Madras High Court
R.Vinay vs State Of Maharashtra on 5 January, 2024
Author: S.S.Sundar
Bench: S.S.Sundar
Crl.A.Nos.218, 511 and 378 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 16.11.2023
PRONOUNCED ON : 05.01.2024
CORAM :
THE HON'BLE MR. JUSTICE S.S.SUNDAR
AND
THE HON'BLE MR.JUSTICE SUNDER MOHAN
Crl.A.Nos.218, 511 and 378 of 2020
Crl.A.No.218 of 2020
R.Vinay .. Appellant / A4
v.
State:
The Inspector of Police,
Mathigiri Police Station,
Krishnagiri District.
Crime No.27/2009 .. Respondent
Crl.A.No.511 of 2020
Manju @ Manjunath .. Appellant / A2
v.
State:
The Inspector of Police,
Mathigiri Police Station,
Krishnagiri District.
Crime No.27/2009 .. Respondent
1
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2
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Crl.A.No.378 of 2020
1. Sunil @ Sunil Kumar
2. Jekka @ Jegadeesan .. Appellants / A3 & A5
v.
State:
The Inspector of Police,
Mathigiri Police Station,
Krishnagiri District.
Crime No.27/2009 .. Respondent
Criminal Appeals filed under Section 374(2) of Code of Criminal
Procedure, 1973, to call for the records in S.C.No.114 of 2009, on the file of
the learned Additional District and Sessions Judge, Hosur dated 23.01.2020
and set aside the judgment dated 23.01.2020.
For Appellant(s)
in Crl.A.No.218/2020 : Mr.V.Karthick, Sr. Counsel
for Mr.Saibaba
in Crl.A.No.511/2020 : Mr.B.Mohan
for Mr.R.Selladurai
in Crl.A.No.378/2020 : Mr.B.M.Subash
For Respondent : Mr.A.Gokulakrishnan
in all Crl.As. Additional Public Prosecutor
3
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4
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COMMON JUDGMENT
(Order of the Court was delivered by SUNDER MOHAN,J.)
These appeals have been filed by Accused Nos.2, 3, 4 and 5,
challenging the conviction and sentence imposed upon them vide judgment
dated 23.01.2020 in S.C.No.114 of 2009, on the file of the learned
Additional District and Sessions Judge, Hosur.
2. For the sake of convenience, the parties are referred to as per their
ranking before the trial Court.
3.(i) The case of the prosecution is that on 30.01.2009 at about
4.00pm, the accused to commit robbery trespassed into the house of one
Shakila Banu (the deceased), situated at Kalukondapalli Village near Hosur
Thali Road; that A1 and A4 took the deceased to her bedroom and tied her
in a chair and thereafter, gagged her mouth and her nose with a plaster,
knowing fully well that it is likely to cause death; that A1 and A4 tied the
hands of the deceased; that A2, A3 and A5 shared the common intention
with A1 and A4 in the said offence; that all the accused thereafter took away
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the gold and silver articles and Rs.3,000/- cash from the cupboard of the
deceased; and that since the mouth and nose of the deceased-Shakila Banu
were plastered, she died due to suffocation.
(ii) It is the further case of the prosecution that PW1 and PW2, the
daughters-in-law of the deceased were in the house when the alleged
occurrence took place; that PW1 gave a complaint to the police at about
6.30pm on 30.01.2009; and that on the complaint marked as Ex.P1, PW11-
Investigation Officer registered an FIR-Ex.P22.
(iii) The further prosecution case is that on 28.01.2009, two unknown
persons came to the house of the deceased and represented that they were
from HDFC Bank; that again, on 29.01.2009, four other persons came and
asked for one 'Sevaal', and when the deceased told the accused that there
was no one by the name 'Sevaal' in the house, they left the place; and that all
the above mentioned six persons joined together and came on the fateful day
i.e., 30.01.2009 to the house of the deceased.
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(iv) On receipt of the complaint, PW11, took up the investigation, and
went to the scene of the occurrence, prepared the observation mahazar
[Ex.P2] and the rough sketch [Ex.P25], and examined the witnesses. Since
the witnesses were not conversant with Tamil language, he took the help of
constable Madheshan [PW7] to translate the statements of the witnesses;
that on 31.01.2009, PW11 went to Hosur Government Hospital, where the
body of the deceased was kept and conducted an inquest in the presence of
witnesses, and prepared the inquest report [Ex.P26]. Thereafter, PW11 is
said to have made a request to conduct postmortem on 31.01.2009 and sent
the body for postmortem through PW8-Constable. He examined further
witnesses and seized the dress of the deceased [M.O.34 to M.O.37] on
31.01.2009.
