BAIL SLIP The Appellants/Accused Nos.3,5 and 6 namely 1.Amirthalingam, S/o.Ramasamy 2.Surendran, S/o.Raja, 3.A.Ganesan, S/o.Ambalam where directed to be released on bail as per the Order of this Court dated 31.03.2004 in Crl.M.P.Nos.1260/2004, 1416/04 and 3307/04 in Crl.A.Nos,163/04, 177/04 and 407/04 respectively on the file of this Court. The Appellant/Accused No.2 namely; Shathurudeen S/o.Mohamed Ismail was directed to be released on bail as per the order of this Court dated 15.06.2004 in Crl.M.P.Nos.5749 of 2004 in Crl.A.No.656 of 2004 on the file of this Court. The Appellants/Accused Nos.A4, A7 and A8 namely; 1.Venthan, s/o.Rajendran 2.Siva Perumal @ Perumal S/o.Marudha Muthu Devar. 3.Sheik Hussain,S/o. Masthan were directed to be released on bail as per the order of this Court dated 23.04.2004 in Crl.M.P.Nos.4069 of 2004 and 4070 of 2004 in Crl.A.Nos.522 of 2004 and 524 of 2004 of 2004 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09..04..2011 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU Criminal Appeal Nos.656, 163, 522, 177, 407 and 524 of 2004 Shathurudeen [A2] ... Appellant in Crl.A.No.656 of 2004 Amirthalingam [A3] ... Appellant in Crl.A.No.163 of 2004 Venthan [A4] ... Appellant in Crl.A.No.522 of 2004 Surendran [A5] ... Appellant in Crl.A.No.177 of 2004 A.Ganesan [A6] ... Appellant in Crl.A.No.407 of 2004 1.Siva Perumal @ Perumal [A7] 2.Sheik Hussain [A8] ... Appellants in Crl.A.No.524 of 2004 -Versus- State by The Inspector of Police, Madathukulam Circle, Komaralingam Police Station, Coimbatore District. [Crime No.147 of 1996] ... Respondent in all Criminal Appeals https://hcservices.ecourts.gov.in/hcservices/ Memorandum of Grounds of Criminal Appeals under Section 374 (2) of the Criminal Procedure Code against the judgement dated 27.01.2004 made in S.C.No.61 of 1997 on the file of the learned Additional District and Sessions Judge, Fast Track Court No.V, Coimbatore at Tirupur. For Appellant in Crl.A.No.656 of 2004 [A2] : Mr.R.Karthikeyan [Legal Aid Counsel] For Appellant in Crl.A.No.163 of 2004 [A3] : Mr.K.Ethirajalu [Legal Aid Counsel] For Appellant in Crl.A.No.522 of 2004 [A4] : Mr.Philip Ravindran Jesudoss For Appellant in Crl.A.No.177 of 2004 [A5] : Mr.A.K.S.Thahir for Mr.A.S.Bilal For Appellant in Crl.A.No.407 of 2004 [A6] : Ms.K.Sumathi For 1st Appellant in Crl.A.No.524 of 2004 [A7] : Mr.R.Karthikeyan [Legal Aid Counsel] For 2nd Appellant in Crl.A.No.524 of 2004 [A8] : Mr.M.G.L.Sankaran For Respondent in all Criminal Appeals : Mr.P.Kumaresan, Public Prosecutor, Assisted by Mr.V.Rajagopal COMMON JUDGEMENT The appellants are A2 to A8 in S.C.No.61 of 1997 on the file of the learned Additional District and Sessions Judge, Fast Track Court No.V, Coimbatore at Tiruppur. They stand convicted for offences under Sections 120-B, 147, 395 and 450 of IPC. They have been sentenced to undergo R.I. 8 years and to pay a fine of Rs.1000/- for offence under Section 120-B of IPC; to undergo R.I. for 6 months for offence under Section 147 of IPC; to undergo R.I. for 8 years and to pay a fine of Rs.1000/- for offence under Section 395 of IPC; and to undergo R.I. for 8 years and to pay a fine of Rs.1000/- for offence under Section 450 of IPC. No default sentence imposed. Challenging the said conviction and sentence, A2 to A8 in S.C.No.61 of 1997 have come forward with these criminal appeals. 2. Originally, the appellants were accused in PRC No.7 of 1997. Totally there were 11 accused in the said case. But, one of the accused by name Thangapandian @ Sankaranarayanan was absconding and therefore, the learned Magistrate split up the case as against him and committed the case against the rest of the 10 accused. On committal the case against the rest of the 10 accused including these appellants was made over to the Assistant Sessions Judge, Udumalpet, who framed charges against all the 10 accused. The case was thereafter transferred to the Additional District and Sessions Judge, Fast Track Court No.V, Coimbatore at Tirupur. After framing of charges, two accused by name Murugan and Ravi in the said case were absconding. Therefore, the case against the said https://hcservices.ecourts.gov.in/hcservices/ two accused was split up. The learned Additional Sessions Judge , therefore, rearranged the rank of the remaining 8 accused and proceeded with the trial in S.C.NO.61 of 1997. Accordingly, the trial commenced on 25.09.2003. 