The Criminal Revision Case is filed against the judgment passed in C.A.No.3 of 2017, dated 31.01.2017 on the file of the learned Additional District Judge (Fast Track Mahalir Court), Karur in C.C.No.179 of 2010 on the file of the learned Judicial Magistrate No.II, Karur, dated 02.01.2017
2.The revisions petitioners are the accused. The criminal revision is directed against the concurrent finding of the judgments of the trial Court and the Appellate Court, convicting the petitioners/accused for the offence under
Section 379 IPC and sentencing them to undergo Simple Imprisonment for one year.
3.The case of the prosecution is that on 04.03.2009, at about 09.15. am, the defacto complainant, Thilagavathy, who was then working as a teacher in a School, situated at Manjanayakkanpatti, as usual after getting down from the Bus, was proceeding towards her School, the petitioners came in a Bajaj two wheeler bearing registration No.TN 45 F 4442 and snatched away her gold thali chain weighing about 5 ½ sovereigns and that thereby, the petitioners had committed the offence punishable under
Section 379 IPC. http://www.judis.nic.in 2/22 CRL.R.C.(MD).No.201 of 2017
4.P.W.1/complainant visited Velliyanai Police Station and gave a complaint under Ex.P.1. P.W.7 / Sub Inspector of Police, received the complaint from P.W.1 and registered a case in Crime No.43 of 2009, for the offence punishable under
Section 379 of IPC and prepared the First Investigation Report under Ex.P.6. P.W.7 visited the occurrence place at about 03.00.pm on that date itself and prepared the observation mahazar under Ex.P.7 and rough sketch under Ex.P.8 in the presence of P.W.6 / Ramasamy and one Arunachalasundaram and thereafter, in the presence of the said witnesses at about 04.00.pm, she recovered gold beads, coin and amulet (thayathu) along with yellow coloured thali thread from the occurrence place through seizure mahazar under Ex.P.4.
5.On 27.04.2009 at about 08.30.am, when P.W.5, who was working as Sub Inspector of Police in Pasupathipalayam Police Station, was on patrol duty, they have intercepted a two wheeler bearing Registration No. TN 45 F 4442 on suspicion and enquired the petitioners/accused and at that time, the first petitioner has given a voluntary confession statement and the same was recorded by P.W.5 under Ex.P.2 in the presence of the witnesses Balamurugan and Muniraj. As per the confession statement given by the first petitioner, when he was taken to the Kumaran Jewellery, he identified P.W.4/owner of the jewellery and P.W.4 had handed over a gold thali chain alleged to have been sold by the http://www.judis.nic.in 3/22 CRL.R.C.(MD).No.201 of 2017 petitioners and the same was recovered by P.W.5 through seizure mahazar under Ex.P.3. Since the property was relating to the case registered in Velliyanai Police Station, P.W.5 had handed over the same along with seizure mahazar through Velliyanai Police Station. In the meanwhile, P.W.7 has recorded the statement of the witnesses. After coming to know about the arrest and the recovery of the gold chain, since the petitioners were in judicial custody, she has arrested them formally and on production before the jurisdictional Magistrate, they were remanded to judicial custody sofar as the Velliayanai Police Station case is concerned.
6.P.W.7 sent the M.O.1 gold thali chain through Form-95 under Ex.P.9 and the M.O.2 gold thali chain, beads(gundu) and coins and M.O.3 piece of thali thread through Form-95 under Ex.P.10. After completing the investigation, she has filed the final report against the petitioners/accused on 30.04.2009.
7.The learned Judicial Magistrate had taken the case on file in C.C.No.179 of 2010 and furnished the copies of the records under
Section 207 Cr.P.C, on free of costs. Thereafter, the learned Judicial Magistrate has framed the necessary charge under
Section 379 of IPC against the petitioners and when they were questioned, they pleaded not guilty and claimed to be tried. http://www.judis.nic.in 4/22 CRL.R.C.(MD).No.201 of 2017
8.The prosecution in order to prove its case, examined seven witnesses as P.W.1 to P.W.7 and exhibited 10 documents as Ex.P.1 to Ex.P.10 and three materials objects as M.O.1 to M.O.3. When the accused were questioned under
Section 313(1)(b) Cr.P.C with respect to the incriminating aspects found against them, they denied the same. The petitioners have adduced neither oral nor documentary evidence.
