Research › Search › Judgment

Madras High Court · body

2010 DIGILAW 2323 (MAD)

Rameshkumar v. State by Inspector of Police

2010-06-09

K.N.BASHA

body2010
Judgment :- 1. This appeal is preferred by A1/appellant herein, challenging the conviction and sentence passed by the learned Additional District and Session Court (Fast Track court No.5) Thiruppur made in S.C.No.67/2001 by the judgment dated 22.7.2002, convicting the appellant/A1 along with A2 for the offence under Sections 392 IPC and sentenced each of them to undergo 7 years rigorous imprisonment and to pay a fine of Rs. 1,000/-in default to undergo 2 months rigorous imprisonment and sentenced them to 7 years rigorous imprisonment for the offence under Section 397 IPC and both the sentences were ordered to run concurrently. 2. Verification from the registry discloses that A2, Selvaraj @ Selvan has not preferred any appeal. There are totally three accused. A3, Krishnankutty @ Shakul @ Shakul Hameed died before the commencement of the trial. Therefore, A1, the appellant and A2 faced trial before the Trial Court. 3. The accused faced the trial under the following backdrop:- 3.1. PW1 is a resident of Thiruppur town and working in a Banian Company as Master. On 19.6.2000, he left from his house for a movie at 6.30 p.m. He was not able to get the ticket at Sivan theater and as such he returned to his friend one Ramaswamy’s house. While he was nearing Senkunthar Kalyana Mandapam, three persons questioned him as to where he is going and they snatched the amount from PW1 and threatened him at the knife point. M.O.1 is the knife. PW1 raised hue and cry. The accused also snatched Hero Jet cycle, M.O.2 from PW1. At that time, PW2 and PW3 came to that side in a motor bike and they attempted to catch the accused and at that time PW2 sustained injury on his left hand by getting into contact of M.O.1, the knife possessed by A1. PWs.2 and 3 went for treatment to one Dr. Mohanraj. 3.2. On 20.6.2000, PW1 went to Thiruppur North Police Station along with PW2 and gave a report to PW8, the Sub-Inspect of Police at 6.30 a.m. Ex.P1 is the report. PW8 registered the case in Crime No.681/2000 for the offence under Section 394 IPC. Ex. P11 is the F.I.R. PW8 sent the injured PW2 with a memo to the Government Hospital, Thiruppur for treatment. 3.3. The Doctor, PW6 attached to the Government Hospital, Thiruppur examined PW2 on 20.6.2000. He found the following injuries: 1. PW8 registered the case in Crime No.681/2000 for the offence under Section 394 IPC. Ex. P11 is the F.I.R. PW8 sent the injured PW2 with a memo to the Government Hospital, Thiruppur for treatment. 3.3. The Doctor, PW6 attached to the Government Hospital, Thiruppur examined PW2 on 20.6.2000. He found the following injuries: 1. Scratch mark in the left palm 5 cm. 2. Sutured wound in the left thumb 2 cm. PW6 is of the opinion that the injuries are simple in nature. Ex.P9 is the accident register. 3.4. PW9, the Investigating Officer took up the investigation and he went to the scene of occurrence and prepared observation mahazar Ex.P2 and rough sketch, Ex.P12, in the presence of witnesses. He examined PWs.1 to 3 and others. 3.5. On 20.6.2000, PW9 has arrested A2, as identified by PW1 at 5.30 a.m. In pursuance of A2’s confessional statement, Ex.P13, PW9 recovered Hero Jet cycle, M.O.2 and Ex.P4. On the same day, PW9 arrested A1, as identified by A2 at 8.00 a.m. In pursuance of confessional statement of A1, Ex.P14, PW9 recovered M.O.4, an amount of Rs.125/- and Ex.P6. A3 was arrested as identified by A1 & A2 on the same day at 10.30 a.m. In pursuance of the confessional statement of A3, Ex.P15, PW9 recovered M.P.5, Rs.105/-. Thereafter PW9 remanded the accused to judicial custody. 3.6. On 4.7.2000, he has given a request to the learned Judicial Magistrate to conduct identification parade. PW7, the learned Judicial Magistrate conducted identification parade on 20.7.2000 at 3.00 p.m. PW1 identified the accused 1 to 3. 3.7. PW9 after examining the Doctor and after receiving the accident register, completed the investigation and filed the charge sheet against the accused on 5.11.2000 for the offence under Section 341, 392 and 397 I.P.C. 3.8. The prosecution in order to substantiate its case, examined PWs.1 to 9, filed Exs.P1 to P15 to P15 and marked M.Os. 1 to 5. 4. When the accused were questioned under Section 313 Cr.P.C, in respect of incriminating materials appearing against them as per the evidence adduced by the prosecution, all the accused come forward with the version of total denial and they have not chosen to examine any witness on their side. 5. Mr. M. K. Subramanian, learned counsel appearing for the appellant vehemently contended that the prosecution miserably failed to prove its case by adducing clear and consistent evidence. 