(The judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the learned Additional Sessions Division, Chengleput, made in S.C.No.34 of 2004 whereby the appellant along with 4 others, stood charged, tried and found guilty under sections 302 r/w 149, 364, 396 and 201 IPC and was awarded life imprisonment for the offence under section 302 r/w 149 IPC and three years rigorous imprisonment for the other offences each along with fine and default sentences. The other accused/A2 to A5 were acquitted of the charges levelled against them.
2. The short facts necessary for the disposal of this appeal can be stated as follows:
(a) P.W.2 is the son and P.W.3 is the wife of the deceased. The deceased was having a car, Tata Sumo-M.O.4, bearing registration No.07-5534 and he used to park his vehicle at Picnic Hotel near Central Railway Station, Madras and take the car from there. On 17.7.2002 morning, the deceased informed his family members and left the house. He used to come home at night hours. If he is not able to come at night hours, he used to inform his family members. On 17.7.2009, he did not come home that night. He informed his family members that he was taking the car to Mahaballipuram and told that he would return home the next morning but he did not return home. The family members searched for him. In the meanwhile, when P.W.1, Village Assistant was going to Village Administrative Officer, Pattipulam near East Coast Road at 4.00 p.m., he saw the dead body of the deceased with injuries. He informed the same to P.W.6, Village Administrative Officer.
(b) P.W.6 proceeded to the respondent Police Station and gave a complaint Ex.P.3. On the strength of the said complaint,Ex.P.3, a case came to be registered directly under
section 302 IPC in Crime No.271/2002 Thereafter, the F.I.R. Ex.P32 was despatched to Court.
(c) P.W.22, Inspector of Police took up investigation. He proceeded to the spot, made an inspection and prepared the observation mahazar Ex.P.1 in the presence of witnesses and drew a rough sketch Ex.P.34. He recovered the material objects from the place of occurrence. Then, he conducted inquest on the dead body of the deceased in the presence of witnesses and panchayatdars and prepared the inquest report, Ex.P.35. Then, the dead body was sent for the purpose of autopsy.
(d) Pursuant to the requisition made, P.W.18 doctor attached to the Government Hospital conducted autopsy and gave his opinion as a witness before the Court and through the contents of the post mortem certificate Ex.P.12 that the deceased would appeared to have died of the injuries sustained by him on the neck. Pending investigation, A1 was arrested on 26.2.2003. He came forward to give confessional statement and the same was recorded in the presence of P.W.19 and P.W.20. The admissible part of the confessional statement given by A1 was marked as Ex.P36, pursuant to which, he produced M.O.7 gold chain which was also recovered under a cover of mahazar. He identified A2 and A2 was also arrested. He came forward to give confessional statement and the same was recorded. The admissible part of the confessional statement given by A2 was marked as Ex.P24. Pursuant to the confessional statement, he produced M.O.8 Tata Sumo Luggage Carrier. Thereafter, A3 was identified and arrested. He came forward to give confessional statement. The same was recorded and the admissible part of the same was marked as Ex.P.26, pursuant to which he produced M.O.9 knife. A4 was also identified and arrested. He also came forward to give confessional statement. The admissible part of the same was marked as Ex.P.28. Thereafter A5 was arrested. He came forward to give confessional statement and the admissible part of the same was marked as Ex.P.29, pursuant to which M.O.11 nylon rope was produced by him. Thereafter, all the accused were sent for judicial remand.
(e) Pending investigation, P.W.21 a car broker of a travel agent came and gave statement to the effect that he arranged a car for A1 on the particular day. Accordingly, the statement was recorded and sent to Court. On intimation given for conduct of identification parade by the Chief Judicial Magistrate , identification parade was conducted by P.W.15 Judicial Magistrate, Madhuranthagam. P.W.21 identified A1 and the identification parade proceedings was marked as Ex.P.8. Following the same, the statement of witnesses P.Ws. 7, 8, 9 was recorded. After completion of the investigation, the investigating officer filed the final report.
(f) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges, the prosecution examined 24 witnesses and relied on 38 exhibits and 11 material objects. On completion of the evidence on the side of the prosecution the accused were questioned under
section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses and they denied them as false. No defence witness was examined. The Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt as far as A1 was concerned and found him guilty as per the charges and awarded the punishments as referred to above. The trial Court has acquitted A2 to A5, since the case was not proved as against them. Hence, this appeal at the instance of the appellant/A1.
