IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.10.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH CRIMINAL APPEAL NO.376 OF 2009 Manikandan ..Appellant/Accused Vs. State rep. by Inspector of Police, Peruma Nallur Police Station Coimbatore District. ..Respondent/Complainant This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Additional District and Sessions Judge, Fast Track Court No.V, Coimbatore at Tiruppur made in S.C.No.145 of 2008 dated 11.06.2009. For Appellant : Mr.M.Vijaya Kumaran For Respondent : Mr.Babu Muthu Meeran, APP - - - - JUDGMENT (The judgment of the Court was made by V.PERIYA KARUPPIAH, J.) This appeal is directed against the judgment of conviction passed against the first accused A1 by the learned Additional District and Sessions Judge, Fast Track Court No V, Coimbatore at Tiruppur in S.C.No.145/2008 convicting the appellant/A1 u/s. 120 (B), 302 ,394 r/w. 397 I.P.C along with the second accused A2. 2. The facts of the case which are necessary for the purpose of disposal of the appeal be as follows: (a) A1 and A2 entered into a conspiracy to commit theft of jewels in Sivagiri jewellery shop belonging to the deceased Dheena Thayala Pandurangan established at M.L.R. Complex, Moomoorthy Nagar and also caused the death of deceased owner and in execution of the said criminal conspiracy A1 and A2 went to the jewellery shop at about 11 a.m on 23.12.2005, and placed orders for the purchase of a baby ring and thereafter on 24.12.2005, A1 and A2 went to the shop at https://hcservices.ecourts.gov.in/hcservices/ about 09.30 a.m. A1 was sitting in front of the attendant of the shop and A2 followed the owner (the deceased person) into the adjacent room of the jewellery shop and attacked the deceased person with a deadly weapon knife with intend to cause his death and to commit theft of the jewels in the shop and thereafter A1 and A2 committed the theft of jewels in the shop and rendered themselves liable to be punished u/s.120 (B), 302 and 394 r/w.397 I.P.C. (b) The case was investigated on the complaint given by the attendant of the shop and after the investigation final report was filed against the accused A1 and A2 and the case was taken of filed by the learned Judicial Magistrate No.II, Tiruppur and the same was committed to Sessions court and the Sessions court had made over the said case in S.C.No.145/2008 to Fast Track Court No.IV Tiruppur and after framing charges against the accused A1 and A2, the said court had proceeded to record evidence on the side of prosecution. 3. The case of the prosecution as spoken by the witnesses would be as follows: (a) P.W.1 had joined duty in the jewellery shop belonging to the P.W.2 and the deceased Dheena Thayala Pandurangan on 23.12.2005 at about 11.00 a.m and on that day two persons i.e, A1 and A2 came to the shop and placed orders for the purchase of a baby ring and paid an advance of Rs.100/- and they promised to come on the next day for taking delivery of the said ring. Accordingly on 24.12.2005 at about 09.00 a.m, P.W.1 the attendant of the shop was present and the deceased came and opened the shop and the said two persons (A1 and A2) also came in time and one of them (A1) was sitting in front of the attendant P.W.1 and the deceased Dheena Thayalan Pandurangan had gone inside the adjoining room to take the ring ordered by them for delivery and the other person (A2) followed the deceased into the said room and the said deceased and the other person did not return for 10 minutes. P.W.1 was about to enter the room but the person who was sitting in front of P.W.1 threatened her by showing a knife in his hand and she got frightened over the same she did not move and after ten minutes A1 asked her to get inside the room and on entering into the room the attendant could see the deceased lying dead with cut injuries on his body. The other person armed with knife took the jewels in the room and placed in his bag. Both the assailants threatened P.W.1 and went away after shutting the door. She (P.W.1) came out and saw the assailants going in a motor cycle towards Tiruppur. The said occurrence was informed by the attendant, P.W.1, to the neighbour a two wheeler workshop owner Mr.Vikram – (P.W.5) and someone in the crowd gathered, informed the Permanallur police over phone about the occurrence. The Sub Inspector of Police rushed to the spot and recorded the statement of the attendant P.W.1 at 10.30 a.m on that day. (b) Thereafter the case was registered in Cr.No.583/2005 u/s. 302 I.P.C. and was taken for investigation. The Investigating Officer https://hcservices.ecourts.gov.in/hcservices/ - P.W.20 visited the scene of occurrence at about 12.15 p.m and in the presence of witnesses prepared Observation Mahazar in Ex.P.2 and Rough Sketch Ex.P.19. He also seized the jewellery order note book Ex.P.3 and 3 broken pieces of brass lamp M.O.12 series and M.O.13 series blood stained earth and blood swab from iron bureau M.O.15 blood stain from western side wall of the room. M.O.16- Human hair with blood swab from bottom portion of lamp and M.O.17 a match box by preparing a Mahazar in Ex.P.4. The inquest was conducted by the Investigating Officer on that day at about 01.15 p.m and the inquest report Ex.P.20 was prepared immediately. At the request of the Investigating Officer P.W.20 the scientific wing of the Coimbatore District Police, came to the spot along with P.W.14 