IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.12.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NO.52 OF 2008 Tamil Mani @ Mani @ Periya Samy .. Appellant/Accused No.1 Vs. State rep. by The Inspector of Police, Mallur Police Station, Salem District (Crime No.100 of 1997 of Panamarathupatti Police Station) .. Respondent/Complainant This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned I Additional District and Sessions Judge-cum-Chief Judicial Magistrate, Salem made in S.C.No.354 of 2000, dated 12.4.2002. For Appellant : Mr.R.M.Venkatesh For Respondent: Mr.P.Kumaresan, APP - - - - JUDGMENT (The judgment of the court was delivered by S.RAJESWARAN, J.) This appeal is against the judgment in S.C.No.354 of 2000 passed by the learned I Additional Sessions Judge-cum-Chief Judicial Magistrate, Salem, whereby A-1/the appellant herein along with three others stood charged under Sections 302 r/w S.34, 201 r/w S.34 and 392 r/w S.34 IPC. On trial, A-1 and A-2 were found guilty as per the charges and were sentenced to undergo life imprisonment each and to pay a fine of Rs.10000/- each, in default to undergo 3 years R.I. under Section 302 r/w S.34 IPC, one year R.I. and to pay a fine of Rs.1000/-, in default to undergo 3 months R.I. under Section 201 r/w S.34 IPC and 7 years R.I. and to pay a fine of Rs.1000/-, in default to undergo one year R.I. under Section 392 r/w S.34 IPC. The sentences were ordered to run concurrently. A-3 and A-4 were acquitted of the charges levelled against them. Hence this appeal has arisen at the instance of A-1. https://hcservices.ecourts.gov.in/hcservices/ 2.The brief facts of the case are as under: a)P.W.8 was residing at Alexandar Road, Attur and he was doing business of letting cycle, lorry and Van on hire. He was also owning a standard Van bearing Registration No.TN 27/Z 5297, but the registration was in the name of his wife. The driver was one Mohan and he is the deceased in this case. All these vehicles would be parked adjacent to Attur Government High School. TN 27/Z 8924 is a Mahendra Van and the driver of that vehicle is one Ganesan (P.W.4) and P.W.5 is also an another driver. Both P.Ws.4 and 5 used to park their vehicles in the same place, where the deceased Mohan had parked his Van. During the month of May, 1997, at about 8.00 p.m., A-1 and A-2 came to the market where all the Vans were parked and enquired P.Ws.4 and 5 to let the van on hire. Since P.Ws.4 and 5 had already booked their vehicles to some other clients, they declined to go. Thereafter, A-1 and A-2 approached the deceased Mohan and wanted his Van for hire to go to places like Samayapuram, Bannari and Palani. Thereafter, Mohan came to P.W.8's wife, informed her and took the Van. b)P.W.6, Jegadeeswari is the wife of Mohan, the deceased. In her evidence, she has stated that 5 years ago, Mohan, her husband, came and left with one set of clothes as he would be away on two days tour. P.W.1 is the Village Administrative Officer of Noolathukombai village. On 21.5.1997, he received an information that a body was found in the reserved forest lake in Survey No.1. P.W.1 went along with his staff to that place at about 11.00 a.m. and found a body was floating. He gave a complaint to Panamarathupatti Police station, which is marked as Ex.P.1. On getting the information that a body was floating, P.W.2, who is the resident of Kootaru, also visited the place. c)During 1997, one Palanisamy (P.W.19) was the Head Constable at Panamarathupatti police station. When he was on duty at about 12.00 noon on 21.5.1997, P.W.1 appeared before him and gave Ex.P.1, the complaint. P.W.19 received the same and registered an F.I.R. (Ex.P31) in Crime No.100 of 1997, under Section 174 Cr.P.C., and sent a copy of the same to the R.D.O. and also to the other officers. Thereafter, he went to the place of occurrence, where he found a male body floating. He drew a rough sketch (Ex.P.32) and also prepared an observation mahazar (Ex.P.2) in the presence of P.W.3 and the other witness. Thereafter, he took the body out of the lake and made an inquest in the presence of the witnesses and panchayatdars and prepared an inquest report (Ex.P.33). At that time, P.W.1 and others were present and their statements were also recorded. The identity of the dead body was not known at that time. Thereafter, he sent a requisition for conducting post-mortem through P.W.13 to the Doctor. d) The Doctor was summoned and photographes were taken through P.W.18, the photographer. M.O.27 (series) photos and M.O.28 (series) negatives were marked. P.W.9, the Doctor by name Vallinayagam, came to the place of occurrence, conducted autopsy and prepared a post- mortem certificate, which is marked as Ex.P.6. On completion of the investigation, the Investigating Officer also filed the final report. https://hcservices.ecourts.gov.in/hcservices/ 3.The case was committed to the court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution examined 22 witnesses and relied on 35 exhibits and 28 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 evidences of prosecution witnesses, which were denied by the accused as false. No defence witness was examined, but three documents were marked. After hearing the arguments advanced on either side, the trial court found the accused guilty as per the charges and awarded punishments as referred to above and has recorded an order of acquittal of A-3 and A-4. Hence this appeal has arisen at the instance of the appellant/A-1. 