Madras High Court
M.Vinaykumar vs State on 2 August, 2024
Author: R. Hemalatha
Bench: R. Hemalatha
Crl.A.No.20 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.08.2024
CORAM
THE HONOURABLE MRS. JUSTICE R. HEMALATHA
Crl.A.No.20 of 2018
M.Vinaykumar ... Appellant
Vs.
State :
Rep. by the Inspector of Police,
B-9, Saravanampatty Police Station,
Coimbatore. ... Respondent
Prayer : Criminal Appeal filed under Section 374(2) Criminal Procedure
Code 1973, against the judgement and orders dated 18.12.2017 passed in
S.C.No.145/2012 by the IV Additional District and Sessions Judge,
Coimbatore.
For Appellant : Mr.R.Vijayaraghaven
For Respondent : Mr.S.Raja Kumar,
Additional Public Prosecutor.
Page 1 of 13
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Crl.A.No.20 of 2018
JUDGMENT
Challenging the conviction and sentence dated 18.12.2017
passed in S.C.No.145/2012 by the IV Additional District and Sessions
Judge, Coimbatore, the present criminal appeal is filed by the appellant /
fourth accused.
2. The appellant stood charged for the offences punishable
under Sections 411 and 413 IPC by the trial court in S.C.No.145/2012.
3. The learned trial court Judge, after full trial, convicted and
sentenced the appellant, vide his judgment dated 18.12.2017, as detailed
hereunder.
Conviction Sentence
Section 411 IPC Rigorous imprisonment for a period of two
years and to pay a fine of Rs.10,000/-, in
default, to undergo simple imprisonment for a
period of two months.
The aforesaid sentences shall run concurrently.
The period of sentence already undergone by him shall be set off
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Conviction Sentence
under Section 428 Cr.P.C.
The learned trial court judge found the accused not guilty of the offence
under Section 413 IPC and acquitted him under Section 235(1) Cr.P.C.
4. The case of the prosecution as could be discerned from the
oral and documentary evidence is as follows:
4.1. Thiru.Paneerselvam (P.W.1) is residing at Door No.9(A),
Ashok Nagar, Maniyakarampalayam, Coimbatore. On 03.10.2011 at
about 6.00 a.m., P.W.1 received a call from his father stating that his
grandfather is unwell. Therefore, he went to Gandhipuram with his wife
in a two wheeler and came back home at about 8.45 p.m. on the same
day. He saw some persons scaling his compound wall. P.W.1 attempted
to apprehend them but all the accused made good their escape. P.W.1
went inside his house and found the back door of his house broken. On
further search, he found the bureau inside his bedroom was also broken
and 35 sovereigns of gold jewels and a cash of Rs.40,000/- had gone
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missing.
4.2. P.W.1 immediately lodged a written complaint (Ex.P1)
with Thiru.K.R.Rajan (P.W.10), the then Sub Inspector of Police,
Saravanpatty Police Station, Coimbatore, at about 12.15 hours
(midnight). P.W.10 received the complaint (Ex.P1) from P.W.1 and
registered FIR (Ex.P13) in Crime No.1041/2011 against unknown
persons for the offences punishable under Sections 457 and 380 IPC. He
then placed the records before Thiru.S.Ilango (P.W.12), the then
Inspector of Police, Saravanampatty Police Station, Coimbatore.
4.3. P.W.12 took up investigation, went to the scene of
occurrence, prepared an observation mahazar (Ex.P3) and a rough sketch
(Ex.P14) in the presence of the witnesses Purushothaman (not examined)
and Easwaramurthy (P.W.5). He received an intimation from Karaikudi
Police Station that the accused Mani @ Manikandan, Raghu @
Raghuraman and Muthu @ Muthukumar were arrested in connection
with Crime No.407/2011 of Karaikudi Police Station for the offences
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punishable under Sections 457 and 380 IPC and that they have confessed
the commission of the present offence. P.W.12, thereafter, obtained
necessary Prisoner Transfer Warrant (Ex.P16) from the Judicial
Magistrate No.II, Coimbatore, and arrested the accused 1 to 3. He took
them to police custody and recorded their confessional statements in the
presence of the witnesses Vijayaraja (P.W.7) and Sasikumar (P.W.9).
Based on their confession, P.W.12 went to the jewellery shop owned by
the present appellant and arrested him. He also recorded the confessional
statement of the present appellant in the presence of the same witnesses
and recovered the jewels (M.O.4, M.O.9 and M.O.10) under the cover of
a seizure mahazar (Ex.P7).
