Madras High Court

Jahir Hussain vs State Rep. By on 8 June, 2022

                                                           1

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED 08.06.2022

                                                         CORAM

                     THE HONOURABLE Mr.JUSTICE D.BHARATHA CHAKRAVARTHY

                                                Crl.A.No.750 of 2019
                    Jahir Hussain                                                  .. Petitioner
                                                           Vs.


                    State rep. by
                    Inspector of Police,
                    Law and Order,
                    C-1 Flower Bazaar Police Station,
                    Chennai - 600 001.
                    (Crime No. 1196 of 2016)                                       .. Respondent

                    Prayer: Criminal Appeal filed under Section 374(2) of Criminal Procedure
                    Code, to set aside the conviction and sentence passed against the Appellant in
                    S.C.No.145 of 2017 dated 07.08.2019 passed by Learned II Additional
                    Sessions Court, Chennai.


                                        For Petitioner     : Ms.A.Seetha

                                        For Respondent     : Mr.S.Vinoth Kumar
                                                             Government Advocate
                                                             {Criminal Side}




https://www.mhc.tn.gov.in/judis
                                                             2



                                                       ORDER

This Criminal Appeal has been filed to set aside the conviction and

sentence passed by Learned II Additional Sessions Judge, Chennai, against

the Appellant in S.C.No.145 of 2017 dated 07.08.2019.

2. The sole accused, who was convicted by the judgment of the learned

II Additional Sessions Judge, Chennai in SC.No.145 of 2017 for the alleged

offence under Sections 341, 294(b), 336, 427, 397 and 506(ii) of IPC, is on

appeal before this Court.

3. The case of the prosecution is that one Pachaimuthu/defacto

complainant / P.W.1, is a native of Perambalur Distict and he is eking out

his livelihood by running a fish cart at Mint Street in Chennai. When he was

walking at about 7.15 a.m. on 14.10.2016, the accused hit on his shoulder

and abused in filthy language and demanded money by brandishing a knife

and the accused forcibly took Rs.650/- from the defacto complainant at knife

point. The two other persons nearby started chasing him. He threw stones at

the defacto complainant and then ran away. Thereafter, P.W.1 went to the C1

Flower Bazaar Police Station and lodged a complaint, in which an F.I.R. was

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registered in Crime No.1196 of 2016 for the offences under Sections 341,

294(b), 336, 427, 397 and 506(ii) of IPC. P.W.4, namely, M.Elavarasu,

Inspector of Police took up investigation and filed the final report which was

taken on file as P.R.C. No.42 of 2017 and after duly furnishing of copies as

per Section 207 of Cr.P.C.,the case was committed to the Principal Sessions

Judge, Chennai, thereafter, the case was made over to the Trial Court and

taken on file in S.C.No. 145 of 2017. Upon framing of charges, the appellant

denied the charges and thereby stood trial.

4. The prosecution has examined the defacto complainant namely,

Pachamuthu as P.W.1, One Dharmaraj-witness to the Observation Mahazar

as P.W.2, One S.Ramesh Kumar, Sub-Inspector of Police, who registered the

FIR as P.W.3 and the Investigation Officer namely Elavarasu as P.W.4. On

behalf of the prosecution, the complaint which was reduced to writing, was

marked as Ex.P1, the Observation Mahazar was marked as Ex.P2 and the

FIR was marked as Ex.P3 and Rough Sketch was marked as Ex.P4 and

Recovery Mahazar was marked as Ex.P5 and Form 95 was marked as Ex.P6.

One knife recovered upon the alleged confession of the appellant was

marked as M.O.1 and cash, which was alleged to have been recovered being

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the sum of Rs.150, was marked as M.O.2 and the prosecution registered the

case. Upon being questioned under Section 313 of Cr.P.C. about the

evidence and incriminating circumstances, the appellant denied the same as

false. Thereafter, there was no evidence let in on behalf of the defence and

the Trial Court proceeded to consider the evidence on record and by a

judgment dated 7.08.2019, while acquitting the appellant for the charges

under Section 294(b) and 336 of IPC, convicted the appellant for the offence

under Sections 341, 392 r/w.397 and 506(ii) of IPC and imposed a sentence

of rigorous imprisonment for a period of one month for offence under

section 341 of IPC and rigorous imprisonment for a period of 10 years for

the offence under Section 397 of IPC and a fine of Rs.1000/- in default to

undergo simple imprisonment for one month and also rigorous imprisonment

for a period of 5 years for the offences under Section 506 (ii) of IPC.

Aggrieved by the same, the present appeal is filed before this Court.

5. Heard the learned counsel for the appellant and the learned

Government Advocate (criminal side).

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6. The learned counsel, by taking this Court through the charge and

evidence on record, contended that on a bare perusal of the FIR and the

evidence of P.W.1, she had made contrary submissions and as such her

evidence is untenable. It is her further submission that the alleged recovery

shown by the P.W.4 containing so many other articles including 4 laptops, 1

black colour bag and 4 keys in one keychain etc., along with sum of Rs.150

and the knife, is extremely artificial and the same itself shows that the case is

a put up case by the respondent police and such incident never happened. She

would further submit that except examining P.W.1, even though in the FIR

itself it is clearly mentioned that two other persons also chased the accused

and there were other members of the public, not even a single other witness

is examined by the prosecution and except P.W.1, and P.W.2, who was the

mahazar witness and P.W.3, who had registered the FIR and P.W.4 the

Investigating officer, there are no other witnesses examined in this case.

