Madras High Court
Velmurugan vs The State on 23 December, 2021
Crl.R.C.No.1450 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.12.2021
CORAM:
THE HONOURABLE MS.JUSTICE R.N.MANJULA
Crl.R.C.No.1450 of 2016
Velmurugan ... Petitioner
Versus
The State
Rep. by Inspector of Police,
Erode Taluk Police Station,
Erode District.
(Crime No.144/2015) ... Respondent
PRAYER: Petition filed under Sections 397 & 401 of the Criminal
Procedure Code, to call for the records on the file of the learned 1st
Additional Sessions Judge, Erode, Erode District in Crl.A.No.82/2016 dated
02.09.2016 and confirming the Judgment and sentence passed in
C.C.No.37/2015 dated 16.03.2016 on the file of the learned Judicial
Magistrate, No.I, Erode, Erode District, and to set aside the Judgment dated
02.09.2016.
For Petitioner : Ms.P.Selvi, Legal Aid Counsel
For Respondent : Mr.A.Gopinath,
Government Advocate (crl.side)
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Crl.R.C.No.1450 of 2016
ORDER
This Criminal Revision Case has been filed, challenging the judgment
made in Crl.A.No.82/2016 dated 02.09.2016 by the learned 1st Additional
Sessions Judge, Erode, Erode District, confirming the Judgment and
sentence passed in C.C.No.37/2015 dated 16.03.2016 on the file of the
learned Judicial Magistrate, No.I, Erode, Erode District.
2.The case of the prosecution is that on 23.4.2015 at about 03.15
a.m., when P.W.1 along with his wife-Geetha (P.W.2) and his daughter-
Varsha (P.W.10) was sleeping in his house, the accused 1 to 3 came in a
motor cycle bearing Registration No.TN-20-BH-9374; the 1st and 2nd accused
trespassed inside the house of P.W.1 by break-open the door; the 3rd accused
was standing outside the house to watch whether anyone was coming; the
2nd and 3rd accused went inside the house and threatened the de facto
complainant-P.W.1, his wife (P.W.2) and daughter (P.W.10); thereafter,
they robbed the jewels worth about Rs.2,50,000/- from the bereau, and
immediately ran away from the place of occurrence. On the complaint given
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Crl.R.C.No.1450 of 2016
by P.W.1, a case was registered under Sections 458 and 392 of IPC by the
Sub-Inspector of Police (P.W.8), who in turn submitted the FIR to
Mr.Kannan, (P.W.11)/ Inspector of Police. P.W.11 took up the case for
investigation. He went to the place of occurrence, prepared Ex.P.2-
Observation Mahazar; Ex.P.12-Rough Sketch in the presence of the
witnesses and also enquired some of the witnesses.
3.On 25.05.2015, at about 04.00 am., when the P.W.11-Inspector of
Police was engaged in the vehicle check up, he arrested the accused 1 and 3
and recorded the confession statements given by A1-Ravi and A3-
Velmurugan. He also recovered the material objects, M.O's.8 and 9 under
the Seizure Mahazar-Ex.P.6. Thereafter, based on the confession statements
made by the accused 1 and 3, it is found that they were involved in some
other cases also, and properties pertaining to the other case was also
recovered in the presence of witnesses. On 28.05.2015, P.W.11-Inspector of
Police, arrested A2-Venkatesh at Perumanallur bus stop and recorded his
confession statement in the presence of witnesses. He also seized M.O.1 vide
Ex.P.8-Seizure Mahazar. After completing the investigation, P.W.11 filed
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Crl.R.C.No.1450 of 2016
charge sheet against the accused 1 and 2 for the offences under Sections 458
and 392 of IPC and as against the 3rd accused for the offences under
Sections 458 and 392 r/w 34 IPC.
4.When the accused were questioned before the Trial Court, they
denied the charges as false and hence, the trial was commenced. During the
course of trial, on the side of the prosecution, 11 witnesses were examined
as PW1 to PW11; 18 documents were marked as Exs.P1 and P18 and 9
Material Objects were marked as M.O's.1 to 9. On the side of the defence,
no witness was examined and no document was marked.
