencies have been recovered and produced before the Court pursuant to the confessional statements marked as Exs.P17 and P18. The witnesses have been examined in that regard, and the currencies stolen from the factory of P.W.1 have been recovered from them within a short span of time. Under the circumstances, it is a fit case where the presumption under Sec.114-A of the Evidence Act could be drawn. In a given case like this, when a stolen property is recovered from the accused within a reasonable time, it could be presumed that he is the thief or he is a person who is in custody of the stolen property. In the instant case, they were found to be in possession of the stolen property within a short span of time; but they had no explanation to offer. It is a fit case where a presumption could be drawn under the said provisions of the Evidence Act. Now the contention put forth by the learned Counsel for the appellants that number of persons were actually employed, and investigation was not taken up in that regard cannot be said to be a sound argument for the simple reason that the Investigator was able to fix the accused, and on their arrest, they gave confessional statements, and the currencies have actually been recovered, and then the story was unfolded. In such circumstances, there was no need for investigation to be made in that line. As far as P.Ws.2 to 6 were concerned, they were all actually employed by P.W.1 during the relevant time. Why and under what circumstance they have come to Court to give false evidence against the accused, the defence is unable to bring to the notice of the Court any reason. 21.In a case like this, there cannot be any direct evidence since the occurrence has taken place in the night hours, and they have caused the death of the night watchman and robbed the cash; but, one can expect the circumstantial evidence. This Court is mindful of the caution made by the Apex Court, and in the case on hand as stated above, there is a clear link pointing to the nexus of the accused persons with the crime. Hence the contentions put forth by the https://hcservices.ecourts.gov.in/hcservices/ learned Counsel do not carry any merit whatsoever, and they are liable to be rejected and accordingly rejected. The trial Court was perfectly correct in finding the appellants/accused guilty as per the charges and awarding punishment. There is nothing to interfere either in the factual or in the legal position. 22.In the result, both the criminal appeals fail, and they are dismissed confirming the judgment of the trial Court. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar nsv/ To 1.The Additional District Judge Fast Track Court No.I Erode. 2.The Inspector of Police Perundurai Police Station Erode District. 3.The Superintendent, Central Prison, Coimbatore. 4.The Public Prosecutor High Court, Madras. + 1 c.c. to Mr. N. Manokaran, Advocate. S.R.No.32694. CRL.A.Nos.192 and 903 of 2006 KA (CO) GSK 29.07.2009. https://hcservices.ecourts.gov.in/hcservices/