Bail Slip (Crl.A.No.1021/2006) The Appellants/Accused Nos.4 and 5 viz. 1.Ravi S/o.Thirunavukkarasu (A4) and 2.Chockan @ Anandan S/o.Shanmuga Chettiar were directed to be released on bail as per order of this Court dated 3.8.2007 in Crl.M.P.No.1/2007 in Crl.A.No.1021/2006 on the file of this Court Bail Slip (Crl.A.No.1021/2006) The Appellant/Accused No.1 viz. perumal S/o.Muthusamy Thevar was directed to be released on bail as per order of this Court dated 30.10.2007 in M.P.3/2007 in M.P.2/2007 in M.P.1/2007 in Crl.A.No.1021/2006 on the file of this Court. Bail Slip (Crl.A.No.278/2007) The Appellant/Accused No.2 viz. Ramkumar @ Ramu S/o.Marimuthupillai was directed to be released on bail as per order of this court dated 5.4.2007 in Crl.M.P.1/2007 in Crl.A.No.278/2007 on the file of this Court. Bail Slip (Crl.A.No.256/2007) The Appellant/Accused No.3 viz. S.Kumar @ Palanikumar S/o.Samayamuthukonar was directed to be released on bail as per order of this Court dated 3.8.2007 in Crl.M.P.No.1/2007 in Crl.A.No.256/2007 on the file of this Court. Bail Slip (Crl.A.No.489/2007) The Appellant/Accused No.6 viz. Sridhar S/o.Raju was directed to be released on bail as per order of this Court dated 12.7.2007 in M.P.No.1/2007 in Crl.A.No.489/2007 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.11.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL Nos.1021 of 2006, 278, 256 and 489 of 2007 1.Perumal 2.Ravi 3.Chockan @ Anandan .. Appellants in CA.No.1021 of 2006/Accused Nos.1,4 & 5 https://hcservices.ecourts.gov.in/hcservices/ Ramkumar @ Ramu .. Appellant in CA.No.278 of 2007/Accused No.2 S.Kumar @ Palanikumar .. Appellant in CA.No.256 of 2007/Accused No.3 Sridhar .. Appellant in CA.No.489 of 2007/Accused No.6 Vs. State rep. by The Inspector of Police, Tirupur Rural Police Station, Tirupur Crime No.478 of 2004 .. Respondent in all the appeals/Complainant (Cr.No.amended as per order of this Court dt. 5.9.2007 in MP 2/2007) These criminal appeals have been preferred under Section 374 (2) Cr.P.C. against the judgment of the learned Additional District and Sessions Judge, Fast Track Court No.III, Coimbatore made in S.C.No.264 of 2005, dated 31.3.2006. For Appellants : Mr.R.John Sathyan for A-1 Mr.P.Vijendran for A-4 and A-5 in C.A.No.1021 of 2006 Mr.V.Bhiman in C.A.No.278 of 2007 Mr.Gopalakrishna Lakshmana Raju, SC for Mr.R.Radhapandiyan in C.A.No.256 of 2007 Mr.C.M.Gunasekaran in CA.No.489 of 2007 For Respondents : Mr.P.Kumaresan, APP - - - - COMMON JUDGMENT (The judgment of the Court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern the above four criminal appeals. Criminal Appeal No.1021 of 2006 is filed by A-1, A-4 and A-5, Criminal Appeal No.278 of 2007 is filed by A-2, Criminal Appeal No.256 of 2007 is filed by A-3 and Criminal Appeal No.489 of 2007 https://hcservices.ecourts.gov.in/hcservices/ is filed by A-6. 2.All these appeals challenge the judgment of the learned Additional District and Sessions Judge, Fast Track Court No.III, Coimbatore made in S.C.No.264 of 2005, whereby these appellants/accused stood charged under Sections 458, 395 and 396 IPC, tried, found guilty under Sections 396 and 458 IPC and awarded life imprisonment each and to pay a fine of Rs.2000/- each, in default to undergo 8 months R.I. under Section 396 IPC and 10 years R.I. each and to pay a fine of Rs.2000/- each, in default to undergo 8 months R.I. under Section 458 IPC and they were acquitted of the charge under Section 395 IPC and the sentences were ordered to run concurrently. 3.The short facts necessary for the disposal of these appeals can be stated thus: a)P.W.1, when on his way to his office, namely M/s.Sakthi Knitting company on 23.6.2004 at about 8.00 a.m., was intercepted by P.W.3, a sweeper working in the godown and was told that the security of the godown was not found there. On hearing the same, P.W.1 rushed to the godown and found that it was kept open. He also found the dead body of Thangavelu, the security with the hand tied with M.O.1, thread and a saree. On information, P.W.2, the wife of the deceased, rushed to the spot and found the dead body of her husband. b)P.W.1 proceeded to the respondent police station and gave Ex.P.1, the complaint to P.W.18, the Sub Inspector of Police, who registered the case in Crime No.478 of 2004 under Sections 302 and 380 IPC. Ex.P.16, the F.I.R. was despatched to the Court. c)On receipt of the copy of the F.I.R., P.W.21, the Inspector of Police, took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.5, the observation mahazar and Ex.P.23, the rough sketch. He conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.24, the