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2014 DIGILAW 4546 (MAD)

Karthick @ Karthikeyan v. Inspector of Police

2014-12-09

ARUNA JAGADEESAN

body2014
Judgment 1. These Criminal Appeals are filed against the judgment dated 11.5.2005 made in SC.No.526/2004 by the learned Additional District and Sessions Judge, FTC-IV, Chennai, thereby convicting and sentencing each of the Appellants/A1 and A3 for the offence under Section 341 of IPC to undergo Simple Imprisonment for one month and to pay a fine of Rs.500/-each, in default to undergo one month Simple Imprisonment and for the offence under Section 397 read with 34 of IPC to undergo Rigorous Imprisonment for 7 years and ordering the sentences to run concurrently. 2. The case of the Prosecution is that on 6.3.2002 at about 11.50 a.m. PW.1 Sakthivel and PW.2 Pradeep came in a Motor Cycle to the City Union Bank to deposit the sum of Rs.2,26,125/-of PW.5 Company, the Appellant/A3 and the other accused/A1, A2, A4 and A5, came in a motor cycle and intercepted the PW.2 while going inside the Bank after alighting from the bike driven by PW.1. A1 attacked PW.2 on the head, right hand shoulder and right hand, stomach with the knife. A2 threatened the public with knife and plucked the hand bang containing Rs.2,26,125/-from PW.2 and escaped in the motor cycle driven by A3 with the amount of Rs.2,26,125/-. Hence, they have been charge sheeted for the offence under Sections 341 and 397 read with 34 of IPC. 3. The case was taken on file in SC.No.526/2004 by the learned Additional District and Sessions Judge, FTC-IV, Chennai and necessary charges were framed. In order to bring home the charges against the accused, the prosecution examined PW.1 to PW.16 and also marked Exs.P1 to P21 and Mos.1 to 7. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused have come with the version of total denial and stated that they have been falsely implicated in this case. On the side of the defence, DW.1 to DW.4 were examined and Ex.D1 to D4 were marked. The court below, after hearing the arguments advanced on either side and looking into the materials available on record, acquitted A4 and A5 and found the appellants/A1 and A3 and A2 guilty and awarded punishments as referred to above, which is challenged in these Criminal Appeals. 4. Mr. The court below, after hearing the arguments advanced on either side and looking into the materials available on record, acquitted A4 and A5 and found the appellants/A1 and A3 and A2 guilty and awarded punishments as referred to above, which is challenged in these Criminal Appeals. 4. Mr. A. Shivkumar, the learned counsel for the Appellant/A1 raised the following contentions before this court:- Firstly, the evidence against the Appellant/A1 is that allegedly he was identified by PW.1 and PW.2, in the course of the identification parade. However, the said identification is replete with doubts, for none of these two witnesses had described the features of the accused in their statement prior to holding of identification parade. More importantly, PW.1 has not specifically identified this Appellant/A1 in the course of trial. PW.2 has not identified either A1 or A3 in the course of trial and stated that he does not remember the persons who attacked him. In spite of his not identifying the accused, the Prosecution did not chose to treat him hostile and put him to cross examination on this aspect. Therefore, he would submit that when the entire case of the Prosecution is based on the evidence of identification, as the accused are unknown to the witnesses, in the absence of substantive evidence of identification in court by those witnesses, conviction of the Appellants is not justified. Reliance was placed on the decisions of the Honourable Supreme Court reported in 2003-12-SCC-554 (Lal Singh and others Vs. State of UP) and 1988-1-SCC-14 (Hari Nath and another Vs. State of UP) wherein the Honourable Supreme Court has laid down that identification of the accused in the course of trial alone is substantive evidence and the identification in the test identification parade can be used only for corroboration. 5. The learned counsel for the Appellant/A1 further submitted that even the recovery is not proved in accordance with law, inasmuch as the confession of the accused, pursuant to which alleged recovery was made, has not been marked. On the other hand, Prosecution claimed that the father of the accused, namely, Venkatesan who was not examined, produced MO.1 Series (4 gold bangles weighing 53 gms), MO.3 series (One pair of ear studs weighing 5 gms) and MO.5 (Phillips Video CD) as proceeds of the crime under Ex.P8. On the other hand, Prosecution claimed that the father of the accused, namely, Venkatesan who was not examined, produced MO.1 Series (4 gold bangles weighing 53 gms), MO.3 series (One pair of ear studs weighing 5 gms) and MO.5 (Phillips Video CD) as proceeds of the crime under Ex.P8. The learned counsel pointed out the variance in the evidence regarding the time noted in the recovery mahazar Ex.P8 and the mahazar witness PW.9 who attested the said mahazar. The time of recovery is noted in Ex.P8 as 10.00 a.m. on 20.6.2002 whereas PW.9 stated that Ex.P8 was prepared only at 11.30 a.m. The learned counsel submitted that evidence is lacking with regard to the recovery of MO.2, cash amount of Rs.15,000/- (a portion of MO.4) under Ex.P9 as he turned hostile and PW.9 who is said to have attested Ex.P9 is silent about who produced MO.2 and cash of Rs.15,000/-. Therefore, he would submit that recovery of articles also not proved by the Prosecution beyond any doubt. 