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2010 DIGILAW 2663 (MAD)

Paramasivam v. State by the Inspector of Police

2010-07-01

K.N.BASHA

body2010
Judgment :- Crl.A.No.1782/2003 is preferred by A1 and Crl.A.No.1744/2003 is preferred by A2 challenging their conviction and sentence passed on them by the learned Additional District and Sessions Judge, Fast Track Court No. 2, Chennai in SC.No.68/2002 by the Judgment dated 20.11.2003 convicting each of the accused for the offences u/s.120 [b], 147, 363, 419, 420 and 395 IPC and sentenced them as follows:- Accused Convicted under section Sentence awarded Fine amount awarded Sentence awarded if defaulted in payment of fine amount A1 and A2 120[b] IPC Each of the accused to undergo 2 years rigorous imprisonment. --A1 and A2 147 IPC Each of the accused to undergo 2 years rigorous imprisonment. --A1 and A2 363 IPC Each of the accused to undergo 5 years rigorous imprisonment. Rs.1,000/- to each of the accused. Each of the accused to undergo 2 months simple imprisonment. A1 and A2 419 IPC Each of the accused to undergo 2 years rigorous imprisonment. --A1 and A2 420 IPC Each of the accused to undergo 5 years rigorous imprisonment. Rs.1,000/- to each of the accused. Each of the accused to undergo 2 months simple imprisonment. A1 and A2 395 IPC Each of the accused to undergo 10 years rigorous imprisonment. Rs.5,000/- to each of the accused. Each of the accused to undergo 6 months simple imprisonment. The sentences were ordered to run concurrently. 2. Originally there are 6 accused in this case and A2 to A6 were absconding and as such, the cases against them have been split up. Therefore, only A1 and A2 have faced the trial and they have been convicted and sentenced as stated above. 3. The background facts in a nutshell are here under:- (a) P.Ws.1 and 2 were working under their employer P.W.4, who was doing jewelry business in the name and style of “NAVILLA JEWELERY” situated at Coimbatore. On 19.08.1995, P.Ws.1 and 2 have taken the jewelleries from P.W.4 for sale. As the jewelleries did not fetch higher price, P.W.4 instructed them to bring back the jewelleries to Coimbatore. (b) On 22.08.1995 at 9.00 p.m., P.Ws.1 and 2 took an auto driven by P.W.3-driver, from Pondy Bazaar to Central, Chennai and they were carrying the jewelleries in a suitcase. While they were proceeding in the auto, the auto was intercepted by a Black Colour Ambassador Car bearing No. TMM 135. (b) On 22.08.1995 at 9.00 p.m., P.Ws.1 and 2 took an auto driven by P.W.3-driver, from Pondy Bazaar to Central, Chennai and they were carrying the jewelleries in a suitcase. While they were proceeding in the auto, the auto was intercepted by a Black Colour Ambassador Car bearing No. TMM 135. The persons came in the car included A1 and A2 and other accused and they claimed that they are the CBI officials. A1 and A2/appellants pulled P.Ws.1 and 2 from the auto and pushed them inside the car and they have taken the jewelry and cash of Rs.11,000/- from them and also took away Rs.1,200/- from P.W.1’s pocket and pushed them out after some time. On enquiry, P.Ws.1 and 2 found that the area was Villivakkam. P.Ws.1 and 2 came to know that they are not the genuine CBI officials. They came back to Oorvasi Lodge at T.Nagar and informed their owner, P.W.4. Thereafter, they went and informed Pondy Bazaar Police Station about the occurrence and as the Pondy Bazaar police refused to take the complaint, instructed them to go the Police Station at the scene of occurrence. P.Ws.1 and 2 returned back to their lodge. Next day, i.e., on 23.08.1995, P.W.4 the employer of P.Ws.1 and 2 came from Coimbatore. (c) P.W.1 stated that P.W.4 went to T.Nagar Police Station and gave report, Ex.P.1. P.W.4 stated that he gave a written report to Inspector of Police, Crime Branch, Chennai. P.W.11, the Inspector of Police, Crime Branch, said to have received the report given by P.W.1 through the Additional Commissioner (Crime Branch) and registered a case on 26.08.1995 in Cr.No.983/1995 for the alleged offences 419 and 420 IPC. Ex.P.20 is the FIR. (d) P.W.11, the Inspector of Police took up the investigation and examined P.W.3, the auto driver and one Prabhakaran on 27.08.1995. He examined P.W.4 on 28.08.1995. (e) P.W.15, the Inspector of Police took up further investigation and further added the offence u/s.395 IPC as per the report Ex.P.17, sent to the Magistrate court. On 27.11.1996, P.W.15 examined P.W.4. On 23.11.1996 at 5.00 p.m., he arrested A1 at Vannarapettai Cement Road. In pursuance of the admissible portion of the confession of A1, he has recovered Rs.1 lakh-M.O.1 in the presence of P.Ws.13 and 14 under Ex.P.20. He examined P.W.3. On 06.12.1996 