BAIL SLIP --- The Appellants herein/Accused viz.,Kanagaraj @ Kanagu, P.Chandrasekaran @ Chinnathambi, Satish Kumar @ Satish, Selvaraj @ Raja and Senthil Kumar @ Senthil were directed to be released on bail in and by the order of this Court dated 20.6.2003, 10.7.2003, 9.7.2003, 7.6.2005 and 28.6.2005 and made in Crl.M.P.Nos.3920/03, 5400/03, 5993/03, 4223/05 and 2562/05 respectively. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.02.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.A.Nos.16, 331, 998 of 2003 and 93 and 119 of 2005 Kanagaraj @ Kanagu .. Appellant in Crl.A.No.16 of 2003 P.Chandrasekaran @ Chinnathambi .. Appellant in Crl.A.No.331 of 2003 Satish Kumar @ Satish .. Appellant in Crl.A.No.998 of 2003 Selvaraj @ Raja .. Appellant in Crl.A.No.93 of 2005 Senthil Kumar @ Senthil .. Appellant in Crl.A.No.119 of 2005 Vs. State of Tamil Nadu, rep. by the Inspector of Police, Aanaimalai Police Station, Aanaimalai, Pollachi Taluk, Coimbatore District. (Crime No.128 of 2002) .. Respondent in all the Criminal Appeals Criminal Appeals against the judgment dated 4.12.2002 in S.C.No.367 of 2002 on the file of the Additional District and Sessions Court (Fast Track Court No.3), Coimbatore. For appellant in Crl.A.No.16 of 2003 : Mr.S.Kolandasamy For appellant in Crl.A.No.331 of 2003: Mr.K.Kalyanasundaram For appellant in Crl.A.No.998 of 2003: Mr.R.Sankarasubbu https://hcservices.ecourts.gov.in/hcservices/ For appellants in Crl.A.Nos.93 and 119 of 2005: Mr.T.Jaishankar For respondent in all the Criminal Appeals: Mr.I.Paul Noble Devakumar, Govt. Advocate (Crl. Side). JUDGMENT The Criminal Appeals arise out of the judgment dated 4.12.2002 in S.C.No.367 of 2002 on the file of the Additional District and Sessions Court (Fast Track Court-3), Coimbatore, whereby, A.5 (appellant in Crl.A.No.998 of 2003) and A.3, were convicted for the offence under Section 414 IPC and each sentenced to undergo three years' rigorous imprisonment, A.1 (appellant in Crl.A.No.16 of 2003), A.2 (appellant in Crl.A.No.331 of 2003), A.4 (appellant in Crl.A.No.93 of 2005) and A.6 (appellant in Crl.A.No.119 of 2005) were convicted for the offence under Section 450 IPC and each sentenced to undergo seven years' rigorous imprisonment and A.1, A.2, A4 and A.6 were also convicted for the offence under Section 395 read with 397 IPC and each sentenced to undergo seven years' rigorous imprisonment. The sentences imposed on A.1, A.2, A.4 and A.6 were directed to run concurrently. A.3 and A.5 were acquitted of the charges under Sections 450 and 395 read with 397 IPC. 2. The case of the prosecution is as follows: (a) P.W.2 Ponnuthayee is the wife of P.W.1 Nataraj Gounder. They were residing in the farm house at Singaanallur, Pollachi. (b) On the fateful day on 28.3.2002 at about 1 a.m., they woke up on hearing the barking of the dog and they also witnessed outside that there was some movement of people. Immediately, they switched on the lights. At that time, the persons outside the house attempted to break open the door of the kitchen. Immediately, P.W.2 took all the jewels and placed them in a flush-out tank. Then, A.1, A.2, A.4 and A.6 entered into the house after breaking the asbestos sheet and they directed P.Ws.1 and 2 to open the bed room. One of the accused used 'aruval' and threatened P.W.2 to open the bureau. Then, they searched for the jewels and they took away the same from the flush-out tank. Subsequently, they tied P.Ws.1 and 2 in the chair and left the place. (c) P.W.1 struggled and untied the rope and he also untied the rope of his wife P.W.2 and at 7 a.m., he intimated the same to their sons through P.W.3, who went to P.W.4's house and he used the telephone of P.W.4 and intimated the same to P.W.1's sons. (d) Subsequently, at 10 a.m., P.W.1 went to Aanaimalai Police Station and gave a complaint Ex.P-1. P.W.8 Karuppuasmy, Sub-Inspector of Police, received the same and registered a case in Cr.No.128 of https://hcservices.ecourts.gov.in/hcservices/ 2002 for the offence under Section 392 IPC and prepared Ex.P-17 FIR. (e) P.W.9 Easwaran, Inspector of Police, took up the