3. Advancing the arguments on behalf of the appellant/A1, the learned counsel Mr.R.Vijayakumar would submit that the trial Court has taken an erroneous view and has rendered the judgement of conviction as against A1/appellant but the trial Court did not believe the evidence adduced by the prosecution side and has passed an order of acquittal insofar as A2 to A5 while A1 alone was found guilty of the charges. The occurrence has taken place on 17.7.2002. The report was received from P.W.6 by the Sub Inspector of Police The case was originally registered under
section 302 IPC and subsequently on information given by P.W.2, son of the deceased that the jewels and the TATA Sumo car were found missing, the case was altered to
Section 379 IPC also. The learned counsel for the appellant would further submit that in the instant case, the prosecution had no direct evidence to offer. The prosecution relied on the evidence of P.W.21, a travel agent and also a car broker. According to him, on 15.7.2002, A1 approached him and asked a car to go to Mahaballipuram and he got his cell number The next day, he contacted and engaged the car of the deceased. To that extent P.W.21 has given evidence. It is a matter of surprise to notice, insofar as 161 statement of P.W.21 is concerned, though it is claimed by the witnesses to have been recorded 4 days from the date of occurrence and also by the investigating officer, within 10 days from the date of occurrence, it has reached the court after a long time i.e., on 4.8.2003,after one year.
4. It is pertinent to point out that even the identification parade has taken place long before. If to be so, these witnesses would have been introduced, in order to strengthen the prosecution case. Apart from this, the identification parade has taken place on 17.3.2003. It is quite unnatural the witness who has participated in the identification parade has given such a statement. Thus, he is unable to identify any one of the other accused. The belatedly recorded statement has reached the Court after one year after the occurrence was over, i.e., five months after the conduct of identification parade which would cast a doubt in the evidence adduced by the prosecution witness. Hence, the trial Court should have discarded the evidence of P.W.21.
5. Added further learned counsel, the Investigating Officer would claim that A1 was arrested on 26.2.2003 and he gave confessional statement and the same was recorded in the presence of P.W.19 and P.W.20. P.W.19 has turned hostile. P.W.20 has turned hostile in part, relating to the evidence of P.W.20 to the extent of recovery of M.O.7 chain alone. So far as the recover of the chain is concerned, it is highly doubtful. The occurrence has taken place on 17.7.2002 but it has been recovered on 26.2.2003. It is also highly doubtful whether a person who had robbed the jewels would wear the same even after a period of seven months. Apart from that, so far as the recovery is concerned, three placed were shown as the place of recovery. According to P.W.20 it was recovered nearby the house of A1. According to the recovery mahazar, it was recovered just opposite to the house of A1. So far as the investigating officer is concerned, he has deposed that the accused removed the chain from the neck and handed it over to him.
6. The learned counsel would further submit that presumption under
Section 114-A of the Indian Evidence Act has got to be applied when the accused is in custody of stolen property within a reasonable time from the time of occurrence. In the instant case, from the evidence of the prosecution it is seen that presumption available under
Section 114-A of the Indian Evidence Act cannot be applied, since the occurrence has taken place on 17.7.2007 and the recovery was made only on 26.2.2003. Hence, there was a long interval. The learned counsel would submit that except this two pieces of evidence, namely, the evidence of P.W.21 and also the arrest and recovery, the prosecution had no further evidence to offer.
7. The learned counsel would urge that when the evidence adduced by the prosecution was not available before the Court insofar as the other accused are concerned, they are ordered to be acquitted and on the strength of the very same evidence, the appellant alone cannot be convicted. In support of his contention, the learned counsel for the petitioner relied on the decision of the Apex Court reported in 1978 Crl.L.J. 1101 (Achhey Lal v. State of U.P.)Following the said proposition of law, it is a fit case where the appellant has got to be acquitted. The trial Court failed to consider these aspects and has taken an erroneous view and convicted the appellant. Hence, the appellant is entitled for acquittal in the hands of this Court.
8. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.
9. It is not in controversy that the dead body of one Nelson was found by P.W.1 Village Menial near the sea shore and he gave information to P.W.6 Village Administrative Officer. P.W.6 gave a complaint to the respondent Police and a case came to be registered under
section 302 I.P.C. and the F.I.R. was sent to the concerned Court. Thereafter, P.W.2 son of the deceased brought to the notice of the Investigating officer that the jewels and the Tata Sumo car of the deceased were found missing and hence, the case was altered to
section 302 r/w 379 IPC and the amended F.I.R. was also despatched to Court. After preparation of the inquest report by the investigator the dead body was subjected to post mortem. P.W.18 doctor gave his opinion that the deceased would appear to have died due to the injuries sustained on the neck. Thus, the prosecution is able to show that the death was due to homicidal violence. The fact that the deceased died due to homicidal violence was never disputed by the appellant before the trial Court and before this court. Hence, no impediment is felt by this Court in recording that the deceased died out of homicidal violence.