Therefore, she would submit that there is absolutely no corroborative

evidence or materials so as to convict the appellant.

7. Taking this Court through judgment of the Trial Court, she would

point out that after considering the evidence in Paragraph 14, the Trial Court,

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without any application of mind, had simply returned the finding only based

on the appellant roving allegation and without satisfaction itself as to be very

many infirmities in the investigation and lack of evidence, the finding has

been given.

8. Per contra, the learned Government Advocate would submit that in

this case P.W.1 has narrated about the incident and the money has been

recovered and the knife has also been recovered pursuant to the confession

and mark as M.Os 1 and 2. Therefore, no further evidence is necessary to

corroborate the same and would defend the Trial Court judgment.

9. I have considered the rival submissions, perused the material on

records of this Case.

10. It may be seen from the evidence in chief of PW1 in this case that

on 14.10.2016, the occurrence took place at 7.15 a.m. and he was taken to the

Police Station at 3.00 p.m. on the same day, where, he identified the accused.

It is useful to extract the said portion of the evidence.

                                   "mjd;     gpwF md;iwa jpdk; 3/00 kzp mstpy;

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                              nghyPrhh;   vd;dplk;      te;J    fhty;   epiyaj;jpy;     vjphpia

milahsk; fhl;LkhW miHj;jhh;/ ehd; fhty; epiyak; brd;W vjphpia milahsk; fhl;ondd;/"

11. Therefore, the prosecution case suffers from the fact that no

identification parade has been conducted and the accused was identified in

the Police station itself. This apart, as rightly contended by the learned

counsel for the appellant, the entire recovery seems to be artificial and it is

relevant to extract the cross examination of investigation officer- PW4 which

is as follows:

"gpd;gw [ k; vjphpf;F bjhpe;j rpf;jPf; vd;gthplk; bfhLj;J itj;jpUe;j 4 yhg;lhg;fs;. fUg;g[ fyh; ngf; xd;W. rhtp ml';fpa rhtp bfhj;J. fhh; rhtpa[ld; Toa lhh;;r; iyl;. Mfpatw;iw ifg;gw;wpndd;/ nkw;go yhg;lhg;fs; kw;Wk; ,ju bghUl;fs;. ,e;j tHf;fpy; Fw;w vz;zpy; jhd; ifg;gw;wpndd; vd;why; rhpjhd;/ nkw;go yhg;lhg;fs; kw;Wk; ,ju bghUl;fis ve;j ePjpkd;wj;jpy; ve;j Fw;w vz;zpy; xg;gilj;njd; vd;why; rk;ge;jg;gl;l ePjpkd;wj;jpy; xg;gilf;fg;gl;L chpa tHf;fpy; xg;gilf;fg;gl;lJ/ nkw;go tpraj;ij ehd; vdJ Fw;w ,Wjp mwpfi ; fapy; brhy;ypa[s;nsdh vd;why; ,y;iy/"

Again further in his evidence,he has stated as follows:

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",e;j tHf;fpy; ehd; ifg;gw;wpa bghUl;fSf;Fk; ,e;j tHf;fpw;Fk; ve;j rk;ge;jKk; ,y;iy vd;W brhd;dhy; rhpay;y/ PUgha; 650 bfhs;is nghdjhf g[fhh; bfhLj;jjpy; kPjk; 500 vd;d MdJ vd;W vdJ tprhuizapy; brhy;ypa[s;nsdh vd;why; brhy;ytpyi ; y/"

12. It is in this context the original FIR registered became significant,

which runs as follows:

" vdf;F cly; eyf; Fiwt[ Vw;gl;l fhuzj;jpdhy;

                              ehd;   G.H.    kUj;Jtkidf;F rpfpri
                                                               ; rf;fhf ,d;W 14/10/2016
                              njjp fhiy 07/15 kzpf;F kpzl; ; bjU             K.V   Iah; fil

mUfpy; ele;J nghFk; nghJ vjph;jpirapy; ,Ue;J Rkhh; 32 taJ kjpf;fjf;f egh; vdJ tyJ njhs;gl;il ,oj;jhd;/ ehd; mtdplk; Vz;lh ,oj;jha; vd;W nfl;nld;/ mtd; vd;id ghh;j;J Xj;jh. njtpoah igah. ehd; ahh; bjhpa[kh ehd; g[spae;njhg;g[ $hfph; cnrd; vd; ngh; nfl;lhy; Cnu eL';Fk; vd;W brhy;yp bfhz;L kiwj;J itj;jpUe;j fj;jpia vLj;J Xj;jh fj;jpahy; Fj;jp tpLntd; vd;W brhy;yp bfhz;L vd; ,Lg;gpy; itj;J mGj;jp bfhz;L vd; rl;il ghf;bfl;oy; ,Ue;j PUgha; 650 gzj;ij vLj;Jf; bfhz;lhd;/"

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13. Therefore, I have no hesitation in holding that the case of the

prosecution palpably and undoubtedly suffers from serious infirmities and

inconsistencies in the evidence and the Trial Court erred in convicting the

appellant on the basis of the evidence available on record. I am of the view

that the appellant is entitled for the benefit of doubt. Accordingly, this appeal

is allowed the appellant is acquitted of all the charges. Fine amount, if any,

paid is to be refunded to the appellant. Bail bonds executed, if any, stand

cancelled.

08.06.2022

Index :Yes/No Internet:Yes/No Speaking/Non speaking order

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