Bail Slip The appellant /accused namely Mr.Murali, S/O.Ganesan, was directed to be released on bail by the order of this court dated 06.09.2006 made in MP.NO.1/2006 in Crl.A.546/2006 The appellant/accused NO.1 namely Mr.Rakkappan @ Ramkumar@ Arukulai Arumugham, S/O.Anguswamy, was directed to be released on bail by the order of this Court dated 17.04.2007 made in MP.No.1/2007 in Crl.A.606/2006 The appellant/accused namely Mr.Rajadurai (A2) S/O.Dharman, was directed to be released on bail as per the order of this court dated 28.02.2007 made in MP.NO.2/2007 in Crl.A.696/2006. The appellant/accused No.3 namely Mr.Jayakumar S/O.Chandrasekaran, was directed to be released on bail by the order of this Court dated 28.02.2007 made in MP.NO.3 of 2007 in Crl.A.696/2006 The appellants/accused Nos.4 and 5 namely Murugan S/O.Thangavelu, and Guna@Gunaseelan, S/O.Durai Kannan, were directed to be released on bail by the order of this court dated 29th day of January Two Thousand seven (29/1/07) made in MP.NO.1 of 2007 in Crl.A.696/2006 The appellant/accused No.7 namely Mahendran, S/O.Renu, was directed to be released on bail by the Order of this Court dated 12.01.2007 made in MP.NO.1/2006 in Crl.A.NO.697/2006 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.11.2011 Coram : THE HONOURABLE Ms. JUSTICE K.B.K.VASUKI Crl.A.Nos.546, 606, 696 and 697 of 2006 Murali .. Appellant in Crl.A.546 of 2006(A6) Rakkappan @ Ravikumar .. Appellant in Crl.A.606 of 2006(A1) 1.Rajadurai 2.Jayakumar 3.Murugan 4.Guna @ Gunaseelan .. Appellants in Crl.A.No.696 of 2006 (A2 to 5) Mahendran .. Appellant in Crl.A.No.697 of 2006 (A7) https://hcservices.ecourts.gov.in/hcservices/ Vs. State rep. by the Inspector of Police, J5 Shastri Nagar Police Station, Chennai (Cr.No.404/2001) .. Respondent in all the appeals Prayer: Criminal Appeals are filed under Section 374(2) of Criminal Procedure Code, against the judgment dated 21.06.2006 made in S.C.No.276 of 2005 on the file of Additional District and Sessions Judge (FTC No.V), Chennai. For Appellants : M/s.S.Palanivelayutham. For Respondent : Mr.C.Balasubramanian Addl. Public Prosecutor. COMMON JUDGMENT All the four appeals are filed by A1 to A7 for their conviction and sentence for the offences under Section 342 r/w.34, 45 r/w.34 and 395 r/w.34 IPC. 2. The case of the prosecution is that on 06.05.2001 at about 8.20pm the accused 1 to 7 reached one jewellery shop under the name and style of M/s.Kanchana Gold House owned by one Nithish and Preetham situated at Door No.28 L.B.Road, Adyar, Chennai with an intention to commit an act of theft and the accused 1 to 4 armed with knife entered into the jewellery shop, while the accused 5 to 7 guarded outside. The accused 1 to 4 having entered the shop wrongfully confined the witnesses Nithish, Preetham, Ravikumar and Krishnan at knife point inside locker room and stolen gold jewels weighing 8½ kilograms and seven diamond rings and cash of Rs.60,000/-, totally worth about Rs.26,00,000/- from inside the shop thereby committed the acts constituting the offences punishable under Sections 342, 451 r/w.34, 395 r/w397 IPC. 3. The prosecution has, in order to prove the factum and manner of the occurrence and participation of the accused in the occurrence in the manner as spoken by the prosecution, examined the so-called inmates of the shop at the time of occurrence, the pawn brokers with whom the stolen articles were allegedly pledged by the accused, the witnesses for the arrest of the accused and seizure of the materials objects and IOs, who registered the complaint and held investigation as PW1 to PW29 and produced the complaint, FIR, admissible portion of the confession statement of the accused A1 to A6, signature of the witnesses in the seizure mahazars and receipts for pledging the jewels as Ex.P1 to Ex.P47, in addition to stolen jewels with cash and also household articles seized from the house of A1 produced as material objects Ex.MO.1 to MO.181. The receipt dated 09.05.2001 for pledging the jewels is marked as Ex.D1 on the defence side. https://hcservices.ecourts.gov.in/hcservices/ 4. The trial court on the basis of the available evidence believed the case of the prosecution and found the accused guilty and convicted and sentenced them for the offences as referred to above. Hence, these appeals by the accused A1 to A7 before this Court. 