BAIL SLIP The Appellant / Accused No.2 was directed to be released on bail in and by the order of this Court dated. 11.06.2002 in Crl.M.P.No.4939 of 2002. IN THE HIGH COURT OF JUDICATURE AT MADRAS D A T ED: 28.10.2009 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR, J CRL.A.No.787 of 2002 Selvam ... Appellant / Accused No.2 Vs STATE Rep.By the Inspector of Police Arani Town Police Station S.C.NO.164 OF 2001. ... Respondent PRAYER:Criminal Appeal filed under Section 378 Cr.P.C., against the Judgement dated 31.05.2002 made in S.C.No.164 of 2001 on the file of the learned Additional Sessions Judge cum Chief Judicial Magistrate, Thiruvannamalai. For Appellant : Mr.L.Mahendran For Respondent : Mr.R.Muniapparaj, Govt. Advocate (Crl. Side) J U D G M E N T The appellant, who figured as accused No.2 in S.C.No.164/2001 on the file of the Additional Sessions Judge cum Chief Judicial Magistrate, Thiruvannamalai was prosecuted along with two other persons, namely Saravanan (A1) and Palani (A3) for alleged offences punishable under Sections 364, 382, 302 and 468 IPC. At the conclusion of trial, the trial court found A1 and A3 not guilty of any one of the offences with which they stood charged and acquitted them completely. However, the trial court found the appellant (A2) guilty of an offence punishable under Section 411 IPC, a lesser offence than the one under section 382 IPC with which he stood charged as per charge No.1 and of an offence punishable under section 468 IPC for which he stood charged as per charge No.3 and sentenced him to undergo rigorous imprisonment for two years for the offence under Section 411 IPC and rigorous imprisonment for five years and to pay a fine of Rs.30,000/- for the offence under Section 468 IPC with a default sentence of one year rigorous https://hcservices.ecourts.gov.in/hcservices/ imprisonment in case of default in payment of fine. The learned trial judge also directed collection of the fine amount and payment of the same to P.W.1 as compensation under Section 357(1)(b) of Cr.P.C. Challenging the conviction and sentence, the appellant (A2) has come forward with the present appeal under Section 374 Cr.P.C on various grounds set out in the appeal petition. 2. The case of the prosecution, in brief, is as follows:- i) The deceased Sivasamy, husband of P.W.1 was a taxi driver by profession. He had been issued a driving license under Ex.P3. At the relevant point of time late Sivasamy was functioning as the driver of an Ambassador car (taxi) belonging to P.W.2-Varadhavelu bearing Regn.No.TSL 9357. The said Sivasamy, who left his home on 07.08.1997 in connection with his job as taxi driver, did not return thereafter. Having waited in vain for about five days in the hope that he would return, his wife Muthulakshmi (P.W.1) lodged a complaint, marked as Ex.P1, on the file of Arani Town Police Station on 13.08.1997. P.W.29-Gopal, the then Sub-Inspector of Police attached to the said police station, received the said complaint and registered a case in Cr.No.300/1997 as a man missing case, for which Ex.P2-First Information Report was prepared by him. P.W.2, the employer of deceased Sivasamy had already lodged a complaint on 11.08.1997 under Ex.P4 on the file of Arani Town Police Station informing the police that his car along with the driver was missing. The said complaint was received in the police station on 11.08.1997 at about 20.30 Hours. The police, without registering a First Information Report based on the said complaint of P.W.2, assigned it C.S.R.No.177/1997. ii) Meanwhile, on 08.08.1997 at about 11.00 a.m P.W.12- Tamilnesan, the then Village Administrative Officer of Manjavadi village, received an information that a dead body of a male was found near the field of one Muthusamy on the east of Arani-Harur- Salem Road in between Kombur and Vellaiappan temple. On receipt of such an information, he rushed to the spot with his village menial, saw the dead body and then lodged a written complaint under Ex.P7 on the very same day at about 14.00 Hours on the file of Pappireddipatti Police Station. P.W.25-Ramasamy, a Head Constable attached to the said police station, registered a case in Cr.No.466/1997 under Section 174 Cr.P.C based on the said complaint of the Village Administrative Officer. Ex.P8 is the First Information Report prepared by him for the said purpose. P.W.19- Abdul Jaffar, the then Inspector of Police, Pappireddipatti Police Station took up the said case for investigation, visited the scene of occurrence and prepared Ex.P9-Observation Mahazar and Ex.P30- Rough sketch in the presence of P.W.12-Village Administrative Officer and one Krishnan, village menial. He also conducted inquest over the dead body and prepared Ex.P31-Inquest Report. Thereafter, the dead body was sent to the Government Hospital, Harur for autopsy along with Ex.P14-requisition letter for the said purpose through P.W.18-Manokaran, Grade-I