at 1.00 p.m. he arrested A2 at his residence. On 27.11.1996, P.W.15 examined P.W.4. On 23.11.1996 at 5.00 p.m., he arrested A1 at Vannarapettai Cement Road. In pursuance of the admissible portion of the confession of A1, he has recovered Rs.1 lakh-M.O.1 in the presence of P.Ws.13 and 14 under Ex.P.20. He examined P.W.3. On 06.12.1996 at 1.00 p.m. he arrested A2 at his residence. He has made arrangement for conducting Identification Parade in respect of A1 and A2. (f) P.W.8-the learned XVI Metropolitan Magistrate, George Town, Chennai, conducted the Identification Parade in respect of A1 on 21.12.1996 at 11.00 a.m. as per the order in Ex.P.7. P.Ws.1 and 2 identified A1. Ex.P.10 is the identification proceedings in respect of A1. On the same day, P.W.8 conducted identification parade in respect of A2. A2 was identified by P.Ws.1 and 2. Ex.P.11 is the proceedings in respect of A2. (g) P.W.15 made a requisition in Ex.P.21 to the Magistrate court to record the confessional statement of A2. P.W.8 after following the procedure, recorded the confession of A2 on 27.12.1996. Ex.P.3 is the confession recorded by P.W.8. (h) P.W.15, the investigating officer in continuation of his investigation examined the other witnesses and recorded their statements and after completion of the investigation, laid the charge sheet against the accused for the alleged offences u/s.419, 420, 363, 395, 149 read with 120-b IPC. 4. The prosecution, in order to substantiate its case, examined P.Ws1 to 15, filed Exs.P.1 to 22 and marked M.O.1. 5. When the accused were questioned u/s.313 Cr.P.C., in respect of the incriminating materials available against them through the evidence adduced by the prosecution, they have come forward with the version of total denial and stated that they have been falsely implicated in the case. They have examined D.Ws.1 to 4 and filed Exs.D.1 to 6 on their side. 6. Mr.V.Prakash, the learned senior counsel appearing for A1 and Mr.M.K.Subramanian, learned counsel appearing for A2, while assailing the impugned judgment of conviction, vehemently contended that the prosecution has miserably failed to prove its case beyond reasonable doubt by adducing clear and cogent evidence and put forward the following contentions: “(A) Both A1 and A2 admittedly not known to P.Ws.1 and 2 and they claim to have identified A1 and A2 at the time of Identification Parade. But P.Ws.1 and 2 have categorically admitted that they have seen A1 and A2 at the Police Station prior to the conducting of identification parade. As per the evidence of P.W.15, the Inspector of Police, A1’s photo was also published in the newspapers. Therefore, no value could be attached to the identification of A1 and A2 at the time of identification parade and the same cannot be accepted. (B) The second piece of evidence relied on by the prosecution is the retracted judicial confession of A2 under Ex.P.3 said to have been recorded by P.W.8, the Magistrate and there is absolutely no corroboration from any independent witness available on record for the said retracted judicial confession. Ex.P.3 also contains mostly exculpatory statement and as such, it cannot be construed to be the judicial confession of A2. (C) The prosecution has not proved the recovery of M.O.1-Rs.1 lakh at the instance of A1 as the witnesses to speak about the recovery, viz., P.Ws.13 and 14 have turned hostile. P.W.15 also not stated clearly either in chief or in the cross- examination the recovery of Rs.1 lakh-M.O.1 at the instance of A1. On the other hand, it has been stated by P.W.15 that the said amount was recovered as produced by P.Ws.1 and 4. (D) There is no consistent version of giving report to the police as P.W.1 stated that he gave a report to T.Nagar Police Station whereas P.W.4 has stated that he has given a report to Crime Branch police. The prosecution has not adduced any evidence as to who has received the report from P.W.4.” 7. 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 evidence through P.Ws.1 and 2. It is contended that the evidence of P.Ws.1 and 2 is also corroborated by the evidence of P.W.3, auto driver and P.W.4, the jewelry shop owner. It is further contended that A1 and A2 have been identified by P.Ws.1 and 2 at the time of identification parade conducted by P.W.8, Magistrate. It is pointed out that the recovery of Rs.1 lakh-M.O.1 at the instance of A1 is also proved by the prosecution as per the recovery mahazar, Ex.P.20 as the same contains the specific statement of recovery at the instance of A1. It is pointed out that the recovery of Rs.1 lakh-M.O.1 at the instance of A1 is also proved by the prosecution as per the recovery mahazar, Ex.P.20 as the same contains the specific statement of recovery at the instance of A1. It is contended that though the witnesses for recovery, viz., P.Ws.13 and 14 have turned hostile, the evidence of P.W.15, the investigating officer who has recovered the said amount after recording the admissible portion of confession of A1, cannot be discarded. Therefore, there is no infirmity or inconsistency in the prosecution case warranting interference of this court. 