5. Mr. M. K. Subramanian, learned counsel appearing for the appellant vehemently contended that the prosecution miserably failed to prove its case by adducing clear and consistent evidence. It is contended that, there is inordinate delay in giving report to the police as the occurrence said to have taken place on 19.6.2000 at 6.30 p.m. whereas the report was given to the police only on the next day i.e., 20.6.2000 at 6.30 a.m. It is submitted that, there is no explanation for such inordinate delay. It is further contended that, as per the admission of PW2 in the cross examination, he has also given a report to the police, but the same was suppressed by the prosecution. 6. The learned counsel for the appellant would also submit that there is contradiction even in respect place of occurrence, as PW2 stated to the Doctor, PW6 to the effect that the occurrence was taken place at weaver’s Colony whereas the present prosecution version is that the occurrence said to have taken place at Senkunthar Kalyana Mandapam. It is pointed out that there are contradictions in material particulars between the evidence of PW1, PW2 and PW3 and the report Ex.P1 in respect of overt acts alleged against each of the accused regarding snatching of currency notes as well as the cycle. The learned counsel for the appellant would submit that there was no explanation from the prosecution as to how they have traced the accused and as such the arrest and recovery is unbelievable. It is pointed out that, without any explanation, straightaway the investigating officer, PW9 stated that he has taken PW1 to the bakery shop PW1 said to have identified A2 and thereafter only A2 identified A1 and subsequently A3. 7. The learned counsel for the appellant would also point out that the accused are unknown to PW1 and their names were not mentioned in Ex.P1 report and even the identification features of each and every accused was also not mentioned by PW1 in his report Ex.P1. It is contended that, such being the position, it is highly improbable and unbelievable to state that PW1 was able to identify the accused viz., A2 and thereafter A2 in turn identified other accused. It is contended that, such being the position, it is highly improbable and unbelievable to state that PW1 was able to identify the accused viz., A2 and thereafter A2 in turn identified other accused. It is pointed out that, inspite of the admitted version of the prosecution that all the accused have been already identified by PW1, the Investigating Officer has chosen to request the Magistrate, PW7 to conduct identification parade. It is contended that, in the cross examination, PW9 has admitted that, as there was suspicion about the identification of the accused by PW1 and as such he has chosen to request the Magistrate to conduct identification parade. The learned counsel for the appellant would proceed to submit on the above such contentions that the entire prosecution case suffers from serious infirmities and inconsistencies and the same is liable to be rejected. 8. Per contra, Mr. J.C. Durairaj, learned Government Advocate (Crl. side) would submit that the prosecution has proved its case by adducing clear and cogent version through PWs.1, 2 and 3. It is contended that PW1 identified A2 and thereafter A2 identified the other two accused which resulted in the recovery of cash amounts of Rs.75/-, Rs.125 and Rs.105 viz., M.Os.3, 4 and 5 and the weapon M.O.1, knife and M.O.2, cycle were also recovered, substantiating the prosecution version. It is contended that the version of PW2 corroborated by the medical evidence as the Doctor, PW6 found corresponding injuries. Therefore, it is submitted that the prosecution has proved its case beyond reasonable doubt and the appellant has been rightly convicted by the Trial court. 9. I have given my careful and anxious consideration to the rival contentions put forward by either side and thoroughly scanned through the entire evidence available on record. 10. At the outset, it is to be stated that there is an inordinate and unexplained delay in giving the First Information Report to the police. The fact remains that the occurrence was said to have taken place on 19.6.2000 at 6.30 p.m. and the report, Ex.P1, was given by PW1 only on the next day, i.e., on 20.06.2000 to PW8, sub Inspector of Police, at 6.30 a.m. It is the version of PW1 that PWs.2 and 3, on hearing about the occurrence from him, stated that the report can be given on the next day. The said version of PW1 is not corroborated by PWs.2 and 3. A perusal of the First Information Report, Ex.P11, discloses that the distance from the scene to the police station is only 2 kms. And nothing prevented PWs.1 to 3 to go the police station and to give the report. In view such inordinate delay, the possibility of exaggeration, embellishment and concoction