matter for investigation and he went to the place of occurrence and prepared Ex.P-15 observation mahazar in the presence of P.W.6 Kalimuthu and one Balasubramaniam and he also drew Ex.P-18 rough sketch. (f) The Police searched for the accused. On 5.4.2002, the Police intercepted the vehicle and at that time, A.1 Kanagaraj @ Kanagu and A.2 Chandrasekaran @ Chinnathambi were proceeding in a mopeds. At that time, P.W.9 Inspector of Police arrested A.1 and A.2 in the presence of P.W.5 Murugajothi and one Vellangiri. A.1 gave a confession and at that time, P.W.9 seized 'aruval' and M.O.18 moped, from A.1 under a mahazar. (g) A.2 also gave a confession and in pursuance of the same, he handed over the stabiliser and M.O.14 aruval under Ex.P-9 mahazar. (h) Subsequently, near Kaligapuram water tank, at 12.30 p.m., on the same day, P.W.9 Inspector of Police arrested A.3 Ramu @ Ramakrishnan, A.4 Raja @ Selvaraj, A.5 Sathishkumar @ Sathish and A.6 Senthilkumar @ Senthil. At that time, A.3 gave a confession and in pursuance of the same, he handed over M.O.6 anklet, aruval and M.O.16 TVS-50 two-wheeler, which were seized under Ex.P-11 mahazar. Likewise, A.4 also gave a confession and he handed over M.O.7 ring, M.O.8 black colour 'pasi' chain, M.O.11 bangle and M.O.2 knife (gpr;Rth fj;jp) under Ex.P-12 mahazar. (i) A.5 has also given a confession and in pursuance of the same, he handed over M.O.9 bangle, M.O.12 'thali' chain, aruval and M.O.17 TVS moped, which were seized under Ex.P-13 mahazar. A.6 also gave confession and in pursuance of the same, M.O.10 nose screw and stabiliser have been seized under Ex.P-14 mahazar. (j) P.W.9 Inspector of Police sent the accused for judicial custody. He also sent the material objects seized to the concerned Court. (k) On 9.4.2002, P.W.9 Inspector of Police gave requisition to the Court for conducting test identification parade. In pursuance of the same, after receiving the proceedings from the concerned Court, P.W.7 Mr.Sivakumar, the then Judicial Magistrate No.2, Pollachi, followed the procedures and conducted the test identification parade and submitted Ex.P-16 test identification parade report. (l) P.W.10 Vijayan, another Inspector of Police, took up the matter for further investigation. He examined the witnesses of the identification parade and recorded their statements. He filed the https://hcservices.ecourts.gov.in/hcservices/ charge sheet against the accused for the offences under Sections 450 and 395 read with 397 IPC. 3. The trial Court framed necessary charges against the accused, and they pleaded not guilty. After examination of the witnesses, the accused were questioned under Section 313 Cr.P.C., about the incriminating evidence against them, and they denied the same. After considering the evidence of P.Ws.1 to 10, Exs.P-1 to P-19 and M.Os.1 to 18, the trial Court convicted and sentenced the accused and acquitted them, as indicated above. Against that, the present Criminal Appeal has been preferred by A.1, A.2, A4, A.5 and A.6. 4. Learned counsel for A.1, A.2, A.4 and A.6 would submit that there was a delay in preferring the complaint. The date of occurrence is 29.3.2002 at about 1 a.m. and the complaint was preferred at 10 a.m. There was a delay of about 9 hours. There is also contradiction between the oral evidence of P.Ws.1 and 2 who are husband and wife. A.2 was not identified by P.W.1. F.I.R. does not contain the description of the accused. Even though the finger print expert's service has been utilised, neither the finger print expert was examined, nor his report was marked. Hence, the learned counsel prayed for acquittal of A.1, A.2, A.4 and A.6. 5. Learned counsel for A.5 would contend that the arrest is not proved and admissible portion of the confession obtained from the A.5 was not marked. So, there is no document to prove that A.5 was in possession and assisting for concealment of the stolen properties. Hence, the ingredients of Section 414 IPC are not made out. Therefore, he prayed for acquittal of A.5. 