police constable. P.W.15-Dr.Jayaraman, the Medical Officer attached to the Government Hospital, Harur, conducted autopsy and issued Ex.P15-Postmortem https://hcservices.ecourts.gov.in/hcservices/ certificate. As per the requisition of the Investigating Officer, viscera and the skin around the neck were sent to the Forensic Laboratory for medical analysis along with Ex.P31-letter of requisition of the learned Judicial Magistrate, Harur. After receiving the Medical Analysis Report and Bone Case Report under Exs.P16 and P17, P.W.19-Medical Officer gave his opinion that the deceased appeared to have died of asphyxia due to strangulation between 40 to 46 Hours prior to autopsy. iii) The dead body was buried after photographs of the same were taken in three angles for future identification as there was no one capable of identity the deceased. The said photographs and their negatives are marked as M.O.1 series and M.O.6 series respectively. Meanwhile, P.W.29, the then Sub-Inspector of Police, Arani Town Police Station, who was conducting the initial investigation in Cr.No.300/1997 (man missing case) received information from Pappireddipatti Police Station regarding the registration of the case in the said Police Station in Cr.No.466/1997 and upon such receipt of the information, he sent P.W.1-Muthulakshmi along with police to Pappireddipatti Police Station for the purpose of identification of the deceased. P.W.1, on such instructions from P.W.29, went to Pappireddipatti Police Station on 24.09.1997 along with her father and other relatives and identified the deceased to be her husband with the help of the photographs marked as M.O.1 series and the dress materials, namely M.O.2-Shirt, M.O.3-Banian and M.O.4-Jatti. On receipt of the information that the deceased was identified by P.W.1 to be her husband, P.W.29 placed the CD file for the perusal of P.W.27- Venkatachalam, the then Inspector of Police, Arani, who took up the further investigation of the cases. The case registered on the file of Pappireddipatti Police Station as Cr.No.466/1997 was also transferred along with the records to the file of Arani Town Police Station for being investigated along with Cr.No.300/1997 registered on the file of Arani Town Police Station. P.W.28-G.Gothandan, the then Inspector of Police, Arani Town Police Station clubbed the transferred case, namely Cr.No.466/1997 (Pappireddipatti Police Station) with Cr.No.300/1997 (Arani Town Police Station), altered the case from man missing to a case for offences punishable under Sections 379 and 302 IPC and submitted an alteration report under Ex.P24. During the course of investigation, based on the information received by him, PW 28 arrested all the three accused on 12.07.1998 at about 2.00 p.m near Kamaraj statue at Aranipalayam on the Arani-Vellore Road and recorded the confession statement of A1-Saravanan in the presence of witnesses Rajan and one Sridhar, the admissible portion of which has been marked as Ex.P5. Based on the said confession statement, P.W.28 recovered M.O.5-Ambassador car, in which the Regn. No.TSC 556 had been displayed in the number plate, under Ex.P6 - Mahazar pursuant to the identification of the said car by A1-Saravanan to be the car stolen from the deceased. As P.W.28 was thereafter transferred from Arani Town Police Station, P.W.29, who had by then been promoted as Inspector of Police came to be posted to Arani Town Police Station whereupon he again took up further investigation of the case. The car was also sent for analysis by a forensic expert, based on the requisition https://hcservices.ecourts.gov.in/hcservices/ of the Investigating Officer marked as Ex.P21. P.W.24, the Scientific Assistant Gr.I, Department of Forensic Sciences, Chennai, after examination of the car submitted a report containing the following findings:- We have examined the above detailed car and our conclusions are hereunder:- 1.The word "ANAND" was found underneath the sticker "Radiating Vigour..." pasted on the rear wind screen glass of the car. 3.The region of the car where the original chassis number is punched was found cut and removed and a metal piece bearing the present number "111-373968" was substituted by welding; Hence, the original chassis number of the car could not be found. 