9.The trial Court, upon considering the evidence placed before it, has convicted the petitioners/accused for the offence under
Section 379 IPC and sentenced them to undergo Simple Imprisonment for one year. Aggrieved by the said judgment of the conviction, the petitioners have preferred an appeal to the Sessions Court in C.A.No.3 of 2017 and the Appellate Court has dismissed the appeal vide judgment dated 31.01.2017. Aggrieved by the said dismissal, the petitioners have come forward with the present revision.
10.Heard Mr.N.Shankar Ganesh, learned counsel appearing for the petitioners and Mr.V.Neelakandan, learned Additional Public Prosecutor appearing for the respondent.
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11. At the out set, it is pertinent to note that the jurisdiction of this Court under
Section 397 and
401 of Cr.P.C is confined to legality, propriety and correctness of the concurrent findings of conviction entered and sentence imposed on the revision petitioners. The revisional jurisdiction exercised by the High Court is supervisory jurisdiction for correcting miscarriage of justice. But at the same time, the revisional power cannot be equated with the power of an Appellate Court nor it can be treated as a second Appellate jurisdiction.
12.There is absolutely no scope for re-appreciation of entire evidence once again. But at the same time, if the appreciation of evidence is tainted with the perversity, that can be interfered with.
13.The learned counsel for the petitioners/accused would submit that P.W.1/complainant had admitted through her cross examination that she had seen the accused persons in the police station and the police personal only informed her that they were the persons involved in the chain snatching, that identification parade was not conducted and that the same would vitiate the case of the prosecution. He would further contend that the case of the prosecution with respect to arrest, confession and recovery has not been substantiated by the prosecution, that the prosecution has miserably failed to examine the material witnesses, namely, Balamurugan and Muniraj, who have been shown as the http://www.judis.nic.in 6/22 CRL.R.C.(MD).No.201 of 2017 witnesses for the arrest, confession and recovery and that the trial Court as well as the Appellate Court have relied upon the version of P.W.5, who was admittedly the Investigating Officer of another case pending in another Police Station.
14.The learned counsel would further submit that on basis of the alleged confession taken from the first petitioner, they have foisted three cases one in Pasupathi Palayam Police Station, second in Vaangal Police Station and third one in Velliyanai Police Station, the case now under consideration and that the petitioners had already been acquitted in the other two cases, on the ground that the origin and the genesis the case has not been proved. He would further submit that P.W.4/the owner of the jewellery, who alleged to have received the snatched gold thali chain from the petitioners had not unidentified the M.O.1 / thali chain, that one Loganathan, who is said to have certified that thali chain was belonging to the petitioners has neither been cited as witness nor examined before the trial Court and that without considering the material aspects of the case, the trial Court as well as the Appellate Court have recorded the findings erroneously and are very much against the well settled position of law.
15.Per contra, the learned Additional Public Prosecutor would submit that the prosecution has proved the occurrence of chain snatching through the http://www.judis.nic.in 7/22 CRL.R.C.(MD).No.201 of 2017 evidence of P.W.1 and P.W.3 coupled with the identification of the accused by P.W.1 before the trial Court, that the subsequent recovery of M.O.1 / thali chain was also proved through the evidence of P.W.4 and P.W.5, that the trial Court as well as the Appellate Court have correctly analysed the evidence and came to the decision that the prosecution has proved the case beyond the reasonable doubt and that therefore, the appeal is liable to be dismissed.
16.On considering the arguments advanced by both the sides, for the sake of convenience and to avoid repetition, it is necessary to consider the case on the following topics :
(i) Occurrence,
(ii) Arrest, Confession and Recovery,
(iii) Investigation.