6. Learned Government Advocate (Criminal Side) appearing for the respondent-Police would submit that A.3 is known to P.Ws.1 and 2 and since they are aged persons, i.e. P.W.1 is aged about 85 years and his wife P.W.2 is aged about 77 years, if there is any contradiction here and there in their evidence, it will not vitiate the entire case of the prosecution. Learned Government Advocate further submitted that A.1, A.4 and A.6 were twice identified by P.W.1 and A.1, A.2, A.4 and A.6 were thrice identified by P.W.2. So, the trial Court has considered all the aspects in proper perspective and came to the conclusion. Hence, he prayed for dismissal of the appeals. 7. The first point argued by the learned counsel for the accused is that there is delay in preferring the complaint. Before deciding the facts, we have to consider as to whether the evidence of P.Ws.1 and 2 is reliable. P.Ws.1 and 2 are the husband and wife and they are aged persons, residing in the farm house. Considering their evidence in chief examination and the way in which they have given answers both in the chief examination and cross examination, and considering their age, I am of the view that there is no reason to https://hcservices.ecourts.gov.in/hcservices/ discard the evidence of P.Ws.1 and 2. Hence, the trial Court is correct in holding that the evidence of P.Ws.1 and 2 is reliable. 8. P.Ws.1 and 2 gave information to their sons through P.W.3, who in turn, went to P.W.4's house and utilised the telephone and sent the message to P.W.1's sons. Considering the evidence of P.Ws.1 and 2 and that in the mid-night, they heard the noise and they woke up and wanted to save the jewels, and that P.W.2 concealed the jewels in the flush-out tank and the jewels have been removed by the accused and after 6 O'clock, P.W.3 as usual, came for milk vending and then only, P.Ws.1 and 2 directed him to give information to their sons, since the telephone in their house was not in working condition. Subsequently, P.W.1 went to Police Station and gave complaint at about 10 a.m. So, I am of the view that P.W.1 has given explanation and considering the age of P.Ws.1 and 2, who are the only old couples residing, and that at about 1 o'clock in the mid-night, they were subjected to harassment, we cannot expect them to immediately give complaint to the Police. P.W.1 has given convincing explanation for preferring a complaint at 10 a.m. Hence, I am of the view that the delay is not fatal to the case of the prosecution, as the delay has been properly explained. 9. Learned counsel for the appellants-accused would further submit that the FIR does not contain the identification/description of the accused. It is true that it does not contain the identification/description of the appellants-accused, whereas, in the complaint, it was stated that @btspr;rj;jpy; ehY ngiua[k; milahsk; ghh;j;njhk;@. Furthermore, P.W.7 Judicial Magistrate has conducted identification parade and P.Ws.1 and 2 have identified some of the accused. P.W.1 twice identified A.1, A.4 and A.6 and P.W.2 thrice identified A.1, A.2, A.4 and A.6. P.Ws.1 and 2 have not identified A.3 and A.5. P.W.1, while identifying the accused for the third time, identified A.1, A.4 and A.6 only and not A.2, but he identified one Sekar, who is not related to the case. 10. At this juncture, learned counsel for the appellants- accused would submit that in Section 313 Cr.P.C. questioning, no question has been posed to the accused in respect of the identification of the accused and hence, it is fatal to the case of the prosecution. While perusing Section 313 Cr.P.C. questioning, the questions were posed to the accused in Question Nos.12 to 14 and in that, the accused have stated that no proper identification parade was conducted and stated that @milahs mzptFg;g[ rhpay;y@/ In such circumstances, I am of the view that there is no infirmity in the evidence of P.W.7 and Ex.P-16 identification parade report. So, P.W.1 has identified A.1, A.4 and A.6 and P.W.2 has identified A.1, A.2, A.4 and A.6 and stated that those persons entered into the house of P.Ws.1 and 2 and committed dacoity. Therefore, non-mentioning of the identification/description of the accused, in the FIR, will not in https://hcservices.ecourts.gov.in/hcservices/ any way affect the case of the prosecution. 