3. In the mean while, the absconding accused by name Thangapandian @ Sankaranarayanan was secured and the case against him was also committed by the learned Magistrate and the same was in turn made over to the Additional Sessions Judge, FTC No.V, Coimbatore at Tirupur in S.C.No.11 of 2003. The learned Additional Sessions Judge, accordingly, framed charges. Since the accused denied the charges, the learned Additional Sessions Judge proceeded with the trial. The examination of witnesses in this case commenced on 20.11.2003 in S.C.No.11 of 2003. 4. On completing the trial in both the cases, the learned Judge delivered a common judgement on 27.01.2004 convicting the appellants [A2 to A8 in S.C.No.61 of 1997] as well as the appellant in Crl.A.No.264 of 2004 [who is the sole accused in S.C.No.11 of 2003]. Challenging the conviction and sentence imposed against the accused in S.C.No.61 of 1997, they have preferred the present appeals in Crl.A.Nos.656, 163, 522, 177, 407 and 524 of 2004. As against the conviction and sentence imposed against the accused in S.C.No.11 of 2003, he has preferred Crl.A.No.264 of 2004. 5. Since all these appeals have arisen out of a common judgement, I had an occasion to peruse the records and evidence, both oral and documentary, in both the cases. A perusal of the records in S.C.No.61 of 1997 reveal that there were a total number of 24 witnesses examined by the prosecution and 34 documents exhibited, besides 4 material objects. On the side of the defence, there were 2 witnesses examined and 2 documents exhibited. Insofar as the case in S.C.No.11 of 2003 is concerned, there were only 18 witnesses examined and 7 documents exhibited. No one was examined on the side of the defence and no document was exhibited. NO material object was marked. 6. Some of the prosecution witnesses in S.C.No.61 of 1997 by name Kannadi Mani @ Ramasamy [P.W.6], Dhanam [P.W.7], Thangaraj [P.W.8], Palraj [P.W.12], Kayalvizhi [the learned Judicial Magistrate] who conducted test identification parade [P.W.13], Subramaniam, S/o.Ramalingam [P.W.11], Sakthivel [P.W.16], and Chandrasekaran [P.W.17] were not examined during trial in S.C.No.11 of 2003. As we have noticed, several incriminating documents including the complaint and the FIR exhibited in S.C.No.61 of 1997 were not exhibited in S.C.No.11 of 2003. But, curiously, the learned Additional Sessions Judge has considered the evidences, both oral and documentary, let in , in both cases including the defence witnesses cumulatively to deliver a common judgement holding the accused involved in both the cases guilty of charges framed against them. It is shocking to note that the evidences which were let in in one case were used against the accused in the other case to hold him/them guilty. It is the fundamental https://hcservices.ecourts.gov.in/hcservices/ principle of criminal law that the evidence recorded behind the back of an accused that too, in a different case is no evidence against him in the case in which he happens to be an accused. It is also yet another fundamental principle of criminal law that even in respect of evidence let in in a particular case , unless the same is put to the accused under Section 313 of Cr.P.C. the same cannot be used against him. But, it is highly unfortunate that the oral as well as the documentary evidences let in in one case have been used in the other case. It is needless to point out that the appellant/accused in S.C.NO.11 of 2003 had no occasion at all to know the oral evidence deposed to by the witnesses and the documents exhibited in the other