(i) Occurrence - whether proved through the oral testimonies of P.W.1 to P.W.3:
17.According to the prosecution, two persons travelled in a two wheeler in which, the rider was wearing helmet and came nearby to P.W.1 and snatched her thali chain. No doubt, P.W.1 in her evidence would say that she could identify both of them and accordingly, she had identified them before the trial Court. She would further say that the second accused Radha @ Murugesan had driven the http://www.judis.nic.in 8/22 CRL.R.C.(MD).No.201 of 2017 two wheeler and other one was the pillion rider. But in cross examination, she would say that she had seen the accused at the police station and that the police had informed her that they were the snatchers of her thali chain. Hence it is pertinent to note that P.W.1 had not identified the accused at the police station, but on the other hand, the police had shown the accused to P.W.1 and introduced them as the snatchers.
18.The prosecution has cited four witnesses as occurrence witnesses, but chosen to examine only two witnesses as P.W.2 and P.W.3 respectively. P.W.2 in her chief examination would say that when she was herding cattle, two persons came in a vehicle from north, that she came to know from P.W.1 that two persons had snatched her thali chain and that she was not aware of those two persons. But in cross examination, she would say that she did not know anything about the said two persons, that they were on masks and that she came to know only from P.W.1 that the said persons came in vehicle.
19.P.W.3 in his evidence before the trial Court would say that when he was proceeding towards P.W.1, two persons crossed him by a vehicle, that since the said two persons had proceeded in a vehicle, he could not catch them and in cross examination, he would say that he had not seen the occurrence of chain snatching, that he came to the occurrence spot only after hearing the scream, that http://www.judis.nic.in 9/22 CRL.R.C.(MD).No.201 of 2017 he had seen the accused moving at a distance of 100 feet and that he had seen the face of both the accused.
20.It is pertinent to mention that P.W.1 in her cross examination would admit that no one was nearby at the occurrence time and that she had seen the public only after chasing out the accused up to a distance of ¼ km. Moreover, P.W. 7 / Investigating Officer in her evidence would admit that there were no occurrence witnesses, who had identified the accused and that no identification parade was conducted.
21.Considering the above, it is very much clear that no other person had witnessed the alleged occurrence of chain snatching and that P.W.1 was able to identify the accused before the trial Court only because the accused were shown to her at the police station. Regarding the identification of the accused before the trial Court, the evidence of P.W.1 is very much categorical that the police alone had shown the accused to P.W.1 and introduced them as snatchers of her gold thali chain.
(ii) Arrest, Confession and Recovery:
22.It is the specific case of the prosecution that on 24.04.2009 at about 08.30 am, when P.W.5 and others were on patrol duty, they intercepted a two wheeler bearing registration No.TN 45 F 4442 on suspicion, in which, the http://www.judis.nic.in 10/22 CRL.R.C.(MD).No.201 of 2017 accused were travelling and on enquiry, the first accused Marimuthu gave a voluntary confession statement in the presence of two witnesses, namely, Balamurugan and Muniraj, that P.W.5 has recorded the same, that as per the confession statement of the accused, when the accused were taken to Kumaran jewellery owned by P.W.4, P.W.4 by pleading ignorance about the nature of the jewels purchased by him from the accused, had handed over the same and that P.W.5 recovered the said gold thali chain through Ex.P.3 seizure mahazar. Admittedly two witnesses Balamurugan and Muniraj alleged to be the witnesses for the arrest, recording the confession statement and consequent recovery of the jewel, were not at all examined before the trial Court.
23.The learned Assistant Public Prosecutor, who conducted the trial before the trial Court has dispensed with the examination of the said witnesses on the basis of the certificate issued by the Village Administrative Officer to the effect that the said witnesses were not available in the address shown in the summons. According to P.W.5, as per the confession statement of the first accused, he recovered the properties connected with the cases pending in Pasupathipalayam Police Station, Vaangal Police Station and Velliyanai Police Station. P.W.5 would admit that in all the three cases, the said two persons were shown as the witnesses for the recovery.