(iv) PW11, while he was in search of the accused in the instant case,
apprehended A1 and A6 at Nallur check post on suspicion. A1 and A6 had
given a confession statement, and pursuant to the confession statement of
A1, the investigation officer seized the knife [M.O.3], under the seizure
mahazar [Ex.P6] on 26.02.2009 at 7.30pm. The admissible portion of the
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confession of A1 is marked as Ex.P4.
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(v) Pursuant to the confession of A6, PW11 seized the motorcycle
Yamaha RX 100 bearing Regn.No.KA35H3155 [M.O.5] and a knife
[M.O.4] under the seizure mahazar (Ex.P7) on 26.02.2009 at 7.00pm. The
admissible portion of the confession of A6 is marked as Ex.P5.
(vi) On 26.02.2009, at about 8.15pm, PW11 arrested A2-Manju, A3-
Sunil @ Sunil Kumar and A4-R.Vinay.
(vii) On the confession given by A2, PW11 seized a two-wheeler viz.,
Bajaj Pulsar (M.O.6) bearing Regn.No.KA51H2052, knife (M.O.7), at about
11.30pm., under the seizure mahazar Ex.P9 on 26.02.2009 at 11.30pm. The
admissible portion of the confession of A2 is marked as Ex.P8.
(viii) On the confession given by A3, PW11 seized a knife, plaster,
rope, and a black colour bag [M.O.8 to M.O.11] at about 12.30am on
27.02.2009, under the seizure mahazar (Ex.P11). The admissible portion of
the confession of A3 is marked as Ex.P10.
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(ix) On the confession given by A4, PW11 seized a two-wheeler viz.,
a grey-coloured Pulsar (M.O.12) bearing Regn.NoKA 51E189, knife
(M.O.13), at about 1.00am., under the seizure mahazar Ex.P13 on
27.02.2009 at 1.00am. The admissible portion of the confession of A4 is
marked as Ex.P12.
(x) Thereafter, PW11 is said to have seized certain gold jewels
(M.O.14 to M.O.20) at A1's residence in Bangalore on the confession given
by A1 at about 3.30am on 27.02.2009. Thereafter, on the confession of A6,
PW11 seized gold Aaram (M.O.28) weighing 41 grams at his house in
Bangalore;
(xi) PW12, the second investigation, officer took up the investigation
thereafter, and he arranged for the conduct of Test Identification Parade on
25.03.2009. Thereafter, he examined the other witnesses and sent the
material objects for examination by the Forensic Science Laboratory, and
after completion of the investigation, he filed a final report on 20.04.2009
for the offence under Section 449, 395, 396, and 395 r/w 397 IPC, before
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the learned Judicial Magistrate No.II, Hosur.
(xii) On the appearance of the appellants, the provisions of Section
207 Cr.P.C. were complied with, and the case was committed to the Court
of Session in S.C.No.114 of 2009 and was made over to the Additional
District and Sessions Court, Hosur, for trial. The trial Court framed charges
u/s.449, 396, and 395 r/w 397 IPC as against A1 and A4 and; u/s.449, 396
r/w 34 and 395 r/w 397 as against A2, A3, and A5; and when questioned,
the appellants pleaded 'not guilty'.
(xiii) To prove the case, the prosecution examined 12 witnesses and
marked 31 exhibits and 37 material objects. When the appellants were
questioned u/s.313 Cr.P.C. on the incriminating circumstances appearing
against them, they denied the same. No witness was examined on the side of
the appellants, nor any document marked.
(xiv) During the course of trial, since A6 absconded the case against
him was split up and A1 to A5 were tried. Subsequently, A1 also died
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during the trial.
(xv) The Trial Court on appreciation and evaluation of oral an
documentary evidence, convicted the other accused viz., the appellants/A2,
A3, A4 and A5 and sentenced them as follows:
Sl.No. Offence under Section Sentence imposed
449 IPC Each of them to undergo RI for ten
years and pay fine of Rs.1000/- in
default to undergo SI for six
months.
396 r/w 34 IPC Each of them to undergo life
A2, A3 imprisonment and pay fine of
and A5 Rs.1000/- in default to undergo SI
for six months.
