Madras High Court
Vadivel vs State Of Tamil Nadu on 31 March, 2023
2023:MHC:1596
Criminal Appeal Nos.668 of 2015 & 356 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.03.2023
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
Criminal Appeal Nos.668 of 2015 & 356 of 2016
and
Crl.M.P.Nos.9546 & 12709 of 2017
1.Vadivel
S/o.Venkattan
2.Vetrivel
S/o.Shanmugam ... Appellants in Crl.A.No.668/2015/
Accused Nos.2 & 3
Gurudev
S/o.Gunaseelan ... Appellant in Crl.A.No.356/2016/
Accused No.1
Vs.
State of Tamil Nadu
represented by
The Inspector of Police,
A.Pallipatti Police Station,
Dharmapuri District.
Crime No.326 of 2013 ... Respondent/Complainant in both appeals
1/16
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Criminal Appeal Nos.668 of 2015 & 356 of 2016
Prayer : Criminal Appeals filed u/s.374(2) of the Code of Criminal
Procedure against the judgment passed by Sessions Judge, Fast Track
Mahila Court, Dharmapuri, in S.C.No.150 of 2014, dated 31.08.2015.
For Appellants
[Crl.A.No.668/2015] : Mr.M.Karthik
for Mr.M.Prabakar
[Crl.A.No.356/2016] Mr.G.Mohan
for Mr.S.Kumara Devan
For Respondent : Mr.L.Baskaran
[in both appeals] Government Advocate [Crl.side]
*****
COMMON JUDGMENT
As both the appeals arise out of one and the same judgment, they are
considered and decided by this common judgment.
2. These criminal appeals have been filed by A1 to A3 against the
judgment and order passed by the Sessions Judge, Fast Track Mahila Court,
Dharmapuri, in S.C.No.150 of 2014, dated 31.08.2015, convicting A2 for
offence u/s.392 r/w 397 IPC and sentencing him to undergo seven years
rigorous imprisonment. Insofar A1 and A3 are concerned, they were
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Criminal Appeal Nos.668 of 2015 & 356 of 2016
convicted for offence u/s.392 r/w 397 r/w 34 IPC and each was sentenced to
undergo seven years rigorous imprisonment.
3. The case of the prosecution is as follows:
3.1. On 07.11.2013, at about 03.00 p.m., when PW-1 was sitting in
her house, the accused persons came to the place in a two-wheeler and A1
and A3 were watching the movements in and around at that place and A2 is
said to have thrown chilli powder in the eyes of PW-1 and thereafter, had
taken away the gold chain weighing four pounds. Thereafter, the accused
persons escaped in the two-wheeler.
3.2. PW-1 gave a complaint [Ex.P1] before the A.Pallipatti Police
Station on 07.11.2013 at about 05.00 p.m. Based on the complaint, PW-14,
who was the Sub-Inspector of Police, registered the First Information
Report [Ex.P8] in Crime No.326 of 2013 for offence u/s.392 IPC. The First
Information Report was registered as against two unknown persons.
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3.3. PW-15, Inspector of Police, took up the investigation and he went
to the scene of occurrence on 07.11.2013 at about 05.45 p.m. and prepared
the observation mahazar marked as Ex.P4 and rough sketch marked as
Ex.P9. He recorded the statement of the victim PW-1. He also enquired the
neighbours and recorded their statements u/s.161(3) Cr.P.C. PW-15 in the
course of investigation, arrested all the three accused persons on 25.11.2013
at about 09.00 a.m. The confession statements of all the three accused
persons were recorded in the presence of witnesses PW-8 and PW-9 and the
admissible portions in the confession statements of all the three accused
persons were marked as Exs.P10 to P12. Based on the confession given by
the accused persons, PW-15 came to know that the gold chain [MO-1] was
handed over to one Anbazhagan [PW-10]. The said Anbazhagan with the
help of PW-11 pledged the gold chain in the Primary Co-operative Societies
Bank, Neepathandurai and had received a sum of Rs.50,000/-.
3.4. On coming to know of the same, PW-15 after recording the
statements of PW-10 and PW-11, proceeded to the Co-operative Bank and
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Criminal Appeal Nos.668 of 2015 & 356 of 2016
recovered the gold chain and also recorded the statements of PW-12 and
PW-13, who are the Secretary and the Assistant Secretary working in the
said Bank.