11. Learned counsel for the appellants-accused further submits that the damaged materials have not been seized from the scene of occurrence. As per the evidence of P.Ws.1 and 2, A.1, A.2, A.4 and A.6 entered the kitchen after breaking the asbestos sheets and the asbestos sheets have not been recovered. Admittedly, the scene of occurrence is not disputed. Mere non-seizure of asbestos sheets is not fatal to the case of the prosecution. 12. Learned counsel for the appellants-accused further submits that even though the finger print expert's service has been utilised, neither the finger print expert was examined, nor his report has been marked. It is true that the finger print expert has not been examined and his report has not been marked. But however, P.Ws.1 and 2 who are the eye-witnesses, identified A.1, A.2, A.4 and A.6 in the test identification parade conducted by P.W.7 Magistrate and they have also identified the material objects marked before the Court, stating that they belong to them. In such circumstances, non-examination of the finger print expert will not affect the case of the prosecution. 13. Learned counsel for the appellants-accused would vehemently argue that the recoveries of material objects, have not been properly made as per Section 27 of the Indian Evidence Act, because, the confession statements of the accused were recorded and P.W.5's signatures have been marked and the information for recoveries of material fact has not been marked and so, the recoveries have not been proved in accordance with law. To substantiate the same, learned counsel for the appellants relied upon the decisions of the Supreme Court reported in 1976 (1) SCC 828 (Mohamed Inayatullah Vs. State of Maharashtra), 2005 SCC (Cri) 597 (Anter Singh Vs. State of Rajasthan) and 2005 (12) SCC 461 (Peerappa Vs. State of Karnataka). In the said decisions, it was held as follows: " 1976 (1) SCC 828 " (Mohamed Inayatullah Vs. State of Maharashtra) "Reading the confession it will be noticed that the appellant never said that it was he who had deposited the drums at the place from which they were produced." "Applying Section 27, the threefold fact discovered was: (a) the stolen chemical drums, (b) the place of recovery, and (c) appellant's knowledge of such deposit. Splitting the statement as required by Section 27, only the first part of the statement, viz., "I will tell the place of deposit of the three chemical drums" was the immediate and direct cause of the fact discovered. Therefore, this portion only was admissible under Section 27. The rest of https://hcservices.ecourts.gov.in/hcservices/ the statement, namely, "which I took out from the Haji Bunder on first August", constituted only the past history of the drums or their theft by the accused; it was not the distinct and proximate cause of the discovery and had to be ruled out of evidence altogether." "Now the admissible portion of the information taken in conjunction with the facts discovered was not sufficient to draw the presumption that the accused was the thief or receiver of stolen property knowing it to be stolen. The drums were neither concealed nor shown to be within the possession of the accused. It was a public place." " 2005 SCC (Cri) 597 " (Anter Singh Vs. State of Rajasthan) "11. The scope and ambit of Section 27 of the Evidence Act were illuminatingly stated in Pulukuri Kottaya v. Emperor (AIR 1947 PC 67 : 74 I.A. 65 : 48 Cri.L.J. 533) in the following words, which have become locus classicus: (AIR, p.70, para 10): "[I]t is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of the knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A' these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." 12. The aforesaid portion was again highlighted in Prabhoo v. State of U.P. (AIR 1963 SC 1113 : (1963) 2 Cri.L.J. 182). 