6. Assailing the conviction of the Appellant/A3, Mr. B. Nambiselvan, the learned counsel for the Appellant/A3 contended that though A3 was arrested and Prosecution claimed that a sum of Rs.5000/- was alleged to have been recovered from his person on 18.6.2002 under a mahazar by PW.16 the Investigating Officer in the presence of one Kannan and Raja, but those witnesses were not examined. Neither the mahazar nor the Form 95 under which the money was sent to the court were marked. It is pointed out that the money was sent to the court only on 12.4.2003 and all the above factors would throw a great doubt as to the recovery of the amount. 7. In so far as identification of the Appellant/A3 in the identification parade is concerned, the learned counsel submitted that the evidence placed on record indicated that the accused was shown to the witnesses in the Police Station prior to the test identification parade and therefore, the said identification loses its significance. The learned counsel for the Appellant/A3 contended that the aforesaid evidence on the basis of which conviction was recorded by the Trial Court is not reliable. 8. On the other hand, Mr. The learned counsel for the Appellant/A3 contended that the aforesaid evidence on the basis of which conviction was recorded by the Trial Court is not reliable. 8. On the other hand, Mr. VM.R. Rajendran, the learned Additional Public Prosecutor has vehemently contended that the Appellants have rightly been convicted on the basis of identification parade conducted immediately after arrest of the accused and it is a corroborative evidence of the Prosecution witnesses. The learned Additional Public Prosecutor would submit that the testimonies of the witnesses, namely, PW.1 and PW.2, on the point of identification, had not been demolished. Therefore, there is no reason to disbelieve the testimonies of those witnesses. The learned Additional Public Prosecutor further submitted that there is no requirement in law that the description of the accused should have been given by the witnesses either in their statement recorded under Section 161 of Cr.PC or before the Magistrate prior to holding of the test identification parade. 9. This court heard the learned counsel for the parties, perused the impugned judgement and the materials placed on record. 10. In the case of Rajesh Govind Jagesha Vs. State of Maharashtra (1999-8-SCC-428), the Honourable Supreme Court dealt with in detail about the precautions, which need to be observed for holding a test identification parade. Firstly, it has been observed that it is the duty of the Prosecution to prove that it has held the test identification parade in accordance with the requirement laid down by law. It is not the burden of the accused to plead and prove that the test identification parade was suffering from any lacunae. In the present case, admittedly, none of the eye witnesses, namely, PW.1 Sakthivel and PW.2 Pradeep Kumar describe the features of the Appellants/A1 and A3 either in their statement recorded under Section 161 of Cr.PC or prior to holding of the test identification parade before the Magistrate. Although they claim that they had seen the accused at the time of incident, but admittedly they are strangers and unknown to the witnesses. It is the contention of the accused that they had been shown to the witnesses, after arrest in the Police Station. The testimony of PW.1 and PW.2 indicated that the accused were shown to the accused prior to the conduct of the identification parade. Therefore, the identification of the accused in the test identification parade becomes highly doubtful. 11. It is the contention of the accused that they had been shown to the witnesses, after arrest in the Police Station. The testimony of PW.1 and PW.2 indicated that the accused were shown to the accused prior to the conduct of the identification parade. Therefore, the identification of the accused in the test identification parade becomes highly doubtful. 11. That apart, though PW.1 and PW.2 are said to have identified A1 and A3 in the course of test identification parade, but, PW.1 has not specifically identified A1 and A3 in the course of trial pointing out to the person. PW.2 has not identified either A1 or A3 even in the course of trial and has stated that he does not remember the persons who attacked him. Strangely, the Prosecution has not chosen to treat him hostile and make any attempt to elicit identification of the Appellants/A1 and A3 referring to their statements made to the Inspector of Police. 