5.No number other than the present number "D 268920" is found on the engine identification plate rivetted to the engine. Please note that the engine identification plate rivetted to the engine was removed for examination and packed separately under this office seal. iv) The skin removed from the neck of the dead body was examined by P.W.16-Dr.Vallinayagam, Professor (Forensic Science Medicine), Government Mohan Kumaramangalam Medical College and Hospital, Salem in accordance with Ex.P16-requisition of the learned Judicial Magistrate, Harur. Based on the findings of the examination, PW16 issued a certificate under Ex.P17 certifying that the injuries found therein were antemortem. During the course of the investigation, the Investigating Officer found that all the three accused persons, with the common intention of committing theft and of comitting the murder of the deceased in order to commit theft of the car bearing Regn. No.TSL 9357, engaged the said car plied as a taxi from the taxi stand at Arani old Bus Stand in Arani town on 07.08.1997 at about 3.00 p.m under the pretext of going to Salem and other places for collection of business dues and thereby abducted the deceased Sivasamy in order to murder him; that in the course of the same transaction at about 11.00 p.m on the same day in between Kombur village and Velliappan temple on the Arani-Harur-Salem main road, the deceased Sivasamy was killed by A1-Saravanan by strangulation while A2-Selvam (appellant herein) and A3-Palani tightly held the hands and legs of the deceased respectively and facilitated the commission of murder by A.Saravanan; that after causing the death of the deceased Sivasamy, all the accused committed theft of the Ambassador car bearing Regn. No.TSL 9357; that all the three accused persons forged the chassis and engine numbers by cutting and removing them and substituting a number of another car which had been condemned and that they also replaced the original Registration Certificate of the said stolen car with the Registration Certificate of another car. On the https://hcservices.ecourts.gov.in/hcservices/ strength of the materials collected during the course of investigation, P.W.28, submitted a final report alleging commission of offences punishable under sections 364, 368 and 382 IPC by all the three accused persons, an offence punishable 302 IPC by A1- Saravanan and an offence punishable under Section 302 r/w 109, 114 and 34 IPC by A2, the appellant herein and A3-Palani. 3. The learned Judicial Magistrate, Arani took the final report on file as P.R.C.No.19/2000 and after following the procedure, committed the accused for trial to the Principal Sessions Judge, Thiruvannamalai. The same was taken on file as S.C.No.164/2001 in the Sessions division of Thiruvannamalai and made over to the Additional Sessions Judge cum Chief Judicial Magistrate, Thiruvannamalai by the Principal Sessions Judge, Thiruvannamalai for disposal according to law. 4.In the trial court, charges were framed against all the accused persons for offences punishable under Sections 364, 382, 302 and 468 IPC. The accused persons pleaded not guilty and wanted the case to be tried. In the trial that followed such a plea, the prosecution examined 30 witnesses as P.Ws.1 to 30, marked Ex.P1 to P35 and produced M.Os.1 to 7 on its side in order to prove the charges against the accused persons. After recording of the evidence for the prosecution was over, the accused persons were examined under Section 313(1)(b) regarding the incriminating materials found in the evidence adduced on the side of the prosecution. They denied such evidence to be false and once again reiterated their stand that they were not guilty of any offence. No witness was examined and no document was marked and no material object was produced on the side of the accused persons. 5. The learned trial judge heard the arguments advanced on either side, considered the evidence in the light of such arguments and upon such consideration, came to the conclusion that the accused 1 and 3 were not guilty of any of the offences with which they stood charged and hence acquitted them of all the charges by judgment dated 31.05.2002 The appellant herein (A2) was also not found guilty of the offences punishable under Sections 364 and 302 IPC. However, the trial court held him guilty of an offence punishable under Section 468 IPC and an offence punishable under Section 411 IPC (lesser offence than the offence under Section 382 IPC with which he stood charged), convicted him for the said offences and awarded sentences as indicated supra. 6. Aggrieved by and challenging the conviction recorded and the sentences imposed, the appellant (A2) has come forward with the present appeal under Section 374 Cr.P.C on various grounds set out in the appeal petition. 7. Mr.L.Mahendran, learned counsel for the appellant advancing arguments on behalf of the appellant contended that the judgment of the trial court was against law, weight of evidence and probabilities of the case; that the court below ought to have acquitted the appellant also holding the prosecution to have https://hcservices.ecourts.gov.in/hcservices/ failed to prove its case beyond reasonable doubt; that the court below having acquitted A1 and A3, committed a grave error in convicting the appellant based on the same evidence; that the court below having disbelieved the evidence of P.W.3 for holding the appellant not guilty of the offence punishable under Section 302 IPC, ought not to have convicted the appellant for offences under