attached with a Dog squad came to the spot for the purpose of locating the culprit, but the Dog did not catch anyone. After the completion of the inquest the body of the deceased was sent for autopsy to Government hospital, Tiruppur with a requisition through the Head Constable of Tiruppur. P.W.7- Doctor at about 04.40 p.m on that day had found about 12 injuries on the body of the deceased. The Doctor has also given the opinion that the deceased person would have died to multiple injuries caused to him. Wearing apparels worn by the deceased (M.O.20 to M.O.25) were collected by the Investigating Officer after the completion of the autopsy under a special report Ex.P.18. The material objects were also sent for chemical analysis to the Forensic science department. (c) Subsequently the Investigating Officer P.W.21 who succeeded P.W.20 in office, took up further investigation. On 05.12.2007, at 05.00 p.m when A1 was moving in a suspicious manner, when he was approached and enquired by Investigating Officer him who had not given specific answers for the query made by P.W.21 and when he was enquired he revealed his name and gave contradictory statements. P.W.21 recorded the confession statement in the presence of the P.W.9-V.A.O and recorded the confession statement of one Shanmughasundaram and the admissible portion was Ex.P.9 and he also identified A2 near Sathya Roadways lorry office. A2 also confessed in respect of the commission of crime with A1 and the admissible portion of his confession statement was Ex.P.10. As per their confession the Investigating Officer took them to Mahalakshmi Finance and identified the items of jewels pledged by them, which were recovered from P.W.13. and such whom six items of jewels were recovered under the Mahazar Ex.P.11. M.Os.1 ,2 3 and 5 were the golden ornaments which were seized through the confession given by A1 and A2. Similarly, Yahama motorcycle bearing Registration No. TN 30 X 5495 was recovered from P.W.12 one Sivasubramaniam under the Mahazar Ex.P.13 through the identification made by A1. The said motor cycle belonged to P.W.12 was used by A1 and A2 to come to the place of occurrence on 24.12.2005 and to escape from the place after committing the crime. A1 also identified one Chandrasekar at Anguchatra Vadipatti from whom gold chain M.O.8 was recovered on 05.12.2007 at 08.00 a.m under the cover of Mahazar Ex.P.12. He also took the Investigating Officer to https://hcservices.ecourts.gov.in/hcservices/ K.R.C. Jewelleries at Madurai and on the confession made by A2, P.W.11 who is the son of the owner of the said shop handed over M.O.9 Gold chain, four pair of ear studs – M.O.10 series and M.O.4 series 4 ear drops. Similarly A2 took to Lalitha jewellery at South Avani moola street, Madurai and on his identification recovered ear drops in M.O.10 series were recovered and M.O.11 gold necklace was recovered from P.W.10 through the Mahazar Ex.P.15. Thereafter A2 had taken the police to thorny bushes on the back side of Government hospital and took M.O.19 knife which was also seized through Mahazar Ex.P.16. (d) After recovery was over A1 and A2 were sent to Judicial Magistrate No.II, Tiruppur for remand. P.W.16 goldsmith who made jewels for the P.W.2 jewellery shop put initials as 'MC' and 'ML' on the ornaments where as another goldsmith P.W.17 used to put 'SVR', 'SSS' and 'SC' in the ornaments prepared by him for P.W.2. On request they visited Perumanallur police station and verified the jewelleries and they have identified M.O.10 series and M.O.11 series as 'ML and 'MC' were inscribed whereas M.O.1 series, M.O.8 and M.O.9 are the jewelleries inscribed as 'SVR', 'SC' and 'SSS'. Thereafter the Investigating Officer had also applied to the Chief Judicial Magistrate, Coimbatore for nominating a Judicial Magistrate for conducting the Test Identification Parade on the accused and accordingly Test Identification Parade was conducted on 20.12.2007. P.W.1 appeared on summons and identified A1 an A2 thrice when they stood among 18 persons having similar appearance. Thereafter, the Investigating Officer completed the recording of evidence and prepared the charges sheet against the accused A1 and A2. The Investigating Officer has accordingly filed the charge sheet against the accused. 4.The prosecution has examined P.W.1 to P.W.21 and produced Ex.P.1 to Ex.P.23 and M.O.1 to M.O.23 in support of the case of the prosecution. Lower court had examined the accused u/s. 313 Cr.P.C in respect of evidence adduced by the prosecution incriminating him towards the guilt and the accused have bluntly denied the evidence as false. Thereafter, since no defence witness was examined the lower court had considered the arguments and the evidence adduced before it, and came to a conclusion that the prosecution had proved the charges framed against A1 and A2 beyond all reasonable doubts and it inflicted punishment u/s. 120 (B), 320, 394 r/w. 397 I.P.C as stated supra. 5. Challenging the said judgment of conviction the present appeal has been preferred by the first accused (A1) alone. 