inquest report. He recovered M.O.12, saree, M.O.1, nylon thread and M.O.2, iron rod under a cover of mahazar. He also recovered bloodstained earth and sample earth under a cover of mahazar. The place of occurrence and the dead body were photographed by P.W.17, the photographer. M.O.24 (series), photos and M.O.25 (series), negatives were marked. Then, the dead body was sent to the hospital for the purpose of autopsy. d)P.W.4, the Doctor attached to the Government Hospital, Tiruppur, on receipt of the requisition, has conducted post-mortem on the dead body of the deceased. He has issued Ex.P.2, the post- mortem certificate and Ex.P.3, the final opinion, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained to vital organs. e)On 2.7.2004, the Investigator arrested A-1 at Velampalayam https://hcservices.ecourts.gov.in/hcservices/ and he came forward to give confessional statement, which was recorded in the presence of the witnesses. The admissible part of the same was marked as Ex.P.9, pursuant to which, he produced M.O.16, sickle, M.O.17 (series) currency notes of Rs.15000/- and M.O.18, wall clock, which were recovered under a cover of mahazar. f)Following the same, the Investigator arrested A-3, who gave confessional statement, which was recorded in the presence of the witnesses. The admissible part of the same was marked as Ex.P.11, pursuant to which he produced M.O.20 (series) currency notes worth Rs.1000/-. P.W.21 also arrested A-6 on 2.7.2004 and recorded his confessional statement in the presence of the witnesses, the admissible part of the same was marked as Ex.P.17, pursuant to which he produced M.O.23, van, M.O.26 (series) 3 yarn bundles (a portion of M.O.6 (series) and M.O.27 (series) currency notes of Rs.1000/-, which were recovered under a cover of mahazar. A-4 was also arrested by the Investigator in the presence of the witnesses and he has given his confessional statement, which was recorded, the admissible part of which was marked as Ex.P.19. Pursuant to the same, he produced currency notes and shirt, which were recovered under a cover of mahazar. g)P.W.21 arrested A-5, who has come forward to give confessional statement, which was recorded in the presence of the witnesses, the admissible part of the same was marked as Ex.P.21. Pursuant to the same, A-5 produced currency notes and a shirt, which were recovered under a cover of mahazar. On 4.7.2004, P.W.21 arrested A-2, who has come forward to give confessional statement, which was recorded in the presence of the witnesses, the admissible part of the same was marked as Ex.P.14. Pursuant to the same, he produced M.O.21, nylon shirt and M.O.22, pant, which were recovered under a cover of mahazar. All the accused were sent for judicial remand. h)P.W.21, pending investigation, examined P.W.9, who has stated that he saw the accused No.1 along with 5 others at about 3.00 p.m. on 22.6.2004 at Veerapandi bifurcation near a tea stall and he questioned A-1 as to why he has not gone for work and A-1 replied that he was leaving for Madurai. The investigator also examined P.W.11, who is the Electrician of the Sakthi Knitting Company and he has stated that he went to the house of A-1 seeking for tailors. At that time, he found A-1 and all other 5 accused along with Van. His statement was recorded. P.W.15 Raja, a dealer of second grade export company, gave statement to the effect that 5 bundles of yarn were actually purchased by him and his statement was also recorded. i)P.W.21 further investigated the matter and altered the charges into one under Section 396 IPC. Ex.P.25, the alteration report was sent to the court. All the material objects recovered were sent for chemical analysis by the Forensic Science Department and the report was obtained. On completion of the investigation, the Investigator filed the final report. https://hcservices.ecourts.gov.in/hcservices/ 4.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 21 witnesses and also relied on 26 exhibits and 31 M.Os. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which they flatly denied as false. No defence witness was examined. The trial court, after hearing the arguments advanced on either side and looking into the materials available, took the view that the prosecution has proved the case beyond reasonable doubt and found the accused/appellants guilty under Sections 396 and 458 IPC and awarded punishments as referred to above, which is the subject matter of challenge in these appeals. 