395 r/w 397 IPC Each of them to undergo life
imprisonment and pay fine of
Rs.1000/- in default to undergo SI
for six months.
449 IPC To undergo RI for ten years and
pay fine of Rs.1000/- in default to
undergo SI for six months.
396 IPC To undergo life imprisonment and
A4 pay fine of Rs.1000/- in default to
undergo SI for six months.
395 r/w 397 IPC To undergo life imprisonment and
pay fine of Rs.1000/- in default to
undergo SI for six months.
The sentences imposed were directed to run concurrently.
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Hence, the accused/A2, A3, A4 and A5 have preferred these three appeals
challenging the above conviction and sentence.
4. Heard, Mr.V.Karthick, learned senior counsel for the appellant/A4
in Crl.A.No.218 of 2020; Mr.B.Mohan, learned counsel for the appellant/A2
in Crl.A.No.511 of 2020 and for appellants/A3 and A5 in Crl.A.No.378 of
2020, and Mr.A.Gokulakrishnan, learned Additional Public Prosecutor
appearing for the respondent/state.
5. Mr.V.Karthick, learned senior counsel for the appellant/A4, led the
arguments on behalf of all the appellants. The learned senior counsel made
the following submissions.
(i) that the Test Identification Parade (TIP) suffers from
several infirmities, and hence, the identification said to have been
made by PW1 and PW2 in the TIP proceedings and in the dock
cannot be believed. The witnesses PW1 and PW2 have not stated
the identifying features of the accused while giving the complaint,
and therefore, the identification, even assuming it was made at the
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TIP proceedings, would not have evidentiary value.
(ii) the learned Magistrate [PW10] who conducted the TIP
had stated that the TIP was conducted at Central Prison, Salem,
and that PW1 and PW2 gave statements in Tamil. However, the
proceedings reveal that the TIP was conducted at Sub Jail,
Paramathi, Vellore, and the witnesses PW1 and PW2, were not
conversant with Tamil language. Hence, their statements were
translated by one Pappu (not examined). The learned senior
counsel also pointed out the violation of the guidelines issued by
the Hon'ble Supreme Court for the conduct of the TIP.
(iii) PW1 and PW2, whose version that initially, two
persons came on 28.01.2009; that four others came to the house
on 29.01.2009; and that they spoke with the deceased, cannot be
believed. Admittedly, the deceased knew only Urdu, Bengali, and
Hindi, whereas, the accused were not conversant with those
languages.
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(iv) The recovery made from A1's house is not pursuant to
A1's confession, and hence, it cannot be attributed to A1. Further,
there is nothing to show how and on what information the
investigation officer went to A1's house in Bangalore, and that it
was really A1's house.
(v) The recoveries of the weapons cannot be believed, as
PW5-VAO himself admitted that his signatures were obtained at
the police station.
(vi) Though PW1 had admitted that he had called the
services of the finger print expert and the sniffer dog squad, the
reports of both the finger print expert and the sniffer dog squad
have been suppressed by the prosecution.
6. The learned counsel for A2 and the learned counsel appearing for
A3 and A5, adopted the submissions made by the learned senior counsel for
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A4. In addition, the learned counsel appearing for A3 and A5 submitted
that the seizure said to have been made on the confession given by A5
cannot be believed, as PW5, who is said to have signed as a witness in the
Seizure mahazar (Ex.P17) dated 09.04.2009 had stated that he had not
signed any documents after 26.02.2009. Therefore, the learned counsel
prayed to set aside the judgment of conviction and sentence passed by the
trial Court and to acquit the appellants/accused.
7. The learned Additional Public Prosecutor per contra submitted that
PW1 and PW2 are reliable witnesses and there is no reason why they should
falsely implicate the accused. The recovery of jewels from A1 and A6
would confirm the fact that the accused were involved in the occurrence that
took place at the house of the deceased. Minor inconsistencies in the
evidence and witnesses would not affect the prosecution case as a whole.
The defect in the investigation, if any, would also not affect the prosecution
case, which is otherwise established through the evidence of eyewitnesses.
The defence had not elicited any answers in the cross examination, which
would make the versions of the witnesses unreliable. The learned
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Additional Public Prosecutor therefore, submitted that the judgment of
conviction rendered by the trial Court is in accordance with the law and
there is no reason to interfere with the same.