case. Similarly, the accused in S.C.No.61 of 1997 had no occasion to know the evidence, both oral and documentary, let in in S.C.NO.11 of 2003. The accused in one case had, therefore, no occasion to cross examine or challenge the evidence let in in the other case and vice versa. Thus, it is very obvious that the judgement of the trial court convicting the accused both in S.C.No.61 of 1997 and S.C.No.11 of 2003 suffers from serious illegality which vitiates the judgements, but not the entire trials. In such circumstances, this court may have to set aside the judgements and remit both the cases to the trial court to deliver judgements afresh separately in both the cases on considering the evidence let in in the respective case. But, having regard to the time lapse as the occurrence was in the year 1996, I am of the considered view that the interest of justice would be best served , if I examine the evidences let in in each case separately to find out whether the conviction imposed on the respective accused could be sustained or not. In such view of the matter, I do not propose to remit both the cases for delivering judgement afresh in each case separately. Instead, I propose to deal with the appeals relating to S.C.No.61 of 1997 and the appeal relating to S.C.No.11 of 1997 separately strictly confining to the evidence let in in the respective case. Accordingly, I propose to deliver a judgement in Criminal Appeal No.264 of 2004 separately. This judgement governs Crl. A.Nos.656, 163, 522, 177, 407 and 524 of 2004 arising out of S.C.No.61 of 1997. 7. The case of the prosecution in brief is as follows:- P.W.1 was the President of Kumaralingam Village Panchayat in Udumalpet Taluk. He was residing at Samurayanpatti Village. He had two brothers by name Jothikannan and Senthilmurugan. All the three were living as a joint family. P.W.2 is his brother's son. P.W.4 is his brother's daughter. P.W.3 is the husband of P.W.4. P.W.5 is a housemaid at the house of P.W.1. P.W.6 is his neighbour. On 28.11.1996, P.Ws.1 to 6 were in the house of P.W.1 at Samurayanpatti Village. By about 8.00 a.m. a Mahindra Maxi Cab Van, green in colour, bearing Regn. No.TN 22 X 2889 came to the house of P.W.1 and the same was stopped in front of P.W.1's house just out side the compound wall. Nine persons got down from the van and came to the premises of P.W.1. All were dressed neatly and they gave a look of high officials. Three of them did not enter into the house and they waited on the varanda. Six of them entered into the house. They told P.W.1 and the other inmates that they were officials from income tax department and that they had come to https://hcservices.ecourts.gov.in/hcservices/ conduct income tax raid at the house of P.W.1. They had shown certain forms normally used by the office of the income tax department and the letter pads. By the appearance of the accused and from the way in which they talked and the documents namely forms from the income tax department which they had shown, P.Ws.1 to 6 believed that they were really from income tax department. Therefore, they allowed them to search the entire house. Three persons who were waiting out side did not allow anybody to enter into the house. Similarly, the six persons who entered into the house; who made house search did not allow the inmates to go out. After a thorough search, they found jewels weighing 325 sovereigns in the iron safe of P.W.1. They also found a cash of Rs.95,000/- in the steel bureau. They took them and brought the same to the drawing hall. One of the persons displayed the jewels and the cash on the table in the drawing hall. Then, he entered the details of the jewels and the cash in a form. They gave a copy of the form to P.W.1 as though it was an official document for seizure of the jewels and cash from the house of P.W.1 and also the letter pad [Exs.P.2 and P.1]. Then, they put all the jewels and cash in a suitcase and brought the van to the portico. They told P.W.1 to come to the office of