8. I have given my careful and anxious consideration to the rival contentions put forward by either side and also thoroughly scanned the materials available on record. 9. The fact remains that the entire prosecution case rests mainly on the evidence of P.Ws.1 and 2. The prosecution made an attempt to corroborate the version of P.Ws.1 and 2 through the evidence of P.Ws.3 and 4 who are the auto drivers and jewelry shop owner respectively. In order to substantiate its case, the prosecution heavily placed reliance on the identification of A1 and A2 by P.Ws.1 and 2 in the identification parade conducted by P.W.8-Magistrate and the retracted judicial confession, Ex.P.3 recorded by P.W.8 from A2. 10. Let me now consider whether the prosecution has succeeded in establishing the guilt of the accused beyond reasonable doubt by placing reliance on the above said materials. 11. The first and foremost evidence relied on by the prosecution to implicate A1 and A2 is the identification of A1 and A2 by P.Ws.1 and 2 at the time of the identification parade conducted by P.W.8-Magistrate and thereafter, identifying before the court. It is pertinent to note that as per the admitted version of P.W.3, auto driver who has taken P.Ws.1 and 2 and whose auto has been intercepted by the accused through the Ambassador car, categorically stated that at the time of occurrence, it was dark at the scene and as such, he has not given the car number in his evidence or identification features of any one of the accused. It is seen that in the earliest document, Ex.P.1, P.W.1 has not given any specific identification features of any one of the accused except stating that one of the person may be aged about 40 years and he was wearing a brown colour safari. It is seen that in the earliest document, Ex.P.1, P.W.1 has not given any specific identification features of any one of the accused except stating that one of the person may be aged about 40 years and he was wearing a brown colour safari. Admittedly, both the accused are unknown to P.Ws.1 and 2. Such being the position, it is highly improbable for P.Ws.1 and 2 to identify A1 and A2 at the time of identification parade. Added to such infirmity, it is pertinent to note that both P.Ws.1 and 2 have categorically admitted in their cross examination that soon after the arrest of the accused, they have been informed by the police and they have seen the accused No.1 and 2 in the Police Station for the first time. This version of P.Ws.1 and 2 that they saw A1 and A2 in the Police Station for the first time, was also corroborated by the evidence of P.W.15, the investigating officer and his evidence would also reveal that A1’s photograph was published in the newspapers with the news item. Such, being the position, no value could be attached for the identification of A1 and A2 at the time of identification parade conducted by P.W.8 subsequently. 12. At this juncture, it is relevant to refer to the decision of the Honourable Apex Court in Budhsen V. State of U.P. reported in AIR 1970 SC 1321 , wherein it was held by the Honourable Apex Court as hereunder: “7. …. Keeping in view the purpose of identification parades the Magistrates holding them are expected to take all possible precautions to eliminate any suspicion of unfairness and to reduce the chance of testimonial error. They must, therefore, take intelligent interest in the proceedings, bearing in mind two considerations: (i) that the life and liberty of an accused may depend on their vigilance and caution and (ii) that justice should be done in the identification. …… The power to identify, it may be kept in view, varies according to the power of observation and memory of the person identifying and each case depends on its own facts, but there are two factors which seems to be of basic importance in the evaluation of identification. …… The power to identify, it may be kept in view, varies according to the power of observation and memory of the person identifying and each case depends on its own facts, but there are two factors which seems to be of basic importance in the evaluation of identification. The persons required to identify an accused should have had no opportunity of seeing him after the commission of the crime and before identification