8. We have carefully perused the materials available on record.
9. It is a case of murder for gain. The prosecution case rests on the
evidence of eyewitnesses who identified the accused in the dock and the
recovery of certain material objects from the accused. It is the case of the
prosecution that A1 and A6 were initially arrested on suspicion, and on their
confession, the weapons used by those two accused and certain gold articles
were seized. A1 died during the trial. A6 absconded and therefore, the case
against him was split up. Accused Nos.2, 3, 4, and 5 are the appellants who
have filed the above three appeals.
10. Admittedly, the accused are strangers to PW1 and PW2. The
identification of the accused by PW1 and PW2 therefore assumes
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significance. It is also the prosecution case that A5, one of the appellants in
Crl.A.No.378 of 2020, was not identified by PW1 and PW2 in TIP, and he
was identified for the first time in Court. All the appellants, barring A5,
were arrested at 8.15pm on 26.02.2009. On A3's confession, a plastic knife
and a jute rope were recovered. On A2's confession, a knife was recovered.
Similarly, on the confession of A4, another knife was recovered. Earlier on
the same day A1 and A6 were arrested. But, the next day morning at about
3.00am, according to the prosecution, the investigation officer had been to
the house of A1 at Bangalore and seized gold jewels and certain silver
articles.
11. On 16.03.2009, the TIP was conducted to identify A1 to A4 and
A6. There was a delay of 18 days in conducting the TIP. We find that the
learned Magistrate [PW10], who conducted the TIP, had stated at least in
two places during her examination that she went to Salem Central Prison for
conducting the TIP. However, the record of proceedings for TIP (Ex.P24)
reveals that the TIP was conducted at Sub Jail, Paramathi, Vellore. Even
assuming that this by itself would not affect the prosecution case in any
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manner as it could be a genuine mistake by the learned Magistrate while
deposing, however, we find another aspect that might be of some relevance.
PW10, the learned Judicial Magistrate had stated in her cross-examination
that PW1 and PW2 made their statements in Tamil language. The relevant
portion reads as follows:
“my;ypahghD. ghpjhghD ,UtUk; jkpH; bkhHpapy;
ngrpdhu;fs;”
She also asserts during further cross-examination that there were no
translators when she recorded the statements of PW1 and PW2. The relevant
portion reads as follows:
“bkhHp bgau;g;ghsu; ,Ue;jhuh vd;why; ,y;iy”
12. However, both PW1 and PW2 have deposed that they were not
conversant with Tamil language and their statements were translated by one
Pappu, who was their neighbour, while they were examined in TIP
proceedings. The relevant portion reads as follows:
“b$apypy; milahs mzptFg;g[ elj;jpanghJ
eh';fs; milahsk; fhl;oanghJ eh';fs;
cwpe;jpapy; brhd;dij jkpHpy; ePjpgjpf;F bkhHp
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bgau;j;J brhd;dtu; gg;g[ vd;gtu; gf;fj;J
tPl;Lf;fhuu;/”
13. It is seen that Pappu has not been examined by the prosecution.
Above all, we find that PW2 admitted in the cross-examination that the
jewels were shown to her at the police station. She had also submitted that
the police had also shown the photographs of the accused. The relevant
portion reads as follows:
“nghyPrhu; vd;dplk; vg;bghGJ eifiaf;
fhl;odhu;fs; vd;W bjhpahJ/ eiffis
nghyPrhu; fhty;epiyaj;jpy; fhl;Lk;nghJ M$u;
vjphpfSk; m';F ,Ue;jhu;fs;/ nghyPrhu;
vjphpfspd; g[ifg;gl';fis vd;dplk;
fhl;odhu;fs; vd;why; rhpjhd;/”
14. Though PW1 had denied the suggestion that she saw the accused
at the police station, she would admit in the cross examination that she saw
one of the accused at the police station on 09.04.2009.
15. Going by the admission of PW1 and PW2 and the infirmities that
we have pointed out in the evidence of the learned Magistrate [PW10], it is
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highly unsafe to believe that PW1 and PW2 had identified the correct
suspects in the TIP. Once the identification in the TIP becomes suspect, the
identification of the witness in Court becomes meaningless. In this regard,
we would like to refer to the observations of the Hon'ble Supreme Court in
Shaik Umar Ahmed Shaikh and another Vs State of Maharashtra
reported in 1998 (5) SCC 103, which is extracted hereunder.