the income tax department in Chennai on 05.12.1996 for enquiry. They got into the van and went away with the looted jewels and cash. Few minutes thereafter, P.W.1 contacted his auditor Mr.Archunaraj [P.W.14] at Coimbatore over telephone. When P.W.1 told about the raid conducted , P.W.14 wanted P.W.1 to rush immediately to his office at Coimbatore along with the documents handed over by those persons during the occurrence. Immediately, P.W.1 and P.W.2 rushed to Coimbatore and met P.W.14. On seeing the letter pads and the forms of the income tax department, P.W.14 found that the said forms were not meant for income tax raid. Therefore, he suspected foul play and so, he immediately contacted the income tax officials at Coimbatore as well as at Chennai and P.W.14 was in turn informed that income tax officials did not make any such raid at the house of P.W.1. From this, P.W.1, P.W.2 and P.W.14 realised that the jewels and cash belonging to P.W.1 had been looted by unscrupulous elements. P.W.14 advised P.W.1 to go to police station. P.Ws.1 and 2 returned to Kumaralingam Town and preferred a complaint at 4.00 p.m. on 28.11.1996 at Kumaralingam Police Station. Ex.P.3 is the complaint. P.W.20, the then Sub Inspector of Police attached to Kumaralingam Police Station registered a case in Crime No.147 of 1996 for offences under Sections 419 and 420 of IPC. Ex.P.32 is the FIR. He forwarded the FIR and the complaint to the court immediately. He also forwarded Exs.P.1 and P.2 which were given by the culprits to P.W.1 and produced by P.W.1 along with Ex.P.3 complaint. Then, P.W.20 handed over the case for investigation to P.W.21. P.W.21 was the then Inspector of Police. On 28.11.1996, he took up the case for further investigation, proceeded to the place of occurrence. At 5.30 p.m. he visited the place of occurrence and prepared an observation mahazar [Ex.P.7] in the presence of P.W.11 and another witness. He also prepared a rough sketch [Ex.P.6] showing the place of occurrence. 8. At the request of P.W.21, P.W.19, the Finger Print https://hcservices.ecourts.gov.in/hcservices/ Expert attached to Coimbatore Finger Prints Bureau visited the scene of occurrence. When he examined a room in the ground floor of the house of P.W.1, he found five finger prints i.e. two finger prints on the steel bureau and three finger prints in the window in the first floor of the house. In the bathroom, precisely on the porcelain flush tank cover, he noticed yet another finger print. On the steel bureau which was kept in yet another room in the ground floor, he noticed two finger prints. Thus, totally, he found eight finger prints which he marked as S1 to S8. He took photographs of the said finger prints in scientific manner. Out of the eight chance finger prints, few chance prints did not tally with the finger prints of the inmates and thus they were the finger prints of strangers. In this regard, on 30.11.1996, he submitted his report under Ex.P.31 to P.W.23. P.W.21 examined P.Ws.1 to 6, P.W.11 and few more witnesses and recorded their statements. On 29.11.1996, he examined few more witnesses and recorded their statements. On 30.11.1996, he handed over the case for further investigation to P.W.23. 9. Coming back to the investigation, P.W.23 took up the case for further investigation on 30.11.1996. On some reliable information, he proceeded to Chennai and at 8.00 p.m. at D.No.2/1 Thanikachalam Mudali Street, Peruambur, Chennai, he arrested Accused-Murugan [absconding accused]. On such arrest, he gave a voluntary confession in the presence of P.W.16 and another witness and the same was reduced into writing. In the said statement, he disclosed that he had hidden jewels and cash of Rs.7500/- in bureau at his house. He further disclosed that he would identify the accused Amanullah [A1 in S.C.No.61 of 1997]. Accordingly, at 9.30 p.m. on the same day, he took the police and the witnesses to his house and produced Items 3 to 28 , as many as 25 items of gold jewels [M.O.2] and