10. In order to substantiate that it was A1 who engaged a car, Tata Sumo which was actually owned by the deceased on the date of occurrence i.e., 17.7.2002 and caused his death after robbing his jewels and the car, the prosecution had no direct evidence to offer but rested its entire case exclusively on circumstantial evidence. It is needless to say, in a case where the prosecution rested the case on circumstantial evidence, a duty is cast upon the prosecution to place and prove necessary circumstances, which should form a complete chain without a snap, pointing to the hypothesis that except the accused no one could have committed the offence. After applying this test, the Court is able to see that the prosecution had sufficient materials to prove the case by way of circumstances pointing to the guilt of A1/appellant.
11. The occurrence has taken place on 17.7.2002. P.W.21 was actually an unregistered car broker who used to eke his livelihood only through that process. According to him, on 15.7.2002, A1 approached him and asked for a car to go to Mahaballipuram. He also told him that the fair for ordinary car was Rs.1100/- per day and the fair for A/c car was Rs.1800/-per day. He also enquired some travel agent and gave him reply and thereafter, A1 left from there. He got the cell number and left the place. A1 asked P.W.21 about the car, the next day. P.W.21 in turn replied that car is ready, if he come in person, he can arrange for the car on the next day, that was, on 17.7.2002. A1 met P.W.21 and it was A1 who arranged the car for the deceased. P.W.21 saw A1 sitting in the front seat of the car and some other persons were sitting in the back seat of the car and the car was driven by the deceased to Mahaballipuram. From the evidence of P.W.21, it is quite clear that it was he who engaged the car in the evening hours of 17.7.2002 and thereafter, the car was stolen along with the chain owned by the deceased and the dead body of the deceased was found by P.W.1 on the sea shore and he gave information to P.W.1 Village Administrative Officer who in turn gave a complaint to the Police.
12. Much comment was raised by the learned counsel for the appellant insofar as the evidence of P.W.21 is concerned. In the instant case, P.W.21 would claim that he was enquired by the police after four days. According to the investigating officer, P.W.21 was enquired after 10 days from the date of occurrence. However, the Court is of the opinion that the narration of the entire incident, that too, by a car broker like him cannot be brushed aside. The Court is unable to see any reason or circumstance brought to the notice of the court by the appellant side that P.W.21 would come forward to give falsehood. It is a case where identification parade has been conducted on 17.3.2003 by the Judicial Magistrate, Madhuranthagam and A1 alone was identified and not the other accused. The Court is unable to see anything to interfere or find any lacunae in the identification parade.
13. Added circumstances is the recovery of M.O.7 chain which was owned by the deceased at the time of occurrence The same was identified by P.Ws. 2 and 3. Learned counsel brought to the notice of the Court that there are discrepancies regarding the place of recovery of M.O.7 but that is only a minor discrepancy which could be found in the recovery mahazar and also from the evidence of the witnesses. But one thing is clear that the recovery of M.O.7 was made from A1 as per the evidence of P.W.20 in front of the house under a cover of mahazar. Now, the contention of the learned counsel for the appellant that the said recovery is made long after the occurrence, therefore presumption available under
section 114A of the Indian Evidence Act cannot be applied, cannot be accepted since M.O.7 chain was in his custody of A1 which belonged to the deceased. Therefore, the custody of M.O.7-chain by A1 coupled with the evidence of P.W.21 would go to show that except A1, no one could have committed the offence.
14. The learned counsel also pointed out that the injuries what was actually found on the neck was not caused by A1 but by some other accused. It is pertinent to point out that while the prosecution is able to show that it was A1 who took the deceased and caused his death after robbing the car and jewels, it is the special knowledge of the accused who could speak about the cause of death of the deceased. The factum of robbery of gold chain and car of the deceased was proved by the prosecution. The above two circumstances were strongly proved by the prosecution against A1. The Court is unable to see any merit in the contentions putforth by the learned counsel for the appellant. The contention of the learned counsel for the appellant that A1 was also on the same footing as to the other accused who were acquitted by the trial court and he is entitled for acquittal on the same reasoning cannot be countenanced in law. The prosecution has sufficiently proved through the evidence pointing to the guilt of A1 that it was he who caused the death by stealing the jewels and the car. Therefore, the trial court has rightly convicted him under sections 302 r/w 149, 364, 396 and 201 IPC. This Court finds no reason to interfere with the judgment passed by the trial Court.
15. In the result, the appeal fails and the same is dismissed confirming the judgment of conviction and sentence passed by the trial Court. It is reported that the appellant is in bail. The learned Sessions Judge shall take steps to secure the presence of the appellant/A1 and commit him to prison to undergo the period of sentence.