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24.The learned counsel for the petitioners in his arguments would contend that the petitioners have already been acquitted in the other two cases filed by the Pasupathipalayam Police Station and Vaangal Police Station. It is not the case of the prosecution that the said two witnesses were not examined in the other two cases also. The prosecution has not offered any acceptable reason or explanation for not examining the said vital witnesses and the reason assigned by the learned Assistant Public Prosecutor before the trial Court, is evasive and unconvincing. No doubt, as rightly contended by the learned Additional Public Prosecutor, P.W.5/ the Police Officer, who effected arrest, recorded confession and recovered the case properties has given evidence before the trial Court. But it is very much shocking to notice that the entire confession statement has been marked as Ex.P.2. Before entering into further discussion, it is necessary to refer
Section 27 of the Evidence Act.
“How much of information received from accused may be proved. 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.”
25.It is fundamental that a statement given by a person to a Police Officer, in the course of investigation of an offence, under the code of criminal procedure, cannot except to the extent permitted by
<act id=drGwPokB_szha0nW88_M section=27>Section 27 </act>of the Indian http://www.judis.nic.in 12/22 CRL.R.C.(MD).No.201 of 2017 Evidence Act, be used for any purpose at any enquiry, or trial of an offence under investigation at that time, when the statement was made in which, he is concerned as a person accused of an offence. The conditions necessary to bring
<act id=drGwPokB_szha0nW88_M section=27>Section 27 </act>of the Evidence Act into operation are :
(i) Discovery of the fact i.e., relevant fact in consequence of the information received from a person accused of an offence;
(ii) Discovery of such fact must be deposed to;
(iii) At the time of receipt of the information, the accused must be in policy custody;
(iv) Only 'so much of information' as relates distinctly to the fact thereby discovered is admissible.
26.It is settled law that confession statement cannot be marked or exhibited in toto and the particular portion, which discloses a new fact alone can be admitted in evidence under Act 27 of the Evidence Act and the remaining portion is legally inadmissible in evidence. In the case on hand, they have exhibited the true copy of the confession statement containing nine pages and marked as Ex.P.2 through P.W.5. Since the theory of arrest, confession and recovery put forth by the prosecution was specifically disputed and denied by the defence, it is for the prosecution to prove the same beyond reasonable doubt. No http://www.judis.nic.in 13/22 CRL.R.C.(MD).No.201 of 2017 doubt, P.W.5 has deposed about the arrest and the voluntary confession alleged to have been given by the first accused and also the recovery allegedly made from P.W.4, but he has not narrated the entire events that were occurred on 27.04.2009. The Police Officer, who dealt with the arrest, confession, recovery is expected to give evidence narrating the entire incidents commencing from the arrest till the recovery made from the accused at the place of arrest and the recovery made in pursuance of the confession statement and if such evidence is given, then only the Court will be in a position to decide as to whether the theory of arrest, confession and recovery canvassed by the prosecution is genuine or not. No doubt, it is not necessary to give particulars about the recovery made in respect of the other cases in detail.
27.As already pointed out, P.W.5 has not deposed about the entire events that were occurred on 27.04.2009 at the place and time of arrest. P.W.5 in his evidence, would only say that as per the confession given by the first accused, he recovered M.O.1/thali chain from P.W.4. But the portion of the confession statement, which discloses the alleged sale of stolen thali chain allegedly snatched from P.W.1 by the accused to P.W.4 was not at all exhibited specifically nor the same was spoken by P.W.5. No doubt, P.W.4 and P.W.5 would depose about the recovery of M.O.1/ thali chain by P.W.5 from P.W.4, but there was absolutely no evidence available to corroborate their version. Admittedly P.W.5 http://www.judis.nic.in 14/22 CRL.R.C.(MD).No.201 of 2017 has not obtained the signature of P.W.4 in Ex.P.3 seizure mahazar. More over, P.W.5 has not chosen to recover or seize the counterfoil of the receipt issued by P.W.4 for the purchase of M.O.1/chain nor any ledger or accounts to show the alleged payment of Rs.48,000/- made by P.W.4 to the accused.