cash of Rs.7,500/- [M.O.3]. P.W.23 recovered the same in the presence of P.W.16 and another witness under cover of Ex.P.9 mahazar. Then, he took P.W.23 to Madurai Sami Mada Street and identified the accused Amanullah [A1]. P.W.23 then arrested accused Amanullah [A1] at 10.45 p.m. Accused Amanullah also gave confession voluntarily and the same was reduced into writing in the presence of the same witnesses. In the said statement, he disclosed that he would produce the jewels and cash of Rs.3250/-. Accordingly, from his house he produced 5 items of gold jewels [items 29 to 33A in M.O.2]. P.W.23 recovered the same in the presence of P.W.16 and another witness under cover of Ex.P.11 mahazar. Then P.W.23 arrested Shathurudeen [A2] at the house of accused Amanullah in the presence of P.W.16 and another witness at about 12.15 a.m. on 01.12.1996. A2 gave a voluntary confession and the same was reduced into writing. In the said statement, he disclosed that he would produce the jewels and cash. Accordingly, from his house at Madurai Sami Mada Theru, Sembiam, Chennai, he produced 4 items of gold jewels and cash of Rs.7900/-. They were all recovered under Ex.P.13 mahazar. Jewels are Items 34 to 37 [M.O.2] and cash of Rs,7,900/[ [40 hundred rupees and 78 fifty rupees currencies] is Item No.38 [M.O.3]. Then, on information, P.W.23 proceeded to house at D.No.741/5, Arulappa Street, G.K.M.Colony, Chennai, where P.W.23 arrested accused Amirthalingam https://hcservices.ecourts.gov.in/hcservices/ [A3] at 2.15 p.m. He also gave a voluntary confession and the same was reduced into writing. In the said statement, he disclosed that he would produce the jewels and cash. Accordingly, he produced 7 items of gold jewels and cash of Rs.7,050/- P.W.23 recovered the same in the presence of P.W.16 and another witness under cover of Ex.P.15 mahazar. The jewels recovered from A3 are Items 39 to 45 [M.O.2] and cash of Rs.7,050/- [15 hundred rupees and 111 fifty rupees currencies] recovered from A3 is Item No.46 [M.O.3]. Then, P.W.23 arrested the accused – Ravi [absconding] from G.A. Road at 5.15 a.m. on 01.12.1996. On such arrest, accused Ravi also gave voluntary confession. P.W.23 recorded the same in the presence of P.W.16 and another in which the accused had disclosed that he would produce the jewels and cash. Accordingly, from house bearing D.No.178-A, G.A.Road, Tondaiyarpet, Chennai, he produced 9 items of gold jewels and cash of Rs.7,300/- At 5.15 p.m. P.W.23 recovered the same in the presence of P.W.16 and another witness. The jewels so recovered from Accused Ravi are items 47 to 55 [M.O.2] and cash [11 five hundred rupees , 14 hundred rupees and 8 fifty rupees currencies] is item No.56 [M.O.3]. Thereafter, P.W.23 proceeded to the house at D.No.741/5, Cross Street, Washermenpet, Chennai and arrested accused Vendan [A4] at 6.15 a.m. on such arrest, A4 also gave voluntary confession in which he disclosed that he would produce the jewels and cash. P.W.23 reduced the same into writing in the presence of P.W.16 and another witness. Accordingly, A4 led the police to the above address and produced 12 items of gold jewels and cash of Rs.6000/- . P.W.23 recovered the same under cover of Ex.P.19 mahazar in the presence of P.W.16 and another witness. The gold jewels are Items 57 to 68 [M.O.2] and cash of Rs.6000/- [ 54 hundred rupees and 12 fifty rupees currencies] is item No.69 [M.O.3]. Then, at 8.00 a.m. he proceeded to the back side of Kilpauk Police Station and arrested the accused Surendran [A5]. On such arrest, A5 gave a voluntary confession in the presence of P.W.16 and another witness and the same was reduced into writing. In the said statement, A5 disclosed that he would produce 4 items of gold jewels and cash of Rs.7500/- which were hidden in the house at D.No.576, Sakthi Street, Chennai. Accordingly, he produced 4 items of gold jewels and cash of Rs.7500/- in the presence of P.W.16 and another witness. P.W.23 recovered the same under cover of Ex.P21 mahazar. The