3.5. PW-15, after collecting all the concerned documents pertaining to
pledging of gold chain, recorded the statements of all other witnesses and
ultimately, filed the final report on 31.01.2014 before the learned District
Munsif cum Judicial Magistrate, Pappireddipatti. Learned Judicial
Magistrate served copies on the accused persons u/s.207 Cr.P.C. and the
case was remitted u/s.209 Cr.P.C. before the Principal District and Sessions
Court, Dharmapuri and it was made over to the Court below.
3.6. The Court below framed charge against A2 for offence u/s.392
r/w 397 IPC and as against A1 and A3 for offence u/s.392 r/w 397 r/w 34
IPC. When the charge was put to the accused persons, they denied the same.
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3.7. The prosecution examined PW-1 to PW-15 and marked Exs.P1 to
P14. The incriminating evidence that was gathered during the course of trial
was put to the accused persons, when they were questioned u/s.313(1)(b)
Cr.P.C and they denied the same as false.
3.8. The trial Court, on considering the facts and circumstances of the
case and on appreciation of oral and documentary evidence, came to a
conclusion that the prosecution has made out a case beyond reasonable
doubts and accordingly, convicted and sentenced the accused persons in the
manner stated supra. Aggrieved by the same, these criminal appeals have
been filed before this Court.
4. Heard Mr.M.Karthik and Mr.G.Mohan, learned counsel for
appellants and Mr.L.Baskaran, learned Government Advocate [Crl.side],
appearing for respondent/State.
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5. This Court has carefully considered the submissions made on either
side and the materials available on record.
6. The evidence of PW-1 gains lot of significance in this case since
she is the victim from whom the gold chain was robbed by the accused
persons. PW-1 while giving the complaint before the police station, has not
identified any accused person by name. In one place in the complaint, she
makes a reference to "bfhse;ij ngud;". It is not clear as to whom she
is referring with this expression. While registering the First Information
Report, it was registered only against two unknown persons. Admittedly, no
test identification parade was conducted by PW-15 in the course of
investigation.
7. PW-1 while deposing before the Court did not even identify the
accused persons and the prosecution did not even care to put a specific
question in this regard. Unfortunately, the trial Court also did not intervene
and put any question to PW-1 with regard to their identity in the Court. PW-
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Criminal Appeal Nos.668 of 2015 & 356 of 2016
1 in her deposition stated as if all the three accused persons came inside the
house, attacked PW-1 and also thrown chilli powder in her eyes and had
taken away the gold chain. Whereas, based on the materials that were placed
while filing the final report, the Court below has framed the charge by
stating that it was A2, who had attacked PW-1 and thrown chilli powder and
taken away the gold chain. The role of A1 and A3 was only to watch the
movements in and around the house. Therefore, the version given by PW-1
is not in line with the version that is found in the charge that was framed by
the Court below. PW-1, in her evidence, has further stated that she knows
Gurudev [A1]. If this statement made by PW-1 is taken as true, nothing
prevented PW-1 from stating the name of Gurudev when the complaint was
given. What was stated in the complaint was "bfhse;ij ngud;" and
there was absolutely no material to connect "bfhse;ij ngud;" to A1.
8. The further version that was given by PW-1 was that the chilli
powder was thrown in her eyes and she was thereafter taken to Government
hospital and was given treatment. It was further stated that she had informed
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about the incident to the doctor. If this statement is taken to be true, nothing
prevented the prosecution from filing the Accident Register and examining
the concerned doctor, who treated PW-1.
9. PW-2 to PW-4 and PW-7 are the residents, who are living in and
around the locality. These witnesses are more in the nature of res gestae
witnesses and all of them state that they heard PW-1 shouting and when
they went to the house of PW-1, they were informed by PW-1 that
somebody had taken away her gold chain. They also spoke about seeing
some persons rushing in a two-wheeler. PW-7 has further stated that he also
went along with PW-1 to the police station when the complaint was given.
These witnesses also did not identify the accused persons in the Court.
10. PW-6 had deposed that he is having a xerox shop at A.Pallipatti
village and on 07.11.2013 at about 02.45 p.m., he saw three persons with a
bike talking near his shop. Thereafter, he heard the news that a gold chain
has been robbed from PW-1 and he rushed to the scene of occurrence. He
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also saw two persons rushing away in a two-wheeler. This witness also does
not identify the accused persons in the Court.
11. PW-8 and PW-9, who are witnesses to speak about the arrest and
recovery, turned hostile. Nothing much comes out of the evidence of these
two witnesses.
12. The other crucial witness, who was examined on the side of
prosecution was PW-10, who is said to have received the gold chain from
A2 and pledged it in the Co-operative Bank with the help of PW-11. This
witness also turned hostile and his evidence also does not in anyway help
the case of the prosecution.