28.P.W.4 in his evidence would say that one Loganathan, who came along with the accused for selling thali chain has certified that chain was belonging to the accused and only thereafter, he had decided to purchase the jewels. It is pertinent to mention that the said Loganathan was neither cited as a witness nor examined before the trial Court. Even assuming that the alleged recovery is true, there is no material to connect the accused with the alleged recovery as the confession alleged to have been made by the first accused was not proved in accordance with law.
29.It is pertinent to mention that P.W.5 in his cross examination would admit that he had not written the confession statement, but the same was written by the constable, on his dictation. But the said constable, who had written the confession statement was neither cited nor examined before the trial Court.
30.P.W.4 in his evident would admit that there were no specific marks or identification to differentiate the M.O.1/Gold thali chain with other thali chain. http://www.judis.nic.in 15/22 CRL.R.C.(MD).No.201 of 2017 P.W.5 would also admit that there were no specific mark or identification in the seized jewels. P.W.7/Investigating Officer would say in her evidence that she has no role in the preparation of mahazar with respect to recovery of thali chain. It is pertinent to note that in Ex.P.3 seizure mahazar with respect to M.O.1/thali chain, P.W.5 has specifically mentioned the crime number, name of the police station and Section of law. Admittedly, P.W.5 was working as Sub-Inspector of Police in Pasupathipalayam Police Station at that time and he has no connection whatever with the Velliyanai Police Station. After arresting the accused at 08.30 am on 24.07.2009, he recovered the jewels from P.W.4 at 13.30 hours on that date. It is not the specific case of P.W.5 that after recording of the confession statement, he had immediately intimated about the arrest and recording of confession to the Velliyanai Police Station and got the case particulars. As rightly pointed out by the learned counsel for the petitioner, a cursory perusal of Ex.P.2 confession statement and Ex.P.3 mahazar and Ex.P.4 mahazar, which relate to two different police station, would only reveal that all the three documents were written by one and the same person.
31.Considering the above, this Court has no hesitation to hold that the prosecution has miserably failed to prove the recovery of M.O.1/thali chain in accordance with
Section 27 of Indian Evidence Act and that thereby failed to prove the connection between the accused and the occurrence. http://www.judis.nic.in 16/22 CRL.R.C.(MD).No.201 of 2017
(iii) Investigation :
32.P.W.7 would say in her evidence that since the accused were in judicial custody in connection with Pasupathipalayam Police Station, she effected formal arrest and produced them before the Judicial Magistrate. But on perusal of the records, it is seen that both the petitioners, as per the orders of District and Sessions Court, Karur, have surrendered themselves before the jurisdictional Magistrate and they were remanded to judicial custody and subsequently, they were granted bail. More over P.W.1 would say in her evidence that she had seen the accused at the police station. I am at loss to understand as to when and how the accused were brought to the Velliayanai Police Station, when they were not arrested directly by the respondent police.
33.It is the specific case of the prosecution that the incident was occurred at 09.15 am, on 04.03.2008 and the complaint was lodged at 02.00 pm, that P.W.7 had visited the occurrence place at 03.00 pm and prepared the observation mahzar and rough sketch and at 04.00 pm she recovered the gold beads, gold coin, amulet (thayathu) and thali thread at the occurrence place, through Ex.P.4 seizure mahazar. Admittedly, the incident was occurred in the mud road from semmadai to Manjanayakkanpatti. P.W.6, who is the brother of complainant's husband would say that after coming to know about the incident, he came to the http://www.judis.nic.in 17/22 CRL.R.C.(MD).No.201 of 2017 occurrence place, and that police came to that place at 10.00 O' clock and recovered small pieces of thali thread through seizure mahazar. In cross examination, he would say that he was informed about the occurrence at 10.30 am and immediately came to the occurrence place, that the complainant, his brother Subramani, maternal aunt's son Muniyappan and police were present and the general public 5 to 6 persons were also present at that time and that the police had obtained two signatures from him as a proof for examining him.