gold jewels are Items 70 to 73 [M.O.2] and cash of Rs.7500/- [15 hundred rupees currencies] is item 73A [M.O.3]. Then taking all the accused and the seized articles, he returned to Kumaralingam Police Station. On 02.12.1996 at about 3.00 a.m. accused Ganesan [A6] voluntarily appeared before him at the police station. A6 also gave a voluntary confession. P.W.23 reduced the same into writing. In the said statement, A6 disclosed that he would produce the van bearing Regn. TN 22 X 2989. He further disclosed that in the van he had earlier affixed a sticker as if the registration number of the vehicle was TN 22 X 2889. [This portion of the confession, though not admissible, the trial court has erroneously admitted the same.]. On the basis of the said disclosure statement, A6 produced the van bearing Regn. Tn 22 X 2989 and trip sheet book for the said vehicle and trip sheet cum bill No.206. P.W.23 recovered the same in the presence of P.W.16 and another witness under cover of Ex.P.23 https://hcservices.ecourts.gov.in/hcservices/ mahazar. Trip Sheet is Ex.P.33. Bill is Ex.P.34. The above said van is M.O.1. P.W.23 thereafter examined P.W.16 and one Sundararaj who were witnesses for the arrest of the accused and for the recovery of material objects and recorded their statements. P.W.23, thereafter, forwarded the accused for judicial remand and the properties to the court. 10. Thereafter, P.W.24, the then Inspector of Police took up further investigation. On 03.12.1996, on information he proceeded to Sethur, Rajapalayam Taluk and from the house bearing D.No.48, Pillaimar Street, Sethur, he arrested accused Perumal @ Sivaperumal [A7]. On such arrest, A7 gave a voluntary confession in the presence of P.W.17 and one Radhakrishnan. P.W.24 reduced the same into writing. In the said statement, A7 disclosed that he would produce the jewels and cash. Accordingly, at 8.00 a.m. A7 produced a Tamil Nadu Police Sannad [Form No.47 GBP – Ms.112 – POL.B.36.9006-82 order No.320 Certificate issued under Act XXIV of 1859]. Then, he produced cash to the tune of Rs.5150/- from his house. P.W.24 recovered the same under Ex.P.26 mahazar in the presence of P.W.17 and another witness. The Sannath Form recovered from A7 is Ex.P.25 which is a certificate issued on 17.09.1987 certifying that A7 had been appointed as a member of District Police Force and he is invested with the powers, functions and privileges of a police officer. The said certificate has been issued by the Superintendent of Police, Railways Chennai. The cash of Rs.5,150/- [25 hundred rupees and 53 fifty rupees currencies] recovered from A7 is item 77 [M.O.3]. Then, in pursuance of his confession, A7 took the police to the house of his brother in law by name Kadarkarai from whom A7 got 6 items of gold jewels, cash of Rs.30,000/- and a black colour rexine bag and produced the same before P.W.24. P.W.24 in turn recovered them under Ex.P.28 mahazar in the presence of P.W.17 and another witness. The jewels recovered from A.7 are items 78 to 83 [M.O.2], cash of Rs.30,000/- [60 five hundred rupees currencies] is item No.84 [M.O.3] and the rexine bag is M.O.4. Then, A7 took the police and the witnesses to the shop of Palraj [P.W.12] from whom at 9.30 a.m he got 9 items of gold jewels which had been sold by A7 to P.W.12. P.W.24 recovered the same under cover of Ex.P.27 mahazar. Items 86 to 94 are the gold jewels so recovered. P.W.24 thereafter, examined the attesting witnesses P.W.12 and one Radhakrishnan and recorded their statements. Then, P.W.24 returned to the police station along with A7 and the properties seized and sent the accused to court for judicial remand. He also forwarded materials objects to the court under Form-95. 11. In continuation of his investigation, on 06.12.1996, on reliable information, P.W.24 proceeded to Thiruvarur Aathukkulam South Bank and at Door No.56, Pillayar Koil Street, where he arrested the accused Sheik Hussain [A8] in the presence of P.W.18 and another witness. On such