5.Advancing argument on behalf of the appellants in Criminal Appeal No.1021 of 2006, the learned counsel would submit that the prosecution had no direct evidence to offer; that it has miserably failed to prove its case or bring any nexus between the accused and the crime in question; that the prosecution relied on the circumstances, namely P.W.9 saw A-1, A-6 and others at Veerapandi junction at about 3.00 p.m. on 22.6.2004; that the occurrence has taken place, according to the prosecution, between 3.00 a.m. and 5.00 a.m. on 23.6.2004; that so far as P.W.9 was concerned, he was examined and his statement was recorded only on 2.7.2004, but his statement was sent to the Court after a long time; that it is pertinent to point out that he has given statement only after the arrest of A-1 on 2.7.2004; that till that time, he did not speak to anybody that he saw A-1 and others on 22.6.2004; that at the time of inquest, it is shown that he was present; that if to be so, naturally one would expect him to tell the fact that he met the accused, but he has not done so; that apart from that P.W.9 continued to be in employment of the said Knitting Company and hence he came forward to oblige the said company in order to connect the accused with the crime and under these circumstances, his evidence could not be taken into consideration. 6.Added further the learned counsel that so far as P.W.11 was concerned, he was examined only on 3.7.2004; that according to him, he went to the house of A-1 at Velapalayam on 22.6.2004 night and at that time, A-1 and 5 other accused were present; that he has categorically stated that he did know their names; that P.W.11 also continued to be in employment of the said company and thus, he came forward to oblige the said knitting company; that even assuming that the statement of P.W.11 is taken to be correct, it will not in any way connect the accused with the crime, since he has seen all the accused in the house of A-1 and nowhere it is shown that it is near the place of occurrence and under these circumstances, the evidence of P.W.11 should also be rejected. 7.The next circumstance relied on by the prosecution was the recovery from A-1; that he was arrested on 2.7.2004; that P.W.13 was the witness for the confession and the recovery of A-1; that the arrest, confession and the recovery cannot be believed for two https://hcservices.ecourts.gov.in/hcservices/ reasons; that the first reason is that P.W.13 was actually the employee of the said Knitting company; that there was a charge of misappropriation of Rs.1,50,000/- against him, in respect of which, a case was registered; that he has also acknowledged the liability and he also undertook to make the payment and thus, he is under the grip of the said company and hence he has come forward to oblige the company and thus, he gave false evidence; that from the evidence of P.W.16, it would be quite clear that on 24.6.2004 itself, he was taken to police station; that thereafter, A-1 was brought to the police station; that if to be so, on 25.6.2004, A-1 was in the police station and hence the claim of the police that A-1 was arrested on 2.7.2004 was not only imaginary, but also false and under these circumstances, the recovery from A-1 also would go; and that so far as the identity is concerned, the evidence of the witnesses speaking as if they have seen them already cannot be believed. 8.Further, in the instant case, it is the specific case of the prosecution that 20 bags of yarn were actually stolen, which is the subject matter of dacoity; that all the account books and other things, according to the Investigator, were perused, but they were not actually recovered for perusal by the court; that P.W.16 has been examined in respect of the sale of 20 bags of yarn; that according to him, 15 bags were sold to Ragupathy and 5 bags were sold to one Raja through Sivakumar; that the said Ragupathy, from whom 15 bags of yarn were recovered, was not examined; that equally, so far as 5 bags of yarn is concerned, P.W.15 Raja was examined, but Sivakumar was not examined and thus the recovery also cannot be believed; that the prosecution has miserably failed to bring home the guilt of the accused and under these circumstances without appreciation of defence or any of the aspects as stated above, the trial court has come to a wrong conclusion and hence the judgement of the trial court has got to be set aside. 9.The learned Senior Counsel appearing for one of the accused in short would submit that the prosecution has miserably failed to bring home the guilt of A-2; that nothing has been recovered from him and also no one has implicated him; that he was arrested on 04.07.2004; that the statement has gone to the court belatedly and thus, the prosecution was bereft of evidence insofar as A-2 was concerned. 