5. During the pendency of these appeals it is brought to the notice of this court that the report relating to the identification parade was not sent to the trial Court by the concerned Judicial Magistrate. Hence, for effective disposal of the case, the trial court is directed to examine the concerned Judicial Magistrate and to receive the report relating to the test identification parade held by him and accordingly, he was examined as PW30 and the identification parade proceedings is received as Ex.P48 and the copies of the additional evidence is also duly furnished to the accused/appellant. 6. The learned counsel on record for the appellant/A1 in Crl.A.No.606 of 2006 and the learned senior counsel appearing for the counsel on record for A2 to A5, A6 and A7, who are the appellants in Crl.A.Nos.696, 546 and 697 of 2006 respectively have in the course of their arguments pointed out various inconsistencies and material contradictions as detailed below in the case of the prosecution, which are according to the learned counsel for the appellants, likely to shatter the very foundation of the prosecution case and the same are omitted to be taken serious note of by the trial court. 7. (i)Two out of four witnesses i.e, PW1 and PW2 did not identify all the accused on all the three occasions (a)police station (b)identification parade (c)open court hall. (ii)Both PW1 and PW2 did not identify A1 to A4 who according to the prosecution, entered the shop and actually committed the act of theft (iii)there is no material available to connect A6 and A7 in the commission of the occurrence in any manner (iv)arrest of the accused, recording of voluntary confessional statements and seizure of the stolen articles from them is not established through competent witnesses and the same is sought to be established only through I.O. (v)witnesses examined to speak about the arrest and seizure, did not support the prosecution theory and (vi)the witnesses from whom the articles seized did not identify either the accused or the articles. (vii)The prosecution theory regarding the seizure of the articles in two places situated at the distance of 600km from Sivagangai to Chennai between 6.00am to 7.00am and at 11.20am to 7.00pm at Chennai respectively in presence of the same witnesses belonging to Chennai, is totally unbelievable and unexpectable. (viii)The pawn brokers from whom the remaining articles were allegedly seized did not either identify the accused or MOs allegedly seized from them. (ix)No reliance can be placed upon the identification of the accused by PW1 and PW2 before the Judicial Magistrate for the simple reason that the accused were admittedly shown to them in the police station and all the four accused, out of seven accused. who allegedly trespassed https://hcservices.ecourts.gov.in/hcservices/ into the shop and committed the theft, are not identified by the witness in the identification parade held by the concern Judicial Magistrate. (x)The material documents, such as stock book and cash book are not seized from the shop owners to ascertain the genuineness of the complaint regarding the articles and the quantum of the stolen amount. 8.Per contra, the learned Additional Public Prosecutor has on the basis of the evidence of PW1 and PW2 and PW27 to PW29/IOs and also on the basis of the prosecution theory regarding arrest and recovery, sought to defend the judgment of conviction recorded by the trial court. 9.Heard the rival submissions made on both sides. 10.According to the prosecution, the eyewitnesses for the occurrence, who were allegedly inside the shop at the time of the occurrence, are PW1 to PW4. Out of four witnesses, PW3 and PW4 who are admittedly independent witnesses did not identify either of the accused as that of the persons participated in the occurrence. Out of the remaining two witnesses PW1 is the defacto complainant and he claims himself to be the owner of the shop and PW2 claims himself to be the partner of PW1. Whereas, the recitals contained in Ex.P1 complaint given by PW1 and the admission made by PW2 in the course of his cross examination would bely their claims regarding their ownership and partnership of jewellery shop. PW1 and PW2 have in the course of their evidence categorically admitted that the jewellery shop under the name and style of M/s.Kanchana Gold House is a proprietorship concern having one Mukesh as its proprietor who was admittedly not available in the shop at the time of the occurrence. The owner was not also neither cited nor brought into the witness box as one of the prosecution side witnesses. 