Madras High Court
Murugan vs The State Represented By on 6 July, 2023
Crl.A.No.15 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.07.2023
CORAM
THE HON'BLE Mr. JUSTICE R.SURESH KUMAR
AND
THE HON'BLE Mr. JUSTICE K.KUMARESH BABU
Criminal Appeal No.15 of 2018
1.Murugan
2.Gowtham ... Appellants/3rd and 4th Accused
Vs.
The State represented by,
The Inspector of Police, L&O,
R10 MGR Nagar Police Station,
Chennai – 600 083. ... Respondent/Complainant
Prayer : Appeal filed under Section 374 of Criminal Procedure Code praying
to set aside the conviction and sentence imposed on the appellant in
S.C.No.192 of 2015 on the file of the learned Sessions Judge, Mahila Court
at Chennai dated 02.01.2018.
For Appellants : Mr.V.Krishnamoorthy
For Respondent : S.Raja Kumar
Additional Public Prosecutor
1/16
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Crl.A.No.15 of 2018
JUDGMENT
(Judgment of the Court was delivered by R.SURESH KUMAR, J.)
This appeal has been preferred against the conviction and sentence
made by the Sessions Judge, Mahila Court, (Mahalir Neethimandram),
Chennai dated 02.01.2018 in S.C.No.192 of 2015 in P.R.C.No.37 of 2015
on the file of XXIII M.M., Saidapet, Chennai in respect of A3 and A4 who
are the appellants herein for the offence punishable under Section 411 r/w.
34 I.P.C.
2. In fact, it is a case of murder, with regard to the said offence under
Section 302 I.P.C., charge had been framed only against 1 st and 2nd accused.
Insofar as the 3rd, 4th and 5th accused are concerned, charge was framed for
the offence punishable under Section 411 r/w. 34 I.P.C. The trial Court, in
the judgment impugned, convicted and sentenced A1 and A2 for the
offences under Section 450, 302 and 380 r/w. 34 I.P.C.
3. In respect of A3 and A4, the trial Court convicted these two
appellants under Section 411 r/w. 34 I.P.C. Insofar as A5 is concerned, he
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Crl.A.No.15 of 2018
has been found not guilty for the offence under Section 411 r/w. 34 I.P.C.
accordingly, he has been acquitted.
4. As against the conviction and sentence for A1 and A2, the learned
counsel appearing for the present appellants as well as the learned
Additional Public Prosecutor stated that there has been no appeal.
5. Insofar as the present appeal is concerned, it is filed by the A3 and
A4 as against the conviction and sentence of 6 months with fine of
Rs.5000/- for the offence punishable under Section 411 r/w. 34 I.P.C.
6. Heard Mr.V.Krishnamoorthy, learned counsel appearing for the
appellants and Mr.S.Raja Kumar, learned Additional Public Prosecutor
appearing for the respondent.
7. According to the prosecution, the charge made against the
appellants/A3 and A4 along with A5 reads thus:
“ehd;fhtjhf -
nkw;go rk;gtj;jd; bjhlh;r;rpahf. 1tJ
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Crl.A.No.15 of 2018
vjphpahfpa ePh; kPjk; ,Ue;j xU jhyp brapid
kJuhe;jfj;jpy; cs;s 4tJ vjphpahfpa ck;kplk; mlF
itf;fr; brd;w nghJ ePh; mjid jpUl;L eif
vdj; bjhpe;Jbfhz;ljhft[k;. 4tJ vjphp brhd;dgo
4tJ vjphpapd; kfdhd 5tJ vjphpahfpa ePUk;. 4tJ
vjphpapd; filapy; ntiy bra;a[k; 3tJ vjphpahfpa
ePUk; To. 1tJ vjphpapd; bgaUf;F urPJ nghlhky;
utp vd;w bgahpy; U:/80.000--f;F mlF itg;gJ nghy
urPJ nghl;L 5tJ vjphpahfpa ePh; utp vd me;j
urPjpy; ePnu ifbaGj;jpl;L eifia bgw;Wf;
bfhz;Ls;sjhft[k; gpd;dh; 4tJ vjphpahfpa ePh; 1tJ
vjphpaplk; U:/60.000--I bfhLj;Js;sjhft[k;. 1tJ
vjphpahfpa ePh; mjid $hypahf bryt[
bra;Js;sjhft[k;. 4tJ vjphpahfpa ePh; 3 kw;Wk; 5tJ
vjphpfspd; cjtpa[ld; 1tJ vjphp bfhLj;j eif
jpUl;L eif vd;W bjhpe;Jk; mjid mlF itf;f
bgw;Wf; bfhz;Ls;sjhy;. 3 Kjy; 5 vjphpfshfpa