Sections 411 and 468 IPC; that the evidence of the prosecution regarding the substitution of the RC book for the car is found with lot of improbabilities and contradictions; that the evidence of P.Ws.9 and 22 are in the nature of depositions of accomplice and the acceptance of their evidence without any corroboration was bad in law; that the court below ought to have held that there was no corroboration for the evidence of P.Ws.9, 20, 21 and 22 and that the court below ought to have held that the appellant (A2) to be the bonafide purchaser of car from P.W.9 and acquitted him. 8. It is the further contention of the learned counsel for the appellant that the court below having held that none of the accused committed the offence of theft of the vehicle, erred in convicting the appellant for an offence under Section 411 IPC; that the conviction of the appellant without there being any specific charge of receiving stolen property under Section 411 is also against law; that the very approach made by the learned trial judge would suggest that the learned trial judge searched for points for recording a conviction at least on one or two of the charges alone even though the evidence adduced on the side of the prosecution was not enough to prove any one of the charges beyond reasonable doubt; that the finding of the court below holding the appellant (A2) guilty of the offences punishable under Sections 411 and 468 IPC, can even be termed perverse and that hence the conviction recorded and sentence imposed for offences under Sections 411 and 468 IPC should be set aside by this court in exercise of its appellate powers. 9. Per contra, Mr.R.Muniapparaj, learned Government Advocate (Crl.Side), representing the respondent, argued that the court below, on a proper appreciation of evidence, came to the correct conclusion that the appellant herein (A2) was guilty of offences punishable under Sections 411 and 468 IPC; that the said finding could not be said to be erroneous, much less perverse; that there was no scope for interference with the well considered judgment convicting the appellant and that hence the appeal should be dismissed as having no merit in it. 10. This court took into consideration the rival submissions made on either side and also perused the entire materials available on record. 11. The appellant herein, along with two other persons, was prosecuted before the trial court for alleged offences punishable under Sections 364, 382, 302 and 468 IPC. According to the prosecution theory, all the three accused, with a common intention of stealing the Ambassador car (taxi) bearing Regn. No.TSL 9357 of which the deceased Sivasamy was the driver, engaged the said taxi https://hcservices.ecourts.gov.in/hcservices/ at the taxi stand near old Bus Stand of Arani Town on 07.08.1997 at about 3.00 p.m on the pretext of going to Salem and other places for collecting business dues, travelled in the said taxi and on the way from Arani to Harur in between Kombur and Vellaiappan temple, all of them jointly murdered the said Sivasamy and thereafter committed theft of the above said car. 12. It is the further case of the prosecution that, after committing the offence of the murder and committing theft of the car, they removed the original engine number and chassis number and affixed the engine and chassis numbers of another car, which had been condemned, dismantled and sold as scraps and used the said car with the number plate displaying the registration number of the said dismantled car. After analysing the evidence, both oral and documentary, adduced on the side of the prosecution, the learned trial judge came to the conclusion that the prosecution theory of the accused persons including the appellant herein, abducting the deceased with the intention to kill him and commit theft of the car was not proved beyond reasonable doubt. The learned trial Judge also hold that the charges of murder and theft pursuant to the abduction were not proved to the hilt beyond reasonable doubt and hence held all the three accused persons including the appellant were not guilty of any one of the offences of abduction punishable under Section 364 and murder punishable under Section 302 IPC. As against the acquittal of the other two persons, namely A1 and A3 in respect of the offences with which they stood charged and as against the acquittal of the appellant herein (A2) in respect of the offences punishable under Sections 364 and 302 IPC, the State has not preferred any appeal. No revision has also been preferred. Therefore, the acquittal of the accused, including the appellant herein, in respect of the offences punishable under Sections 364 and 302 has become final. In the light of the same, the sustainability of the conviction recorded against the appellant for offences punishable under Sections 411 and 468 IPC and punishment imposed thereon has to be considered. 