11.As already referred to the definite case of the prosecution is that out of seven, four accused A1 to A4 entered the shop and A5 to A7 guarded outside. Whereas PW1 identified accused 1, 3, 4 and 5 and PW2 identified 2, 3 and 4 as that of the four persons who entered the shop committed the act of theft. According to PW2, out of seven, four persons entered the shop portions and A2 to A4 are three of them and the 4th accused is not available in the court hall. PW1 did not identify A2 and PW2 did not identify A1 and A5, such inconsistency in the evidence of PW1 and PW2 would render the prosecution theory regarding the participation of A1, A2 and A5 to be doubtful. 12.Further, no serious reliance can be attached to the identification of A1 to A5 in the open court hall by PW1 and PW2 as https://hcservices.ecourts.gov.in/hcservices/ they are already shown to them as accused in the police station within few months from the date of the occurrence and also for the other reason that they are not able to identify the accused in the test identification parade held by PW30 Judicial Magistrate. 13.As far as A1, A3 and A5 are concerned no stolen articles are recovered from them. The other incriminating substance available is the arrest and recovery of stolen articles from them, and the recovery of stolen articles from PW5 to PW13 pawn broker. As far as the arrest of A1 is concerned the witnesses for the arrest of A1 by name Antony Rajan and Sakthivel for the reasons best known to the prosecution, are not examined before this Court. PW14 Kanniappan who is the witness for the arrest and recording of confession statement of A3 did not support the prosecution theory and he is declared to be hostile witness. The evidence of PW22 Tamilarasu who is one of the witnesses for the arrest and recording of confession statement and the recovery of articles from A5 Guna @ Gunaselan and A6 Murali need not be, as rightly pointed out by the learned counsel for the appellants, placed any importance. The evidence of PW18 Buddhi Prakash and PW20 Umapathy with whom the articles allegedly pledged by A1 and A5, did not support the prosecution theory and they turned hostile. The evidence of PW18, PW19 and PW20 for the same is not supported by the evidence of PW22 Tamilarasan and they do not corroborate with each other. The evidence of PW18 Buddhi Prakash and PW19 Manibarathi regarding the persons from whom the articles are seized and to whom the articles are pledged by the accused is not supported by the evidence of PW20 Umapathy, who was the witness for the seizure of articles from PW19 Manibarathi. The prosecution has failed to examine other witnesses for the arrest and recording of their confession statement and the seizure of MOs to establish the prosecution theory in this regard. 14.The aspects above discussed compelled with the other shortcomings in the prosecution case as listed in para 7 above would in my considered view lead to a conclusion that the finding of conviction of the accused by the trial court is based on no evidence and the judgment of the Trial Court is hence legally and factually unsustainable and the same deserves interference by this Court. 15.In the result, all the criminal appeals are allowed by setting aside the judgment of conviction dated 21.6.2006 made in S.C.No.276 of 2005 on the file of the Additional District and Sessions Judge (Fast Track Court No.V) Chennai and A1 to A7 are acquitted from the charges. The bail bond if any executed by the https://hcservices.ecourts.gov.in/hcservices/ accused shall stand cancelled and the fine amount if any paid by the accused shall be refunded to them. -s/d- Assistant Registrar(CSII) Dated:15/04/2014 True Copy Sub-Assistant Registrar To 1.The Additional District and Sessions Judge (FTC No.V), Chennai. 2.-do-Thro'The Principal Sessions Judge, Chennai 3.The IX Metropolitan magistrate saidapet, chennai 4.The V Metropolitan Magistrate, Egmore, Chennai 5.-do-Thro' The chief metropolitan Magistrate, egmore, chennai(for information) 6. The superintendent Central Prison, Vellore 7. The Superintendent Central Puzhal, Chennai 8. The Inspector of Police, J5 Shastri Nagar Police Station, Chennai. 9.The Public prosecutor, High Court, madras 10.The Director general of police, Mylapore chennai 11.The District collector, chennai. 12.The District Collector Vellore. +1 cc to Mr.S.PalaaniVelayutham Counsel for Appellant sr.71769 +1 cc to Mr.N.Bhaskaran counsel for Appellant sr.71982 Crl.A.Nos.546, 606, 696 and 697 of 2006 aa16/04/2014 https://hcservices.ecourts.gov.in/hcservices/