eP';fs; ,/j/r/ 411 c-,/ 34 gphptpd; fPH;
tprhhpf;fj;jf;fJk;. ,e;ePjpkd;sj;jhy;
jz;of;fj;jf;fJkhd Fw;wj;ij g[hpe;Js;sPh; vd
Fw;wr;rhl;L tidag;gl;Ls;sJ/”
8. In order to prove the aforestated charge against the three accused
viz., A3, A4 and A5, the prosecution specifically depended the evidence of
P.W.17 who is the Assistant in Revenue Department who stood as a
confession witness for A1, A2 and A3. If we go through the evidence
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Crl.A.No.15 of 2018
recorded by P.W.17 in his chief examination, he has stated before the trial
Court the following:
“... 1tJ vjphpapd; xg;g[jy; thf;FK:yj;jpy; cs;s
rhl;rpapd; ifbahg;gk; kl;Lk; m/j/rh/M.9/ nkw;go
,uz;L vjphpfSk; kJuhe;jfj;jpy; cs;s mlF
filapy; eifia mlkhdk; itj;jpUg;gjhft[k; mlF
filia fhz;gpg;gjhft[k; brhd;dhh;fs;/ Kjy;
vjphpapd; xg;g[jy; thf;FK:yj;jpy; mDkjpf;fg;gl;l
gFjp m/j/rh/M/10/ vd;dplk; fhz;gpf;fg;gLk; xg;g[jy;
thf;FK:yj;jpy; fz;Ls;sJ vd;Dila ifbahg;gk;
jhd;/ rhl;rpaplk; ,uz;lhtJ vjphpa[ila xg;g[jy;
thf;FK:yk; fhz;gpf;fg;gl;lJ/ 2tJ vjphpapd; xg;g[jy;
thf;FK:yj;jpy; cs;s rhl;rpapd; ifbahg;gk; kl;Lk;
m/j/rh/M/11/ ,uz;lhtJ vjphpapd; xg;g[jy;
thf;FK:yj;jpy; mDkjpf;fg;gl;l gFjp m/j/rh/M/10/
vd;dplk; fhz;gpf;fg;gLk; xg;g[jy; thf;FK:yj;jpy;
fz;Ls;sJ vd;Dila ifbahg;gk; jhd;/ rhl;rpaplk;
,uz;lhtJ vjphpa[ila xg;g[jy; thf;FK:yk;
fhz;gpf;fg;gl;lJ/ 2tJ vjphpapd; xg;g[jy;
thf;FK:yj;jpy; cs;s rhl;rpapd; ifbahg;gk; kl;Lk;
m/j/rh/M/11/ ,uz;lhtJ vjphpapd; xg;g[jy;
thf;FK:yj;jpy; mDkjpf;fg;gl;l gFjp m/j/rh/M/12/
Ma;thsh; nkw;go M$hpy; cs;s 1. 2 vjphpfisa[k;
vd;ida[k;. tp V X fjpnurida[k; kJuhe;jfj;jpw;F
nfhj;jk;re;j; mlF filf;F miHj;J brd;whh;/
M$hpy; cs;s 3tJ vjphpahd KUfd; nkw;go mlF
filapy; ,Ue;jhh;/ 3tJ vjphpaplk; nghyPrhhplk;
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Crl.A.No.15 of 2018
thf;FK:yk; bfhLj;jhh;/ mjid nghyPrhh; gjpt[
bra;jhh;fs;/ 3tJ vjphpapd; xg;g[jy; thf;FK:yj;jpy;
cs;s rhl;rpapd; ifbahg;gk; kl;Lk; m/j/rh/M/13/
M$h; vjphp KUfdplk; ,Ue;J o tp khly; brapd;
xd;W jhypa[ld; ToaJ (rh/bgh/8) ifg;gw;wg;gl;lJ/
vd;dplk; fhz;gpf;fg;gLk; ifg;gw;Wjy; kfrhpy;
fz;Ls;sJ vd;Dila ifbahg;gk; jhd;/ me;j
ifg;gw;Wjy; kfrh; m/j/rh/M/14/ nghyPrhh; vd;id
tprhuiz bra;jhh;fs;/”
9. In his cross examination, the P.W.17 has stated the following:
“.... ,Jtiu ehd; ve;j tHf;fpYk; nghyPrhUf;F
rhl;rp brhd;djpy;iy/ jw;nghJ jhd; Kjy; Kiwahf
rhl;rpak; mspj;Js;nsd;/ nkw;go rh/bgh/8 mlkhdk;
itf;fg;gl;oUe;j eif vd;why; Mk;/ mlkhdj;jpw;F
urPJk; bfhLj;jpUe;jhh;fs; vd;why; Mk;/ mlkhdk;
itj;j urPij nghyPrhh; gwpKjy; bra;jhh;fs;/
mlkhdk; itj;J th';FtJ rl;lg;go Fw;wk; ,y;iy
vd;why; rhpjhd;/”
10. This evidence has been mainly relied upon by the prosecution and
the learned Judge of the trial Court has given the following discussion about
the evidenciary value of the said witness:
“54. ..... The evidence available on record also proves
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that the 4th accused is the receiver of the stolen property and the
3rd accused is the person available in the Pawn Broker Shop of
the 4th accused from whom M.O.8 was recovered. However, I
do not find any evidence against the 5th accused in order to
connect him to the offence u/s.411 IPC. Hence, I conclude that
the prosecution has proved the charges u/s. 450, 302 and 380
r/w. 34 IPC as against the 1st and 2nd accused and the charge
u/s. 411 r/w. 34 IPC against the 3 rd and 4th accused beyond
reasonable doubt. Thus the point is answered accordingly.”
11. The trial Court also discussed the evidence recorded by P.W.26
who is Investigating Officer and the relevant portion of the order reads
thus:
“44. .... Hence, the evidence of P.W.26 regarding the