4.4. P.W.12, after completing investigation, laid a final report
against the accused 1 to 3 for the offences punishable under Sections 457
and 380 IPC and for the offences under Sections 411 and 413 IPC against
the present appellant before the Judicial Magistrate No.II, Coimbatore, in
P.R.C.No.12/2012.
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4.5. The learned Judicial Magistrate after furnishing copies of
records to the accused under Section 207 Cr.P.C, committed the case to
the Court of Sessions. The learned Principal District and Sessions Judge,
Coimbatore, took the case on file in S.C.No.145/2012 and made over the
same to IV Additional District and Sessions Judge, Coimbatore.
4.6. In order to bring home the guilt of the appellant, the
prosecution examined 12 witnesses, marked 16 documents and 10
Material Objects.
4.7. The appellant, when questioned under Section 313 Cr.P.C
with regard to the incriminating circumstances appearing in evidence
against him, denied of having committed any offence. However, he did
not examine any witness on his side.
4.8. The learned trial court judge after analysing the oral and
documentary evidence on record, convicted and sentenced the appellant
as stated in paragraph No.3, vide her judgment and orders dated
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18.12.2017, aggrieved over which, the appellant / fourth accused has
preferred the present appeal.
5. Heard Mr.R.Vijayaraghaven, learned counsel for the
appellant and Mr.S.Raja Kumar, learned Additional Public Prosecutor for
the respondent.
6. Mr.R.Vijayaraghaven, learned counsel for the appellant
contended that the prosecution has not established that the appellant
received the gold jewels from the accused knowing that they were stolen
articles. It is also his contention that based on the confessional statement
of the co-accused, the appellant cannot be punished for the offences
punishable under Section 411 IPC.
7. Per contra, Mr.S.Raja Kumar, learned Additional Public
Prosecutor would contend that the trial court after analysing the
oral/documentary evidence, rightly convicted and sentenced the appellant
and therefore, no interference is called for by this court and prayed for
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dismissal of the present appeal.
8. The prosecution, in order to prove its case against the
appellant mainly relies on the confessional statement of the accused 1 to
3 and the confessional statement of the appellant which led to the
recovery of the gold jewels (M.O.4, M.O.9 and M.O.10).
9. It is pertinent to point out that the confessional statement
made before a police officer is inadmissible in evidence. However,
Section 27 of the Indian Evidence Act, creates an exception to the
admissibility of confession made by the accused to a police officer while
in custody. It provides that when any fact is deposed to as discovered in
consequence of information received from a person accused of any
offence, in the custody of a police officer, so much of such information,
whether it amounts to a confession or not, as relates distinctly to the fact
thereby discovered, may be proved. In the instant case, the admissible
portion of the confession statement of the fourth accused was marked as
Ex.P12 based on which the jewels M.O.4, M.O.9 and M.O.10 were
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recovered. However, the prosecution has miserably failed to establish
that the appellant had the knowledge that the jewels seized from him
were stolen as mentioned in the confession of the other accused. The
factum of selling gold at a low price itself cannot lead to the conclusion
that the appellant was in know of the fact that the articles which he
received were stolen. The prosecution has also failed to produce the
records to show that the appellant received the stolen jewels at a very low
price. Thus, the prosecution has not produced any iota of evidence before
this Court to conclude that the appellant, with his knowledge received the
gold jewels stolen by the accused 1 to 3. In the circumstances, the
conviction and sentence passed by the trial court judge against the
appellant for the offence punishable under Section 411 IPC cannot be
sustained and therefore, the appeal is allowed.
10. In the result,
i. the Criminal Appeal is allowed.
ii. the judgment and orders dated 18.12.2017 passed in
S.C.No.145/2012 by the IV Additional District and Sessions
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Judge, Coimbatore, is set aside.
iii. the appellant (fourth accused in S.C.No.145 of 2012) is acquitted
from all the offences, of which he is charged. Bail bonds, if any,
shall stand cancelled. Fine amount, if already paid, shall be
refunded.
02.08.2024
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
mtl
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To
1. The IV Additional District and Sessions Judge, Coimbatore.
2. The Inspector of Police, B-9, Saravanampatty Police Station,
Coimbatore.
3. The Public Prosecutor, High Court, Madras.
4.The Section Officer, Criminal Section, High Court, Madras.
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R. HEMALATHA, J.
mtl
https://www.mhc.tn.gov.in/judis
02.08.2024
https://www.mhc.tn.gov.in/judis