10.The learned counsel appearing for the other accused would submit that in the instant case so far as A-6 was concerned, according to prosecution, P.W.9 has seen A-1, A-6 and others at 3 p.m. on 22.06.2004; that he has not actually stated that A-6 was actually the owner of the vehicle; that P.W.9 did not give cogent reason for his presence at Veerapandi junction, where he met the accused persons; that P.W.9 continued to be in service during the relevant time and hence his service was taken by the police; that he was examined by the investigator only on 2.7.2004; that till that time, he has not whispered anything to anybody; that his statement has gone to the court belatedly; that P.W.9 gave the Van https://hcservices.ecourts.gov.in/hcservices/ number at the time of investigation, but what was recovered was actually found to be different; and that when A-6 was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found, the number which was given by P.W.9 at the time of investigation was not given and thus, what was recovered was also found to be different. 11.The learned counsel would further add that according to P.W.11, he found A-1 along with others at Velapalayam, which according to the prosecution, is not near the scene of occurrence; that he was examined on 3.7.2004, but his statement was sent to the Court only on 24.9.2004 and there was a long time interval; that no explanation was forthcoming from the prosecution; that even at the time of questioning under Section 313 Cr.P.C., the number of van was found to be different; that according to the prosecution, A-6 was arrested at Madurai and no witness has been taken from Madurai for his arrest, confessional statement and the recovery of M.Os., but two witnesses were taken from Tiruppur in order to serve the purpose; that this would be quite clear that actually he was not arrested and no confessional statement was given and no recovery was also made, as alleged by the prosecution; that so far as the recovery of van is concerned, P.W.14 was examined, but he has not given any particulars regarding the same; that P.W.20 was also examined for that purpose, but he has not spoken anything about the same and thus, their evidence in no way would connect the accused with the crime; that the M.Os recovered from A-6 were M.O.23, Van, M.O.26-3 cones of thread and M.O.27-Rs.1000; that so far as M.O.23, Van is concerned, it was not clearly proved and M.O.26 is concerned, when 20 bags of cotton were recovered, it is highly inconceivable that three cones of thread were recovered from him and hence no way, it would connect the accused with the crime. 12.The learned Senior Counsel would further submit that in the instant case, the prosecution has not brought home the guilt of the accused, since it had no direct evidence; that apart from that an attempt was made to prove the circumstances, but the prosecution failed to prove the same; that in the instant case, the evidence of P.Ws.9 and 11 could not be taken into service, because P.W.9 has seen the accused on the previous day, i.e. 12 hours prior to the occurrence; that insofar as P.W.11, he met A-1 in his residence at Valapalayam; that it is not the case of the prosecution that Velapayalam was situated near the mill in question or P.W.9 and P.W.11 have seen them near the scene of occurrence; that it would be quite clear that in no way, it would connect the accused with the crime; that finger print experts were taken into service, but their report was not actually produced before the court; that so far as the recovery is concerned, necessary witnesses for recovery have not been examined; that under these circumstances, the witnesses who belonged to the company have been taken as witnesses; that in the instant case, the circumstances relied on by the prosecution in no way would connect the accused with the crime and thus, the prosecution has miserably failed to prove its case and hence the appellants are https://hcservices.ecourts.gov.in/hcservices/ entitled for acquittal in the hands of this court. 13.The Court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 14.It is not in controversy that one Thangavelu, the watchman of Sakthi Knitting Company was done to death in an incident that took place on the night hours between 3.30 a.m. and 5.00 a.m. on 23.6.2004 within the godown of the said Mill. Following the inquest made by P.W.21, the Inspector of Police, the dead body was subjected to post-mortem by P.W.4, the Doctor and he has issued Ex.P.2, the post-mortem certificate and Ex.P.3, the final opinion and he has also deposed before the court as a witness that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained to vital organs. The fact that he died out of the same was not also questioned. 