recovery of material objects remains unchallenged as against
the accused 1 & 2. P.W.26 did not speak anything about the
involvement of the 4th and 5th accused in his chief examination.
But, in the cross examination, he has stated that 4 th and 5th
accused have been impleaded in this case since 4 th accused has
received the stolen articles and the 5th accused has given a
Receipt in the name of one Ravi. But, the alleged Receipt given
by him in the name of Ravi was not produced before the Court.
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So, the evidence of P.W.26 regarding the recovery of stolen
properties pertains to only 3rd and 4th accused and P.W.13.”
With the availability of these evidences, the trial Court has found the
accused 3 and 4, who are the appellants, herein are guilty of offence
punishable under Section 411 r/w. 34 I.P.C. and therefore such a conviction
and sentence was awarded.
12. Mr.V.Krishnamoorthy, learned counsel appearing for the
appellants has stated that the main charge that was made against these two
appellants who stood as A3 and A4 as well as A5, according to the
prosecution is that, all the three knowing well that a portion of the property
was a stolen one and with that knowledge they received such a stolen
property from A1 and A2 and in this context, it is the further case of the
prosecution that, as against the receipt of such stolen goods, a receipt not in
the name of A1 or A2 but in the name of one Ravi has been prepared and
given and in that receipt, A5 has signed as if that he is the Ravi and keep the
receipt with him.
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13. Explaining further this case of the prosecution, the learned
counsel would contend that, if at all the three accused viz., A3, A4 and A5
had a knowledge about the stolen goods despite that knowledge they
received the stolen goods for which a fake receipt having been prepared and
was kept intact by A5, that receipt should have been recovered and marked
as a document i.e. Exhibit before the trial Court. However, P.W.26 i.e.
Investigating Officer has admitted that such an exhibit he has received but
not marked.
14. The learned counsel also pointed out that, the A5 has been
acquitted by the trial Court. Once the A5 is acquitted by the trial Court what
is the link and knowledge with regard to the alleged offence punishable
under Section 411 r/w. 34 I.P.C. as charged by the prosecution has no legs
to stand and therefore, the conviction that has been given against A3 and A4
who are the appellants herein by the trial Court is without any evidence, he
contended.
15. However, Mr.S.Raja Kumar, learned Additional Public Prosecutor
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Crl.A.No.15 of 2018
appearing for the respondent would canvass the point that, it is on the basis
of the confession statement, where only admissible part of the A3 has been
marked, the prosecution had gone to the place of A4, who is a Pawn Broker
and his shop only the A3 was working and A5 is the son of A4. During the
investigation it was revealed that the property i.e. M.O.8 which is a part of
the stolen property was recovered only from A4. Against such property since
there has been no proper explanation given by A4 and A3 had given his
statement that, that was the stolen property brought by A1 and A2 and
knowing well that all the three accused i.e. A3 to A5 decided to receive it. If
that being so, it is a clear case where A3 to A5 joint together and decided to
receive the M.O.8 knowing well that it is a stolen goods, thereby they
committed the offence punishable under Section 411 r/w. 34 I.P.C.