6. The learned counsel for the appellant/A1 Mr.M.Vijayakumaran, submit in his argument that the lower court did not promptly appraise the evidence adduced by the prosecution and had simply accepted the evidence, which could not be relied upon for ending conviction https://hcservices.ecourts.gov.in/hcservices/ against the appellant A1. The case of prosecution that two persons came to the shop belonging to the deceased person would not in anyway draw any presumption against the appellant, committed the offence. He would further submit that the alleged persons who were unknown at the scene of occurrence to P.W.1, an employee of jewellery shop was highly artificial ad unbelievable as she was said to have been appointed only on the previous day to the day of occurrence. He would again submit in his argument that the police did not collect any documentary evidence to show that P.W.1 was the employee of the deceased person's shop. The evidence of P.W.1 cannot also be relied upon as nobody has been examined from the adjacent shop to corroborate her evidence nor to speak about the alleged occurrence which is said to have been taken place. The evidence of P.W.1 even if true was contradictory, since she was alleging that the accused persons came for placing an order for baby chain instead it has been put forth by the prosecution that they ordered for baby ring and paid a sum of Rs.100/- as advance. If her evidence is true the document Ex.P.3 produced by prosecution to show that the baby ring was ordered for a total value of Rs.1,815/- and the advance of Rs.100/- paid would be a false one. He would further submit in his argument that the investigation in respect of mobile no.9894721330 mentioned in the said order book Ex.P3 was not further investigated. The evidence of the mechanic in the nearby shop should not have been believed for a fact that he has not witnessed the alleged occurrence. His evidence would simply show that a girl was found crying but he did not point out specifically at P.W.1 that she was crying. He would again submit in his argument that the alleged recovery made by Investigating Officer from A1 and A2 was two years after the date of registering of the case and that itself would go a long way to show that the accused were falsely prosecuted by the respondent. He would again submit that the discrepancy in the alleged stolen jewels stated to be 10 sovereigns of gold in the complaint and recovery of 62 sovereigns of gold through various persons on the alleged identification made by A1 and A2 should not be relied for basing the conviction. Moreover the evidence of Investigating Officer would go to show that the finger prints were lifted at the place of occurrence. However the said finger prints were not brought before the court as evidence. He would again submit that the alleged Test Identification Parade conducted by P.W.6 could not be a valid one since A1 and A2 were kept in the police station for 21 days and they were shown to P.W.1 with their photographs and therefore, identification made by P.W.1 against A1 and A2 could not be relied upon. The recovery of jewels from the receiver should not be relied upon by the lower court, since the receivers did not support the case of prosecution when they were examined as witnesses. He would further submit in his argument that case of prosecution was tailor made as far as P.W.1 did not speak about any more injuries expect the injury on the neck whereas the injury has been caused through Kuthuvilakku and also number of injuries were found on the body of deceased person. He would also submit that the opinion expressed by the Post Mortem Doctor that the https://hcservices.ecourts.gov.in/hcservices/ death would have occurred at 07.30 a.m would also make the case of the prosecution a suspicion one and the appellant would not have committed such offence along with A2. He would also submit that the case of the prosecution that number of injuries as mentioned in the Post Mortem Certificate had been caused by a single person namely A2 could not be relied upon and there was no evidence on the side of the prosecution regarding the occurrence taken place inside the room of the shop. Therefore, he would request the court that the conviction ended against the A1, who had admittedly not participated in stabbing the deceased person should have been set aside and this appeal has to be allowed. 7. Heard the learned Additional Public Prosecutor and taken note of his submissions. On giving anxious thoughts to the arguments submitted on either side, we could see that the alleged occurrence had taken place on 24.12.2005 at 10.30 a.m at the shop belonging to the deceased and immediately after such occurrence said to have been committed by A1 and A2 the unknown persons, it had been immediately complained to the police and case was registered at 11.30 a.m on the same day. Investigation commenced immediately by the Investigating Officer by visiting the scene of occurrence by 12.15 p.m on the same day. Inquest was also made by the Investigating Officer on that day itself and the inquest report was also produced as Ex.P.20. In the said inquest report, it has been mentioned that two persons have been found to commit the murder of Dheena Thayala Pandurangan, the deceased person. After inquest, body was sent to autopsy and the Post Mortem Certificate produced as Ex.P.8 would disclose that the injuries sustained by the deceased person caused to haemorrhage and shock and thereby the death occurred. It is also opined that the death would have been caused 7 to 9 hours prior to autopsy. The autopsy was done at 04.40 p.m on 24.12.2005, and therefore the time of death as complained by P.W.1 is also corroborated. P.W.1 is the employee of the said shop