15.The case of the prosecution was that the accused/appellants made lurking trespass into the godown premises, committed the murder of watchman and took away 20 bags of cotton of the godown. In order to substantiate the act of these accused, namely the commission of dacoity and also murder, the prosecution has no direct evidence to offer, but the prosecution relied on certain circumstances. It is not that the court is unmindful of caution that in a given case like this when the prosecution rested its case on circumstantial evidence, it must place and prove necessary circumstances, which must constitute a chain without a snap and also point to the hypotheses that except the accused no one else could have committed the offence. In the instant case, even after application of the above principle of law, the court is satisfied that the prosecution has placed and proved necessary circumstances pointing to the guilt of the accused. 16.The specific case of the prosecution was that on the night hours on 22.6.2004, namely on the early hours of 23.6.2004, Thangavelu, the watchman available at the place of occurrence, namely the godown of the mill, was murdered. This fact was never disputed. In the instant case, A-1 was previously employed as the Security of the very same mill and he was dismissed from service two years prior to the occurrence. Thus, it would be quite clear that P.W.9 and P.W.11, who were employed in the said mill, definitely knew A-1 already. The evidence of P.W.9 was to the effect that on 22.6.2004 at about 3.00 p.m. at Veerapandi junction, he met A-1 and A-6, the van driver along with 4 others. It is not the case of prosecution that Veerapandi junction where P.W.9 met the accused persons is near the place of occurrence, but all the accused persons, who belonged to Madurai, were seen at 3.00 p.m. on 22.6.2004 at Veerapandi junction, which is situated within the place of Tiruppur is the relevant fact. 17.Secondly, according to P.W.11, he went to the house of A-1 on 22.6.2004, which is situated at Velapalayam. According to him, he wanted to get tailors and at that time, all other accused were https://hcservices.ecourts.gov.in/hcservices/ also present along with the van. It is also not the case of the prosecution that the resident of A-1 at Velapalayam is near the mill, but it is pertinent to point out that all the accused persons along with the van were seen by P.W.11 at the residence of A-1. In the instant case, after looking into the evidence, the court is of the considered opinion that the identity of the accused persons did not become necessary for the simple reason that P.W.11 has deposed that the other five accused came to meet A-1 when he was employed as Security of the Mill and under these circumstances, P.W.11 knew them very well. In a given case like this where witnesses already knew or acquainted to the accused, there is no requirement for any identification parade. Therefore, the court is satisfied that P.W.11 had seen all the accused in the house of A-1 along with the van, which in the opinion of the court is the relevant fact. Further, all the accused were found with the van. The contention put forth by the learned counsel for the appellants is that A-1's house was at Velapalayam and it was away from the place of occurrence and hence there is nothing to show that these accused persons proceeded to the place of occurrence and committed the offence, for which reply was also given by the prosecution, which in the opinion of the court is an apt one. 18.Further, the specific case of the prosecution was that the entire 20 bags of cotton were sold by the accused only through P.W.16. 15 bags were sold to one Ragupathy, while the other 5 bags were sold to P.W.15, Raja through one Sivakumar. Thus, all the 20 bags were sold by A-1 only through P.W.16. P.W.16 was an utter stranger. He has categorically spoken in his evidence that on 23.6.2004, he received a phone call from A-1 that he has got 20 bags of cotton, which are ready for sale and therefore, he could come and purchase them. Accordingly, P.W.16 went to the house of A-1 and found 20 bags of cotton. All these bags were identified by P.W.16 in court. At this juncture, it is pertinent to point out that these cotton bags, which were actually the subject matter of dacoity from the mill, in question, were within a short span of one