34.According to P.W.1, when her thali chain was snatched, gold beads, gold coin and gold thayathu have fallen to the ground, but she had not noticed at that time. Since the incident was occurred at 09.15. am, as rightly contended by the petitioners' counsel, the contention of the prosecution that the police recovered the gold jewels at 04.00 pm and that too, from a public place, nearly after seven hours is totally unbelivable.
35.Considering the above, as rightly contended by the learned counsel for the petitioner, it is highly doubtful as to whether P.W.7 had really visited the occurrence place at 03.00 pm and prepared the observation mahazar and rough sketch and recovered M.O.2 and M.O.3 at 04.00 pm. P.W.5 would say that he was not examined by the Sub-Inspector of Police Velliayanai Police Station, but P.W.7 would say that he examined the confession statement witnesses, P.W.4 http://www.judis.nic.in 18/22 CRL.R.C.(MD).No.201 of 2017 Rajalingam and P.W.5 / Chandramohan, Sub-Inspector of Police and recorded their statements.
36.Though P.W.5 has referred about the special team formed by the Superintendent of Police, he has not stated anything about the purpose for which, the special team was formed. Even according to the prosecution, M.O.1/thali chain was recovered by P.W.5/Chandiramohan, the then Sub-Inspector of Police, Pasupathipalayam Police Station. In Ex.P.9/Form-95 relating to M.O.1/thali chain, it has been stated that one V.K.Govindsamy, Sub-Inspector of Police, Velliyanai Police Station has recovered the thali chain and in that From-95, it is nowhere stated that P.W.5 had handed over the jewel to the Velliyanai Police station.
37.On considering the entire facts and circumstances and also the facts that the person, who wrote Ex.P.2 confession statement and Ex.P.3/seizure mahazar for the recovery made by P.W.5/Sub Inspector of Police, Pasupathipalayam Police Station also wrote Ex.P.4/seizure mahazar for the recovery made by the Sub-Inspector of Police, Velliyanai Police Station (P.W.7), that the mentioning of the particulars of Police Station, crime number and Section of law in Ex.P.3/seizure mahazar and also the contradictions found in the evidence of P.W.5 and P.W.7 Sub-Inspectors of Police, as rightly contended by http://www.judis.nic.in 19/22 CRL.R.C.(MD).No.201 of 2017 the learned counsel for the petitioners, a serious doubt arises that after arresting the accused, the Sub-Inspectors of Police, Pasupathipalayam Police Station and Vangal Police Station, who were alleged to be the members of the special team, after due deliberation, consultation and discussion with Velliyanai Police, have implicated the accused with the case pending in Velliyanai Police Station and that after coming to know about the arrest of the accused and the alleged recovery, the Velliyanai Police after conducting the name-sake investigation, filed the final report. Considering the above, this Court has no hesitation to hold that the investigation is tainted.
38.Generally, the Courts of law shall not be carried away by mere sentimentalities or the conjunctures or surmises or the status of the accused as habitual offender, but bound to proceed on the basis of legal evidence alone.
39.In the case on hand, on perusing the entire evidence, this Court is of the view that the trial Court as well as the Appellate Court have not appreciated the evidence adduced in the above case in its proper legal perspective and misread the evidence. Moreover, this Court is constrained to hold that both the Courts have only adopted erroneous approach, misconception of law and misappreciation of evidence and that therefore, they have become vitiated. Hence, this Court decides that the prosecution has miserably failed to establish http://www.judis.nic.in 20/22 CRL.R.C.(MD).No.201 of 2017 the guilt of both the accused beyond reasonable doubt and consequently, this revision case is liable to be allowed.
40. In the result, the revision succeeds and stands allowed and the concurrent judgments rendered by the learned Judicial Magistrate No.II, Karur in C.C.No.179 of 2010, dated 02.01.2017 and the learned Additional District Judge (Fast Track Mahalir Court), Karur in C.A.No.3 of 2017, dated 31.01.2017 are hereby set aside. Both the petitioners/accused are hereby acquitted of all charges. Bail bond, if any shall stand cancelled.