belonging to the deceased and P.W.2. The evidence of P.W.2 would go a long way to show that she was appointed as an attendant in the said shop. The complaint given by P.W.1 in Ex.P.1 was registered and the allegations made therein cannot be disputed because the occurrence has been immediately reported and the Police had also registered the case without any delay and the inquest and Post Mortem was also done immediately. Similarly the evidence of P.W.1 had categorically proved the occurrence as spoken in Ex.P.17 F.I.R. Therefore it has been categorically proved by the prosecution that the death of deceased Dheena Thayala Pandurangan was caused due to the stab injuries caused by two persons who visited the shop belonging to him under the guise of buying a baby ring with a plan to murder the owner and to commit theft of jewels in the said shop. 8. Whether those two persons are the accused A1 and A2 as found by the lower court is an important point to be answered. No doubt, the Test Identification Parade was conducted on the arrested accused https://hcservices.ecourts.gov.in/hcservices/ with the sole surviving ocular witness P.W.1. The Identification Parade proceedings were marked as Ex.P.6 and the Judicial Magistrate who conducted investigation parade was examined as P.W.6. P.W.1 had participated in the Test Identification Parade and had identified the accused A1 and A2 on three occasions. It has been contended by the learned counsel for the appellant that the police have tutored P.W.1 by showing the accused persons and also by producing the photographs of the accused and therefore the Test Identification Parade cannot be a true identification proceedings. The said objection of the learned counsel for the appellant was without any substance, since P.W.1 had denied the said suggestion in her evidence. Therefore the evidence of P.W.1 is unassailable and it would prove the participation of A1 and A2 in the said occurrence which took place in the shop belonging to the deceased person. However the learned counsel for the appellant would also submit that the recovery of jewels through the confession after a long period of two years without the support of receivers evidence would not support the case of the prosecution and the recovered jewellery to an extent of 62 sovereigns could be false one when the alleged theft of jewellery at the place of the deceased person was only 10 sovereigns. This circumstance would lead to a suspicion of commission of crime by the accused A1 and A2 and therefore the benefit of doubt should have been given to the accused. The said line of argument advanced by the learned counsel for the appellant cannot be sustained because A1 and A2 were identified by P.W.1 clearly and the incident was proved through the eye witness P.W.1 as well as other documentary evidence produced on the side of prosecution. The confession statement given by A1 and A2 and the recovery of jewellery in pursuance of the said confession statement were also proved by independent witness namely P.W.9. The motorcycle used by the accused during the time of occurrence was also seized as M.O.18 which belongs to one Sivasubramanian P.W.12 under whom the accused were working as employees in a hotel. All these circumstances would strengthen the case of the prosecution, and therefore the omission of producing any finger print lifted at the scene of occurrence for affirming the participation of the accused A1 and A2 in the crime is not at all required in this circumstances of the case. 9. In these circumstances, we are of the considered view that the lower court was right in ending in conviction against A1 and A2 on the charges framed against them. The appellant/A1 who had also participated with A2 who committed murder in the said occurrence had hatched the conspiracy of committing such murder and theft of jewels from the said shop could be inferred through the circumstances of the case. The accused A1 and A2 who visited the shop belonging to the deceased person for giving an order for baby ring was established through Ex.P.2. Subsequent visiting of A1 and A2 on the next day to the shop belonging to the deceased and commission of murder of the deceased by A2 with active collusion of A1 with knife on hand would automatically put the A1 landing in the crime of conspiracy to commit murder and the appellant/A1 cannot be freed from the charges framed https://hcservices.ecourts.gov.in/hcservices/ against them. Therefore, we have no hesitation to confirm the judgment of conviction and sentence passed by the lower court against A1. 10. Accordingly, the criminal appeal fails and the same is dismissed, confirming the judgment of conviction and sentence passed by the trial Court. kpr Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar To 1. The Judicial Magistrate No.Ii, Tiruppur. 2.The Chief Judicial Magistrate, Coimbatore. 3.The Additional District and Sessions Judge Fast Track Court No.V, Coimbatore at Tiruppur 4. The District and sessions Judge, Coimbatore. 5. The Inspector of Police, Peruma Nallur Police Station Coimbatore District. 6. The Superintendent of Central Prison, Coimbatore (In duplicate for the communicated for the detenu) 7. The Public Prosecutor, High Court, Chennai. 8. The District Collector, Coimbatore 9.The Director General of police, Chennai - 4. Crl.A.No.376 of 2009 VS (CO) SS (23.11.2009 https://hcservices.ecourts.gov.in/hcservices/