16. The learned Additional Public Prosecutor would also submit that,
merely because the A5 has been acquitted by the trial Court and the receipt
in the name of Ravi prepared by A5 and recovered by the Investigating
Officer (P.W.26) has not been marked as an exhibit that would not be a fatal
to the prosecution case insofar as the charge made against A3 and A4 is
concerned, he contended.
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Crl.A.No.15 of 2018
17. We have considered the said arguments advanced by the learned
counsel appearing for both sides and also have perused the records placed
before this Court.
18. The very charge made against the A3 to A5 as extracted herein
above only relates to the alleged receipt of stolen goods for the offence
punishable under Section 411 r/w. 34 I.P.C. Therefore, first of all the
prosecution must have established the case that the accused 3 to 5 had a
knowledge that M.O.8 is a stolen goods and knowing well that it is a stolen
goods they decided to receive it. In this context, the main contention of the
prosecution side is that, in order to receive the M.O.8 i.e. the stolen goods,
instead of giving receipt directly either to the A1 or A2 they made a receipt
which is fake one in the name of one fictitious person viz. Ravi and this has
been made by A5 with a concurrence and connivance of A3 and A4. It is
also the prosecution case that, that receipt has been recovered by the
prosecution as deposed by P.W.26 (Investigating Officer). However, that
exhibit has not been marked before the Court admittedly. Since the said
alleged fake receipt prepared in the name of Ravi is the main basis to come
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to a conclusion that the accused A3 to A5 had an object intentionally to
receive the stolen goods, the prosecution must have marked that exhibit that
is the receipt in the name of Ravi.
19. In this context, what has been triggered in the mind of the learned
Judge to acquit the A5, the same reason would apply equally to A3 and A4
also.
20. Merely on the basis of the alleged confession statement given by
A3, the prosecution cannot built up their case and based on which the trial
Court ought not to have come to a conclusion that the charge framed against
A3 and A4 has been proved beyond reasonable doubt and therefore they
could be found guilty for the said offence.
21. Even in the evidence of P.W.17, especially in the cross
examination, he has stated that, he said in the affirmative whether the M.O.8
was a pledged goods and also he had stated to the question whether receipt
had been given for the pledge, he said in the affirmative. He also stated that
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Crl.A.No.15 of 2018
the police has recovered the receipt for the pledge.
22. When that being the position, whether the A3 to A5 with or
without the knowledge about M.O.8, that it is a stolen goods, have received
the said goods, has not been clearly investigated and established by the
prosecution.
23.This aspect has not been considered in proper perspective by the
learned trial Court Judge and therefore his reasoning given in the judgment
impugned to reach a conclusion that the A3 and A4 can be found guilty for
the offence punishable under Section 411 r/w. Section 34 I.P.C. is not based
on any evidence and therefore, we do not have any hesitation to hold that the
finding and the conclusion arrived at by the trial Court in the judgment
impugned in respect of these appellants who stood as A3 and A4 cannot be
sustained and therefore it is to be interfered with.
24. In the result, the conviction and sentence made by the Sessions
Judge, Mahila Court, (Mahalir Neethimandram), Chennai dated 02.01.2018
in S.C.No.192 of 2015 in P.R.C.No.37 of 2015 on the file of XXIII M.M.,
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Crl.A.No.15 of 2018
Saidapet, Chennai is hereby set aside and the appeal is thus allowed. The
fine amount of Rs.5000/- each by these appellants paid shall be refunded to
the accused by the concerned authority.
[R.S.K. J.] [K.B. J.]
06.07.2023
Index : Yes
Speaking Order : No
Neutral Citation : No
Sgl
To
1.The Sessions Judge,
Mahila Court, (Mahalir Neethimandram),
Chennai.
2.The Inspector of Police (L&O),
R10 MGR Nagar Police Station,
Chennai – 600 083.
3.The Public Prosecutor,
High Court, Madras.
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Crl.A.No.15 of 2018
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Crl.A.No.15 of 2018
R. SURESH KUMAR, J.
And
K.KUMARESH BABU, J.
Sgl
Criminal Appeal No.15 of 2018
06.07.2023
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