4.Advancing arguments on behalf of the appellant/A-1, Mr.R.M.Venkatesh, the learned counsel has made the following submissions: a)The trial court has decided the case only on circumstantial evidence as there was no eyewitness to the occurrence. While the trial court acquitted A-3 and A-4, the same benefit should have been given to the appellant/A-1 herein also. The lower court ought to have considered the fact that the date of occurrence was 18.5.1997 and the appellant herein was arrested on 19.9.1997 near the bus stop and he was found in possession of a Tape recorder and a nylon bag. According to the learned counsel, the recovery was made after four months from the date of occurrence while the appellant was arrested by the police. b)The learned counsel further submitted that there was no criminal intention established by the prosecution. If the intention of the accused was to get money, they would have sold the Van in the market and ran away and they would not have indulged in such activities. It is also further submitted that the lower court ought to have considered the fact that the appellant was seen by P.Ws.4 and 5 in the police station before the identification parade. According to the learned counsel, the evidences of P.Ws.4 and 5 cannot be believed as they are also drivers in that area and they could not have definitely seen the accused and the judgment rendered on the basis of their evidences cannot be sustained both in law and on facts. Hence the learned counsel prayed that the same benefit be given to the appellant herein as that of accused Nos.3 and 4. 5.The court heard the learned Additional Public Prosecutor on the above contentions and has gone through the documents available before the court. 6. The case of the prosecution is that A-1 to A-4 on 18.05.1997 hired the van and killed the driver (deceased) and thereafter sold the van and from the sale proceeds enjoyed themselves. According to the prosecution, A-1 and A-2 hired the van and A-3 and A-4 got into the van later. At about 10.00 o' Clock in the night when all of them were travelling in the van, A-1 asked the driver (deceased) to stop the van. When the van was stopped, A-2 throttled the neck of the https://hcservices.ecourts.gov.in/hcservices/ deceased with a nylon rope and A-1 stabbed the deceased three times on the left side of the stomach with a knife. Thereafter, the deceased was put on the back seat and the van was driven by A-1. As the driver of the van died, the body was thrown away by A-1 to A-4 near Noolathukombai after taking the watch and money from the body. A-1 to A-4 were also charged with selling the clothes of the deceased, the Audio player and the speaker fitted in the van, the steppney and jackey of the van to one Vetrivel at Thiruchengodu. 7. To prove the above case, the prosecution examined 22 witnesses and marked exhibits P1 to P3 and M.Os.1 to 28. 8. P.W.4 & 5 in their evidence stated that both of them are drivers and the deceased and themselves used to park their vehicles at the van's stand near Govt. High School, Attur. On 18.5.1997 at about 8.00 p.m., A-1 and A-2 came near them and want to hire their van for going to Palani and Samayapuram. As their van was already booked, they saw the driver (deceased) standing nearby and when asked, the deceased accepted to offer his services to them. 9. A-6 is the wife of the deceased. She in her evidence has stated that 5 years ago on a Sunday, 8.00 p.m., she gave a set of clothes to her husband, as he informed that he would be away on tour for two days. The driver (deceased) did not return even after 4 or 5 days and after hearing the news in the newspaper, she went to Panamarathupatti Police Station where she was shown the dhothi and shirt of her husband which she identified as clothes of her husband. Thereafter, she was taken to Government Hospital, where she was shown only the head of her husband. On seeing the mole (kUt[) and the broken teeth, she was able to identify that it was her husband's end. 10. P.W.7, who is a dhobi in his deposition stated that he used to put 'A' initial two times for the clothes of the deceased and the driver (deceased) used to come to him for washing his clothes. He also admitted that the shirt was the driver's (deceased) shirt and two 'A' initials with two points were put by him only. 11. An identification parade was conducted on 29.9.1997 at Salem Central Jail, by P.W.10, former Special Judicial Magistrate, (Sandlewood crimes), Salem. A-1 and A-2 were identified by P.W.4 (3 times) and P.W.5 (3 times). P.W.10 in his evidence has spoken about the procedure followed during the identification Parade. 12. P.W.15 in his evidence stated that he recovered the knife (M.O.24) from A-1. 13. From the above witnesses, it has been established that A-1 and A-2 alone hired the van driven by the deceased. It was also proved that the deceased was in fact the van driver as identified by his wife and his owner. https://hcservices.ecourts.gov.in/hcservices/ 14. Therefore, applying the last seen theory, the trial court has rightly convicted A-1 and awarded the punishment. The trial court has correctly applied the law in this regard and the same cannot be said to be incorrect. 15. Therefore, considering the evidences, exhibits and M.Os. available on record, it has to be seen that the guilt of the appellant herein has been fixed by the court beyond reasonable doubt. Therefore, the conviction and sentence imposed on the appellant by the trial court cannot be interfered with in this appeal. Hence, this appeal fails and deserves an order of dismissal. The conviction and sentence passed by the trial court is affirmed. Accordingly, this criminal appeal is dismissed. vvk/vaan Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1.The I Additional District and Sessions Judge-cum- Chief Judicial Magistrate, Salem. 2.Do The Principal Sessions Judge, Salem. 3.The Inspector of Police, Mallur Police Station, Salem District (Crime No.100 of 1997 of Panamarathupatti Police Station) 4.The Judicial Magistrate No.1, Salem 5.Do Through The Chief Judicial Magistrate, Salem. 6.The Superintendent, Central Prison, Coimbatore. 7.The District Collector, Salem. 8.The Director General of Police, Mylapore, Chennai 4. 9.The Additional Public Prosecutor, High Court, Madras. + 1 cc to Mr. R. M. Venkatesh, Advocate SR No.67842 CRL.A.NO.52 OF 2008 SGL(CO) SR/17.12.2008 https://hcservices.ecourts.gov.in/hcservices/