“8. …………But, the question arises: what value could be attached
to the evidence of identity of accused by the witnesses in the court when the
accused were possibly shown to the witnesses before the identification
parade in the police station. The Designated Court has already recorded a
finding that there was strong possibility that the suspects were shown to the
witnesses. Under such circumstances their identification in the court by the
witnesses was meaningless………”.
16. In Ravindra Vs State of Maharashtra reported in (1998) 6 SCC
609, the Hon'ble Supreme Court has held as follows:
“8………….The identification parades belong to the investigation
stage and they serve to provide the investigating authority with materials to
assure themselves if the investigation is proceeding on the right lines. In
other words, it is through these identification parades that the investigating
agency is required to ascertain whether the persons whom they suspect to
have committed the offence were the real culprits—and not by showing the
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suspects or their photographs”.
17. The same view was reiterated in Krishnan Kumar Malik Vs State
of Haryana reported in (2011) 7 SCC 130, wherein the Hon'ble Supreme
Court has observed as follows:,
“26…………Admittedly, she was already shown the appellant and the
other accused at the police station after they were arrested. Thus, her dock
identification in the court had become meaningless”.
18. Further, identification features were not stated. Though PW1
would state in her evidence that she informed the police about the
identification features, however we find no such features in the complaint,
except stating that two of the accused were tall. In this regard, our Hon'ble
Supreme Court in Md.Sajjad @ Raju @ Salim Vs. State of West Bengal,
reported in (2017) 11 SCC 150, stated that where the witnesses are not
known to the accused, the identification features have to be stated, without
which the identification in the Test Identification Parade will lose its
significance, particularly when there is a delay in the conduct of Test
Identification Parade. The relevant portion is extracted hereunder:
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“16. In the case in hand, apart from the fact that there was delay in
holding the Test Identification Parade, one striking feature is that none of the
concerned prosecution witnesses had given any identification marks or
disclosed special features or attributes of any of those four persons in general
and the accused in particular. Further, no incident or crime had actually taken
place in the presence of those prosecution witnesses nor any special
circumstances had occurred which would invite their attention so as to
register the features or special attributes of the concerned accused. Their
chance meeting, as alleged, was in the night and was only for some fleeting
moments.
17. In Subash Vs. State of U.P. ((1987) 3 SCC 331), the aspects of
delay as well as absence of any special features for identification and the
effect thereof were considered by this court in paragraphs 8 and 9 as under:-
“8. Apart from this infirmity we further find that Shiv
Shankar was not put up for test identification parade promptly.
The identification parade has been held three weeks after his
arrest and no explanation has been offered for the delay in
holding the test identification parade. There is, therefore, room
for doubt as to whether the delay in holding the identification
parade was in order to enable the identifying witnesses to see
him in the police lock-up or in the jail premises and make a note
of his features.
9. Over and above all these things there remains the fact
that a sufficiently long interval of time had elapsed between the
date of occurrence when the witnesses had seen Shiv Shankar for
a few minutes and the date of the test identification parade. It is,
no doubt, true that all the three witnesses had correctly identified
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Shiv Shankar at the identification parade but it has to be borne in
mind that nearly 4 months had elapsed during the interval. It is
relevant to mention here that neither in Exhibit Kha-1 nor in
their statements during investigation, the eyewitnesses have
given any descriptive particulars of Shiv Shankar. While
deposing before the Sessions Judge they have stated that Shiv
Shankar was a tall person and had “sallow” complexion. If it is
on account of these features the witnesses were able to identify
Shiv Shankar at the identification parade, they would have
certainly mentioned about them at the earliest point of time
because their memory would have been fresh then. Thus in the
absence of any descriptive particulars of Shiv Shankar in Ex.
Kha-1 or in the statements of witnesses during investigation, it
will not be safe and proper to act upon the identification of Shiv
Shankar by the three witnesses at the identification parade and
hold that he was one of the assailants of Ram Babu. As pointed
out in Muthuswami v. State of Madras (AIR 1954 SC 4=1954
Cri LJ 236 )where an identification parade was held about 2½
months after the occurrence it would not be safe to place reliance
on the identification of the accused by the eyewitnesses. In
another case Mohd. Abdul Hafeez v. State of A.P. (AIR 1983 SC
367). It was held that where the witnesses had not given any
description of the accused in the first information report, their
identification of the accused at the sessions trial cannot be safely
accepted by the court for awarding conviction to the accused. In
the present case there was a long interval of nearly 4 months
before the test identification parade was held and it is difficult to
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accept that in spite of this interval of time the witnesses were
able to have a clear image of the accused in their minds and
identify him correctly at the identification parade.”