5.After completion of trial and on considering the materials available
on record, the learned trial Judge found the accused guilty for the offences;
convicted and sentenced them as mentioned below:
for A1 and A2:
Offence Punishment Imposed
Section 458 of IPC To undergo three years rigorous imprisonment
and to pay a fine of Rs.100/- in default SI of
three months
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Crl.R.C.No.1450 of 2016
Offence Punishment Imposed
Section 392 of IPC To undergo three years rigorous imprisonment
and to pay a fine of Rs.100/- in default SI of
three months
for A3:
Offence Punishment Imposed
Section 458 of IPC To undergo three years rigorous imprisonment
and to pay a fine of Rs.100/- in default SI of
three months
Section 392 r/w 34 of To undergo three years rigorous imprisonment
IPC and to pay a fine of Rs.100/- in default SI of
three months
6.Aggrieved over the same, the accused 1 and 3 have preferred an
appeal in C.A.No.82 of 2016 before the Sessions Court and the same also
came to be dismissed by confirming the judgment of the trial Court. Hence,
the petitioner/3rd accused has preferred the present Criminal Revision Case.
7.Heard the learned counsel for the revision petitioner and the learned
Government Advocate (Crl. Side) appearing for the respondent and perused
the materials available on record.
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Crl.R.C.No.1450 of 2016
8.Point for consideration:-
“Whether the judgment of the 1st appellate Court made in
Crl.A.No.82/2016 dated 02.09.2016 is just and proper?”
9.The revision petitioner before me is the 3rd accused. The 3rd accused
is said to be standing outside of the house of P.W.1, at the time of
occurrence. So, he could not have been noticed by the defacto complainant
or any of his family members. 3rd accused has been implicated in the case
only based on the confession statements given by A1 and A2. After the
recovery was made from A1 and A2, the present revision petitioner (A3) was
implicated in this case and he was arrested subsequently. The learned Trial
Judge, while recording the reasons for convicting A3, has stated that his
involvement in the offence is clear from the confession statement given by
A1 and A2. Except the confession statement, A3 was not identified by any
of the witnesses and therefore, there is no incriminating evidences and
circumstances shown against him.
10.Even the learned Trial Judge has observed in his judgment that
P.W.1 and 2 may not be aware of the presence of A3 and the involvement of
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Crl.R.C.No.1450 of 2016
A3 came to light only upon the confession statements given by A1 and A2.
Though the said confession might be helpful for investigation to prove the
guilt of the accused before the Court, it is a weak piece of evidence only.
Further, the P.W.11- Investigation Officer arrested both A1 and A3 on the
same day. If the involvement of A3 is revealed only on the basis of the
confession given by the co-accused, it is not possible for the Investigation
Officer to arrest A3 along with A1. It has been made clear from the evidence
of the prosecution that A3 had no direct involvement in the offence and he is
said to have been guarding the house by standing outside. No one has
identified A3. Even after the arrest of A3, P.W.1, 2 did not know the
involvement of A3 in the offence. Even before the confession statement of
A1, A3 was arrested along with A1. These contradictory facts revealed
from the evidence of prosecution, ought to have been appreciated by the
learned Trial Judge in proper perspective in order to give benefit of doubt to
A3. Since, A3 has been convicted only based on the confession of the co-
accused and there is no other evidence which connects A3 to the crime, I feel
that the judgment of the Courts below have to be set aside as against the 3rd
accused alone.
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Crl.R.C.No.1450 of 2016
11.In the result, the Criminal Revision Case is allowed and the
judgment of the learned 1st Additional Sessions Judge, Erode, Erode
District, dated 02.09.2016 made in Crl.A.No.82/2016 is set aside.
23.12.2021
Speaking / Non-speaking Order
Index : Yes/No
Internet : Yes / No
Jer
To:
1) The I Additional Sessions Judge,
Erode, Erode District.
2) The Judicial Magistrate, No.1,
Erode, Erode District.
3) The Inspector of Police,
Erode Taluk Police Station,
Erode District. (Crime No.144/2015)
4) The Public Prosecutor,
High Court of Madras.
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Crl.R.C.No.1450 of 2016
R.N.MANJULA, J.,
Jer
Order made in
Crl.R.C.No.1450 of 2016
Dated:
23.12.2021
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