and secondly that no mistakes are made by them or the mistakes made are negligible.” The principle laid down by the Honourable Apex Court in the decision cited supra is squarely applicable to the facts of the instant case as in this case also admittedly A1 and A2 are unknown to P.Ws.1 and 2 and, even before conducting the identification parade by P.W.8, Metropolitan Magistrate, the accused were seen by P.Ws.1 and 2 at the police station as per their own admission. It is to be reiterated that P.W.15, Investigating Officer, has also stated that the photograph of the accused was published in the newspaper with the news item. Such being the position, no value could be attached in respect of the identification of the accused during the identification parade. Consequently, identification of the accused for the first time before the Court by P.Ws.1 and 2 also cannot be placed reliance. 13. It is pertinent to note that even the evidence of P.W.3, Autorikshaw driver, is not helpful to advance the case of the prosecution. P.W.3 has categorically admitted that he has stated to the police during investigation that he cannot identify the accused. P.W.3, who has taken P.Ws.1 and 2 in his auto at the time of occurrence, has stated that his auto was intercepted by the accused by coming in an Ambassador car. In view of the categorical admission of P.W.3, it is improbable for P.Ws.1 and 2 to identify A1 and A2. 14. Now coming to the next incriminating material relied on by the prosecution, viz., retracted confession, Ex.P.3, it is to be stated, at the outset, that Ex.P.3 contains mostly exculpatory statement and as such, it could not be construed to be a confession at all. Even assuming that Ex.P.3 is the confession recorded by P.W.8, the said confession of A2 is not corroborated by any other evidence adduced by the prosecution. 15. Even assuming that Ex.P.3 is the confession recorded by P.W.8, the said confession of A2 is not corroborated by any other evidence adduced by the prosecution. 15. It is relevant to refer to the decision of the Honourable Apex Court in respect of reliability of retracted confession in Parmananda Pegu v. State of Assam reported in AIR 2004 SC 4197 . The Honourable Apex Court in that decision has held as hereunder: “18. In order to be assured of the truth of confession, this Court, in a series of decisions, has evolved a rule of prudence that the Court should look to corroboration from other evidence. However, there need not be corroboration in respect of each and every material particular. Broadly, there should be corroborated so that the confession taken as a whole fits into the facts proved by other evidence. In substance, the Court should have assurance from all angles that the retracted confession was, in fact, voluntary and it must have been true. The law on the subject of retracted confession has been succinctly laid down by a three Judge bench of this Court in Subramania Goundan V. State of Madras (1958 Crl.L.J.238) which lays down: “The next question is whether there is corroboration of the confession since it has been retracted. A confession of a crime by a person, who has perpetrated it, is usually the outcome of penitence and remorse and in normal circumstances is the best evidence against the maker. The question has very often arisen whether a retracted confession may form the basis of conviction if believed to be true and voluntarily made. For the purpose of arriving at this conclusion the court has to take into consideration not only the reasons given for making the confession of retracting it but the attending facts and circumstances surrounding the same. It may be remarked that there can be no absolute rule that a retracted confession cannot be acted upon unless the same is corroborated materially. It was laid down in certain cases one such being in re Kesava Pillai (ILR 53 Mad 160) : (AIR 1929 Mad 837) (B) that if the reasons given by an accused person for retracting a confession are on the face of them false, the confession may be acted upon as it stands and without any corroboration. It was laid down in certain cases one such being in re Kesava Pillai (ILR 53 Mad 160) : (AIR 1929 Mad 837) (B) that if the reasons given by an accused person for retracting a confession are on the face of them false, the confession may be acted upon as it stands and without any corroboration. But the view taken by this court on more occasions than one is that as a matter of prudence and caution which has sanctified itself into a rule of law, a retracted confession cannot be made solely the basis of conviction unless the same is corroborated one of the latest cases being Balbir Singh v. State of Punjab AIR 1957 SC 216 , but it does not necessarily mean that each and every circumstance mentioned in the confession regarding the complicity of the accused must be separately and independently corroborated nor is it essential that the corroboration must come from facts and circumstances discovered after the confession was made. It was be sufficient, in our opinion, that the general trend of the confession is substantiated by some evidence which would tally with what is contained in the confession. ……” 19. In Pyare Lal v. State of Rajasthan ( AIR 1963 SC 1094 ), the same principle in regard to the evidentiary value of retracted confession has been reiterated. Subba Rao, J. speaking for a four Judge Bench, stated the legal position thus: “A retracted confession may from the legal basis of a conviction if the Court is satisfied that it was true and was voluntarily made. But it has been held that a Court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only, a rule of prudence. It cannot even be laid down as an inflexible rule of practice or prudence that under no circumstance such a conviction can be made without corroboration, for a Court may, in a particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the Court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars. ……” By the use of expression “corroboration of material particulars”, the Court has not laid down any proposition contrary to what has been clarified in Subramania Goundan’s case (supra) as regards the extent or corroboration required. The above expression does not imply that there should be meticulous examination of the entire material particulars. It is enough that there is broad corroboration in conformity with the general trend of the confession, as pointed out in Subramania Goundan’s case. The principle laid down by the Honourable Apex Court in the decision cited supra is squarely applicable to the facts of the instant case. In the case on hand, as already pointed out, there is absolutely no corroboration for the retracted confession, Ex.P.3, said to have been given by P.W.3 by any other evidence adduced by the prosecution much less any corroboration in general trend. Therefore, this Court has no hesitation to hold that the retracted confession, Ex.P.3, said to have been given by A2 is unreliable. 16. The yet another piece of evidence relied on by the prosecution is the recovery of Rs.1 lakh [M.O.1] at the instance of A1. P.W.15, the investigating officer stated that on the arrest of A1 and in pursuance of his admissible portion of his confession, M.O.1-Rs.1 lakh was recovered under Ex.P.20 in the presence of P.Ws.13 and 14. But the fact remains that both P.Ws.13 and 14 have turned hostile and they have not supported the prosecution case. P.W.15 also not clearly stated during his deposition in respect of recovery of Rs.1 lakh at the instance of A1. In the chief examination, it is stated that P.Ws.1 and 2 produced Rs.1 lakh and the same was reiterated even in his cross examination. Therefore, the prosecution has miserably failed to prove the recovery of M.O.1 [Rs.1 lakh] at the instance of A1. 17. The yet another disturbing feature in this case is that there is an inordinate and unexplained delay in giving the report to the police. The occurrence is said to have taken place on 22.08.1995 and whereas the report was given only on 26.08.1995. If the version of P.Ws.1 and 2 is true, they could have given the report immediately and their explanation to the effect that they have been asked by the T.Nagar police to give the complaint to the concerned jurisdiction police is again unbelievable and unacceptable. If the version of P.Ws.1 and 2 is true, they could have given the report immediately and their explanation to the effect that they have been asked by the T.Nagar police to give the complaint to the concerned jurisdiction police is again unbelievable and unacceptable. For the purpose of giving report to the concerned police, they could not have waited for a period of four days till the arrival of P.W.4. Therefore, the entire prosecution case is bristled with suspicious circumstances. 18. In view of the aforesaid infirmities, inconsistencies and inherent improbabilities, this court has to come to the irresistible conclusion that the impugned judgment of conviction is unsustainable. 19. Accordingly, the conviction and sentence imposed by the learned Additional District and Sessions Judge, Fast Track Court No.2, Chennai are set aside and the criminal appeals are allowed. 20. It is submitted before this court that the appellants are on bail. Accordingly, the bail bond, if any, executed by them shall stand terminated and the fine amount, if any, paid shall be refunded to them.