18. Similarly the issue of delay weighed with this court in Musheer
Khan vs. State of M.P.((2010) 2 SC 748) in discarding the evidence regarding
test identification as under:
“28. Insofar as the identification of A-5 is concerned that
has taken place at a very delayed stage, namely, his identification
took place on 24-1-2001 and the incident is of 29-11-2000, even
though A-5 was arrested on 22-12-2000. There is no explanation
why his identification parade was held on 24-1-2001 which is
after a gap of over a month from the date of arrest and after
about 3 months from the date of the incident. No reliance ought
to have been placed by the courts below or the High Court on
such delayed TI parade for which there is no explanation by the
prosecution.”
19. In the instant case none of the witnesses had disclosed any features
for identification which would lend some corroboration. The identification
parade itself was held 25 days after the arrest. Their chance meeting was also
in the night without there being any special occasion for them to notice the
features of any of the accused which would then register in their minds so as
to enable them to identify them on a future date. The chance meeting was also
for few minutes. In the circumstances, in our considered view such
identification simplicitor cannot form the basis or be taken as the fulcrum for
the entire case of prosecution. The suspicion expressed by PW 8 Saraswati
Singh was also not enough to record the finding of guilt against the appellant.
We therefore grant benefit of doubt to the appellant and hold that the
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prosecution has failed to establish its case against the appellant.”
19. We may point out another aspect in this case with regard to the
evidence of PW1. PW1 had stated that she had seen the accused on all the
three days viz., on 28.01.2009 that two of them visited the house; on
29.01.2009 that four of them came; and on 30.01.2009, when all the six
came. However, in the cross-examination, she would state that she had not
seen the accused, who came to the house on the 2nd day. The relevant
portion reads as follows:
“,uz;lhtJ ehs; te;jtu;fis ehd; ahiua[k; ghu;f;ftpy;iy”
20. Be that as it may, PW5-VAO, who said to have signed as a
witness for the recovery of jewels on the confession of A1 and the recovery
of knives on the confession of the other accused, had stated that he had not
gone along with the police for seizure and that he had signed the documents
at the police station. The relevant portion reads as follows:
“ehd; nghyPrhUld; bry;ytpy;iy.
Vjphpfis Vw;fdnt ifJ bra;J
fhty;epiyaj;jpy; itj;J. Mtz';fs;
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midj;Jk; jahu; bra;J itj;jpUe;jjpy;
vd;ida[k; cjtpahsiua[k; fhty;epiyaj;jpw;F
tur;brhy;yp ifbahg;gk; bgw;Wf;bfhz;lhu;fs;
vd;why; rhpjhd;”
21. Strangely, we find that none of the Material Objects, which is
alleged to have been taken from the house of the deceased, viz., M.O.14 to
M.O.28, have been specifically shown to witnesses PW1 and PW2 for
identification. These Material Objects were marked through PW5-VAO.
PW1 and PW2 make a general statement that the jewels shown to them were
taken from their house. Though it is the case of the prosecution that jewels
were recovered from the house of A1 in Bangalore, there is no further
evidence to show on what basis the investigation officer went to Bangalore,
and there is no evidence further to confirm that it was A1's house. The
admissible portion of the confession of A1 does not refer to the pointing of
jewels. In any case, we find that no jewels have been recovered from the
appellants herein. The jewels were admittedly recovered only at the
instance of A1 or A6 or at the residence of A1. Though certain jewels are
said to have been recovered on the confession of A5 by the seizure
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Crl.A.Nos.218, 511 and 378 of 2020
Mahazar-Ex.P17, we find that the jewels have not been identified by PW1
and PW2. A5 has also not been identified by the witnesses in the TIP
proceedings. PW5-VAO further stated that he had not signed any
documents after 26.02.2009. However, he is said to be a witness in the
mahazar for the seizure of jewels at A5's instance, which took place on
09.04.2009.
22. We may also note another aspect in this case, that may be
relevant. It is the version of PW1 that the deceased was taken to the
hospital after the neighbours came and opened the door, which was locked
from outside by the accused. It is the prosecution case that the deceased
was taken to Hosur, Government Hospital and was declared dead at 5.25pm
by the doctor, as could be seen from the inquest report. However, the said
doctor has not been examined by the prosecution. The examination of the
doctor at the Government Hospital would have disclosed the information
given by the Doctor to the police about the medico-legal case. However,
the prosecution projects as if the complaint was given by PW1 at the police
station at 6.30pm. The genesis has been suppressed by the prosecution.