13. PW-11 is said to be a person who helped PW-10 to pledge the
gold chain in the Co-operative Bank. PW-11 has deposed to the effect that
PW-10 requested him to pledge the gold chain in the Co-operative Bank in
which PW-11 was a member and accordingly, PW-11 pledged the gold chain
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and handed over a sum of Rs.50,000/- to PW-10. Thereafter, PW-10 repaid
the sum of Rs.50,000/- and the pledged gold chain was redeemed and
handed over to PW-10. This process took place after the police came into
the scene pursuant to the complaint given by PW-1. The evidence of PW-11
will help the prosecution only with respect to identity of MO-1 and the gold
chain having been pledged with the Co-operative Bank. The evidence of
PW-12 [Secretary of the Bank] and PW-13 [Assistant Secretary of the Bank]
also helps the prosecution for the very same purpose. The evidence of PW-
11 to PW-13 does not in any way help the prosecution in fixing the accused
persons in this case. It must be borne in mind that a mere recovery cannot
lead to conviction and sentence of accused persons unless they have been
properly identified by witnesses. In other words, recovery will only be one
link in the chain of circumstances and that by itself will not lead to
conviction and sentence.
14. There is yet another important factor that has to be taken into
consideration by this Court. The accused persons are said to have travelled
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in a two-wheeler and had come to the place of occurrence and after robbing
the gold chain, had escaped in that two-wheeler. On the confession of the
accused persons, the two-wheeler is said to have been recovered along with
a knife. Curiously the two-wheeler has not even been marked as a material
object in this case. Hence, there was no opportunity for any of the witnesses
to identify at least the two-wheeler in which the accused persons are said to
have come to the scene of occurrence and escaped from there.
15. PW-15 is the investigation officer in this case. It is quite
unfortunate that the investigation officer did not resort to Test Identification
Parade in spite of the fact that the accused persons in this case are unknown
to the victim. In his entire evidence, PW-15 does not say as to how he came
to know that A1 to A3 had committed the crime. The investigation officer
merely states that he heard that the accused persons were roaming around
and thereafter, he arrested them and they were remanded to judicial custody.
The investigation officer probably thought that mere recovery of the
material object was enough to convict any person, who is shown as accused
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person before the Court. The accused persons were neither identified during
the course of investigation nor they were identified by any of the witnesses
in the Court.
16. The trial Court had proceeded further in this case merely on the
basis of recovery and insofar as the identity of the accused persons is
concerned, the trial Court has rendered its findings on mere surmises and
assumptions. There is no question of identifying an accused person on
assumptions and it involves a very important right guaranteed to any person
under Article 21 of the Constitution of India and punishing a person even
without proper identity, will directly impinge upon the liberty that is
guaranteed under Article 21 of the Constitution of India. In a case of this
nature, the Court should not be swayed by mere emotions and the Court
must necessarily ensure that the accused persons are properly identified. If
such a procedure is not followed, anybody can be made as an accused
person in a given case on mere recovery and in all probabilities, the person,
who is shown as an accused will have nothing to do with the case. On many
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occasions, the police find it convenient to bring in some habitual criminal
and show him as an accused in the case. Such line of investigation should
never be encouraged and just because someone is a habitual criminal, that
does not mean that he must be held responsible for every crime that takes
place in the society. Such attitude will cause a dent in the criminal justice
system and will make the officers ineffective when they investigate serious
crimes.
17. In the light of the above discussion, this Court has absolutely no
hesitation to interfere with the judgment and order passed by the Sessions
Judge, Fast Track Mahila Court, Dharmapuri, in S.C.No.150 of 2014, dated
31.08.2015 and accordingly, the same is set aside. The appellants are
acquitted from all charges and the bail bonds executed by them shall stand
discharged and fine amount, if any, paid by them shall be refunded to them.
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Criminal Appeal Nos.668 of 2015 & 356 of 2016
In the result, these Criminal Appeals are allowed. Consequently,
connected miscellaneous petitions are closed.
31.03.2023
Index : Yes
Speaking Order / Non Speaking Order
Neutral Citation: Yes
gm
To
1.The Sessions Judge,
Fast Track Mahila Court,
Dharmapuri.
2.The Inspector of Police,
A.Pallipatti Police Station,
Dharmapuri District.
3.The Public Prosecutor,
High Court, Madras.
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Criminal Appeal Nos.668 of 2015 & 356 of 2016
N. ANAND VENKATESH, J
gm
Criminal Appeal Nos.668 of 2015 & 356 of 2016
31.03.2023
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