13.The offences for which the appellant (A2) was convicted are 1) dishonestly receiving stolen property punishable under Section 411 IPC and 2) forgery for the purpose of cheating punishable under Section 468 IPC. It should be kept in mind, while approaching the problem, that there was no separate charge framed by the trial court against the appellant herein for an offence punishable under Section 411 IPC. No alteration of the charge was made even before pronouncement of judgment. The appellant was prosecuted for having committed theft after making arrangement to cause the death of Sivasamy in order to commit the theft punishable under Section 382 IPC. Section 382 IPC reads as follows:- "382. Theft after preparation made for causing death, hurt or restraint in order to the committing of the theft.— Whoever commits theft, having made preparation for causing death, or hurt, or of restraint, or fear of death, or of hurt, or of restraint, to any person, in order to the committing https://hcservices.ecourts.gov.in/hcservices/ of such theft, or in order to the effecting of his escape after the committing of such theft, or in order to the retaining of property taken by such theft, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine." 14. The case of the prosecution is that all the three accused persons including the appellant herein jointly made preparations for causing the death of the driver of the Ambassador car (taxi) bearing Regn. No.TSL 9357 in order to commit of the theft of the said car and that is why all of them were prosecuted for the offence under Section 382 IPC. The theory of the prosecution that the accused persons, including the appellant herein, with the common intention of causing death of the taxi driver and committing theft of the taxi bearing Regn. No.TSL 9357, abducted him in the said car in the guise of going to Salem and other places for collecting business dues and that they killed the driver on their way to Harur from Arani and committed theft of the said car, has been disbelieved by the learned trial judge or at least held to be not proved beyond reasonable doubt by the prosecution. When the trial court held that the charge for an offence of theft after having made preparation for causing death etc., was not proved beyond reasonable doubt, as rightly pointed out by the learned counsel for the appellant, there is no scope for the trial court to convict the appellant for an altogether different offence, namely an offence punishable under Section 411 IPC without there being a separate and specific charge framed for such an offence. Apart from the fact that there was no charge framed for an offence punishable under Section 411 IPC and the appellant in the strict sense was not prosecuted for an offence of receiving stolen goods punishable under Section 411 IPC, there are other materials to show that the prosecution has not brought home the offence by sufficient evidence without there being any room for reasonable suspicion. 15.For sustaining a conviction for an offence under Section 411 IPC, the prosecution can very well rely on Section 114 illustration 'a' of the Evidence Act to raise a presumption that the goods alleged to be stolen found in possession of the accused, who fails to furnish any explanation for such possession, that he had received it or retained it dishonestly knowing or having reason to believe the same to be a stolen property. But there can be no presumption that the property itself is a stolen one. To warrant such a presumption and to sustain a conviction for an offence under Section 411 IPC, the prosecution must establish beyond reasonable doubt that the same is a stolen property. In this case, the car produced as M.O.5 is said to be the stolen property. According to the prosecution case, P.W.2-Varadhavelu was the owner of the said car and the same was stolen by all the three accused persons after committing murder of Sivasamy, driver of the said car which was used as a taxi. The theory of murder and theft by the accused persons was disbelieved by the court below. Therefore, the only question that arises for consideration shall be, "whether M.O.5-Car was that of P.W.2? whether the same was found in the possession of https://hcservices.ecourts.gov.in/hcservices/ the appellant (A2)? whether the appellant (A2) was not in a position to offer any explanation for such possession.? 16. First of all, M.O.5 should have been proved to be the car belonging to P.W.2-Varadhavelu to sustain the conviction of the appellant for having received it knowing or having reason to believe that the same was a stolen property. It is the case of the prosecution that the registration number of the car belonging to P.W.2 is TSL-9357 and that it was an Ambassador car used with 'T' board as taxi. At the time of alleged recovery of the car by the police it was not having the number plate displaying the above said registration number. On the