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Crl.A.Nos.218, 511 and 378 of 2020
23. We also find that PW1 stated that the Fingerprint Expert had
examined the cupboard and other places and lifted chance finger prints.
PW11, the investigation officer, also stated that a fingerprint expert was
summoned. However, we find that the report of the expert, has not been
furnished by the prosecution. We therefore have to necessarily draw the
inference that the said report is not favourable to the prosecution. Further,
PW1 had stated that a police sniffer dog was brought to the place of
occurrence, which is admitted by PW11. The report of the Sniffer Dog
Squad has also been suppressed by the prosecution.
24. That apart, the plaster with bloodstains, said to have been used by
the accused to gag the mouth and nose of the deceased, and jute ropes (2
nos.), were seized at the place of occurrence under the seizure mahazar
[Ex.P3]. According to the investigation officer, at A3's confession, plaster
and jute ropes (5 nos.) measuring 1½ meters were recovered under Seizure
Mahazar[Ex.P11]. However, there is absolutely no evidence for comparing
the plaster seized at the scene of the occurrence with the plaster recovered
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Crl.A.Nos.218, 511 and 378 of 2020
from A3. We are of the view that this cannot be brushed aside as mere
infirmities, which do not affect the prosecution case. The cumulative effect
of all the infirmities that we have pointed out above throws serious doubt on
the prosecution case.
25. To sum up, from the above discussion of the evidence, it would be
clear that the identification of the accused in the TIP cannot be accepted as
witnesses had seen the accused at the police station and also their
photographs. The TIP was conducted nearly 18 days after the date of the
arrest of the accused. A5 was not identified in the TIP. The witnesses have
not given any identifying features in the complaint or in their statements
recorded during investigation except for stating that two of them were tall.
No articles said to have been taken from the house were recovered from the
appellants except from A5. The jewels alleged to have been seized by the
respondent were not identified by PW1 and PW2, and the jewels allegedly
seized from A1 and A6 were not marked by PW1 and PW2, and they made a
general statement in Court that the jewels shown to them were taken from
their house. Material Objects were marked only through PW5-VAO, whose
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Crl.A.Nos.218, 511 and 378 of 2020
evidence is unreliable as he admits that he had signed all the documents at
the police station. Further, PW5 would also admit that he had not signed
any document after 26.02.2009 pertaining to A5. Whereas A5 was arrested
only on 09.04.2009. Therefore, the recovery of jewels from A5 also
becomes doubtful.
26. In the above circumstances, the identification of the accused only
in the dock 2 ½ years after the occurrence is meaningless, and it is highly
unsafe to convict the appellants only on that basis. The recovery of the
knives and other articles from the accused, which is doubtful as stated
earlier does not lead to any interference in favour of the prosecution.
Therefore, the conviction and sentence imposed upon the appellants by the
trial Court are liable to be set aside.
27. In the result, this Criminal Appeals are allowed and the
appellants, viz., A2, A3, A4 and A5, are acquitted of all charges, and they
are directed to be set at liberty forthwith unless their custody is required in
connection with any other case. The conviction and sentence passed in
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Crl.A.Nos.218, 511 and 378 of 2020
S.C.No.114 of 2009on the file of the learned Additional District and
Sessions Judge, Hosur, vide judgment dated 23.01.2020, are set aside. The
fine amount, if any, paid by the appellants shall be refunded. Bail bond, if
any, executed shall stand discharged.
(S.S.S.R.,J.) (S.M.,J.)
Index : yes/no 05.01.2024
Neutral citation : yes/no
ars
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Crl.A.Nos.218, 511 and 378 of 2020
To
1. The Additional District and Sessions Judge,
Hosur.
2. The Inspector of Police,
Mathigiri Police Station,
Krishnagiri District.
3. The Superintendent,
Central Prison, Vellore.
4. The Public Prosecutor,
High Court, Madras
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Crl.A.Nos.218, 511 and 378 of 2020
S.S.SUNDAR,J.
AND
SUNDER MOHAN,J.
ars
Pre-delivery common judgment in
Crl.A.Nos.218, 511 & 378 of 2020
05.01.2024
https://www.mhc.tn.gov.in/judis