in Ex.P1 cannot be ruled out. 11. The materials available on record also disclose that the earlier report given by PW2 was suppressed. PW2 has categorically admitted in his cross-examination that he has given a report to the police. But the said report was suppressed. The version of PW2 in his chief examination is that he was present with PW1 at the time of PW1 giving report in the police station. But the fact remains Ex.P1 was not attested by PW2. Therefore, it is quite clear that the prosecution has deliberately suppressed the earlier report given by PW2. In view of this infirmity, the delay in giving report to the police assumes importance and as such, the inordinate delay in giving report to the police as well as the suppression of the earliest report given by PW2 are fatal to the prosecution case. 12. The identification of the accused by PW1 is also highly unbelievable and unacceptable. PW1 categorically admitted in his cross-examination that he has not seen A1 to A4 prior to the date of occurrence. The names of the accused were also not mentioned in the First Information Report. It is pertinent to note that PW1 has not whispered a word about the identification features of any one of the accused in his report, Ex.P1. It is pertinent to note that as per the version of PW9, A2 was arrested as identified by PW 1 on 25.06.2000 and thereafter A2 identified A1 and A1 and A2 Identified A3. If such version of PW9 is true, then there is absolutely no need for conducting any identification parade as the accused 2 and 3 were already shown to PW1 and PW1 identified A2. But curiously identification parade was conducted by PW7, Judicial Magistrate and claimed that PW1 identified A1 to A3. If such version of PW9 is true, then there is absolutely no need for conducting any identification parade as the accused 2 and 3 were already shown to PW1 and PW1 identified A2. But curiously identification parade was conducted by PW7, Judicial Magistrate and claimed that PW1 identified A1 to A3. This court is of the considered view that such conducting of identification parade is nothing but a futile exercise in view of the evidence of PW9, Investigating Officer, that PW1 identified A2 and A2 identified A1 and A1 and A2 identified A3 and at that time, PW1 was present throughout. It is also needless to state that A1, A2 and A3 have already been shown to PW1 and as such, no value could be attached to the identification parade. 13. PWs.1 to 3 categorically stated that after the occurrence they have taken treatment form the Doctor one Mohanraj. The said doctor, who has examined injured witnesses, PWs.1 to 3, was not examined by the prosecution and such, non-examination of Dr. Mohanraj is fatal to the prosecution case as the prosecution withheld the examination of such material witness and as such, adverse inference has to be drawn against the prosecution case. 14. In view of the aforesaid infirmities, inconsistencies and improbabilities, this Court has come to the irresistible conclusion that the impugned judgment of conviction is unsustainable in law. Accordingly, the appeal is allowed and the judgment of the learned Additional District cum Session court (Fast Track Court No.5) Thiruppur in S.C.No.67/2001 dated 23.7.2002 is hereby set aside. 15. As already pointed out, as per verification of the records by the registry, the 2nd accused has not preferred any appeal. In view of the acquittal of the appellant who has been arrayed as A1, disbelieving the entire prosecution case, there is no justification in convicting the 2nd accused though he has preferred any appeal separately. The Hon’ble Apex Court in Arokia Thomas vs. State of T.N reported in (2006) 10 SCC 542, held as under: “3. In view of the acquittal of the appellant who has been arrayed as A1, disbelieving the entire prosecution case, there is no justification in convicting the 2nd accused though he has preferred any appeal separately. The Hon’ble Apex Court in Arokia Thomas vs. State of T.N reported in (2006) 10 SCC 542, held as under: “3. So far as accused Dhanasekaran is concerned, it is true that he has not preferred any appeal, but in view of our finding aforementioned that the prosecution case is highly doubtful and there is no ground for distinguishing the case of the accused Dhanasekaran from that of he appellant, we are of the view that he is also entitled to acquittal irrespective of the fact that he has not moved this Court.” Therefore, in view of the above said decision of the Hon’ble Apex Court, this Court is constrained to set aside the conviction and sentence imposed on A2 also, viz., Selvaraj @ Selvan, as per the judgment of the learned Additional district and Sessions Court (Fast Track Court No.5) Thiruppur dated 23.7.2002 in S.C.No.67/2001. Fine amount if any paid by the accused is to be refunded.