13. Although the interpretation and scope of https://hcservices.ecourts.gov.in/hcservices/ Section 27 has been the subject of several authoritative pronouncements, its application to concrete cases in the background events proved therein is not always free from difficulty. It will, therefore, be worthwhile at the outset, to have a short and swift glance at Section 27 and be reminded of its requirements. The section says: "27. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved." 14. The expression "provided that" together with the phrase "whether it amounts to a confession or not" shows that the section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent, Section 24, also. It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word "distinctly" means "directly", "indubitably", "strictly", "unmistakably". The word has been advisedly used to limit and define the scope of the provable information. The phrase "distinctly" relates "to the fact thereby discovered" and is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered. (See Mohd. Inayatullah v. State of Maharashtra ( (1976) 1 SCC 828 : 1976 SCC (Cri) 199 : AIR 1976 SC 483). https://hcservices.ecourts.gov.in/hcservices/ 15. At one time it was held that the expression "fact discovered" in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact, now it is fairly settled that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this, as noted in Pulukuri Kottaya case (AIR 1947 PC 67 : 74 IA 65 : 48 Cri.L.J. 533) and in Udai Bhan v. State of U.P (AIR 1962 SC 1116 : (1962) 2 Cri.L.J. 251). 16. The various requirements of the section can be summed up as follows: (1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused and not by the accused's own act. (4) The person giving the information must be accused of any offence. (5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible. 17. As observed in Pulukuri Kottaya case (AIR 1947 PC 67 : 74 IA 65 : 48 Cri.L.J. 533) it can seldom happen that information leading to the discovery of a fact forms the foundation of the prosecution case. It is one link in the chain of proof and the other links must be forged in a https://hcservices.ecourts.gov.in/hcservices/ manner allowed by law. To similar effect was the view expressed in K.Chinnaswamy Reddy v. State of A.P. (AIR 1962 SC 1788 : (1963) 1 Cri.L.J. 8)." " 2005 (12) SCC 461 " (Peerappa Vs. State of Karnataka) "12. Regarding the recovery of weapons on the basis of the alleged disclosure made by the accused, the trial court commented that no blood was found on the weapons. Moreover, the learned trial Judge observed that the places from which A-1 to A-4 produced the articles were accessible to public and therefore no reliance can be placed on such recovery. Another reason given by the trial court was that the IO did not record the statement of A-1 to A-4 in the diary before proceeding to the place, but he made A-1 to A- 4 repeat the same information in the presence of the panch PW 6 and therefore the statement made by A-1 to A-4 cannot be said to be information to the police which led to the discovery under Section 27 of the Evidence Act. The trial court placed reliance on a case reported in 1964 Mysore Law Journal 185. Here also we find that the High Court did not deal with the reasons given by the trial court. The High Court merely referred to the evidence in regard to the recoveries and held that they were proved beyond doubt. Though we feel that some of the reasons given by the trial court for discarding the recoveries are not correct, we are not convinced that there is satisfactory evidence regarding recovery of weapons. PW 6 stated that he did not enter the dilapidated house in which A-2 and A-4 allegedly pointed out the knife (MO-11) and jambia (MO-12) respectively which the police seized. In the course of cross-examination, he further stated that he was standing outside the house along with another panch and police officer. Moreover, PW 6 also stated that neither A-2 nor A-4 informed him that they had kept the knife in the dilapidated house. The trial court found that the IO did not record the information anywhere. But the prosecution version is that in the presence of the panchas, the accused orally revealed at the police station about the factum of hiding