12. It is trite that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of the Honourable Supreme Court. In the Mathu Vs. State of UP (AIR-1971-SC-1050), it has been held that the identification parade do not constitute substantive evidence, while the evidence given in the court is substantive testimony. The same position of law is reiterated in 2003-12-SCC-554 (Lal Singh and others Vs. State of UP). The evidence of the persons, who gathered immediately after the occurrence on hearing the cries of the injured person since it was a daylight and occurred in the busy road, would have been a valuable piece of evidence to serve as corroboration of the account given by PW.1 and PW.2. No reason was forthcoming from the Prosecution for not examining any such witness. This is another serious lapse, which casts a doubt on the Prosecution case. 13. The recoveries, at the instance of the accused persons, are not proved beyond reasonable doubt. According to the Prosecution, MO.1 Series (4 gold bangles), MO.3 series (one pair of ear stud) and MO.5 (Phillips Video CD) were recovered on the basis of confession made by A1. But, curiously confessional statement leading to the recovery has not been marked. 13. The recoveries, at the instance of the accused persons, are not proved beyond reasonable doubt. According to the Prosecution, MO.1 Series (4 gold bangles), MO.3 series (one pair of ear stud) and MO.5 (Phillips Video CD) were recovered on the basis of confession made by A1. But, curiously confessional statement leading to the recovery has not been marked. On the other hand, it is claimed by the Prosecution that the father of A1 one Venkatesan produced the aforesaid articles said to be proceeds of the crime. But, the said Venkatesan has not been examined. There is absolutely no explanation forthcoming from the Prosecution for non examination of Venkatesan who is a material witness as far as recovery of material objects are concerned. 14. On the other hand, the defence has examined DW.1, the sister of A1 and DW.2, one Dinesh owner of the jewellery shop to establish that the jewels recovered from the father of A1 belonged to the family of A1, having purchased the same from DW.2. In the criminal trial, it is not at all obligatory on the accused to produce evidence in support of his defence and for the purpose of proving his version, he can rely on the omission and admission made by the Prosecution witnesses. Nevertheless, the defence witnesses examined by the defence go to show that the recovery said to have been made at the instance of the accused cannot be true. DW.1 has stated that MO.1 and MO.3 jewels were purchased by her mother from JMK Jewellery for her marriage. She has further stated that the police came to her house and seized those jewels. DW.2 owner of the jewellery shop had deposed about the sale of jewels (MO.1 and MO.3) to the father of A1 and produced two estimates Ex.D1 dated 13.6.2002. Thus, DW.2 had deposed corroborating the evidence of DW.1 in regard to purchase of jewels and their evidence in my view remain unimpeached though they had been subjected to detailed cross examination. 15. The depositions of the witnesses whether they are examined on the Prosecution side or defence side or as court witnesses, are oral evidence in a case and hence, the scrutiny thereof shall be without any predilection or bias. 15. The depositions of the witnesses whether they are examined on the Prosecution side or defence side or as court witnesses, are oral evidence in a case and hence, the scrutiny thereof shall be without any predilection or bias. The evidence tendered by the defence witnesses cannot always be termed to be a tainted one and the defence witnesses are entitled to equal treatment and equal respect as that of the Prosecution. The issue of credibility and the trustworthiness must be attributed to the defence witnesses at par with that of the Prosecution. 16. In this regard, it is relevant to rely upon the observations made by the Honourable Supreme Court in Dudh Nath Pandey Vs. State of UP (AIR-1981-SC-911) wherein it is observed that defence witnesses are entitled to equal treatment with those of the Prosecution and courts ought to overcome this traditional instinctive disbelief in defence witnesses. In this case, the Trial Court has not considered the defence witnesses in a proper perspective manner; that too when the Prosecution failed to adduce satisfactory and reliable evidence in regard to recovery of jewels. Therefore, the evidence of DW.1 and DW.2 cannot simply be brushed aside on the ground that they might have given such a version in order to save the accused from the crime. 17. The approach of the learned Additional Sessions Judge, FTC-IV, Chennai has been one sided. Lapses, omissions and contradictions in the Prosecution case were either condoned or lightly brushed aside. There were several discrepancies and shortcoming in evidence which considerably corrode credibility of the Prosecution version. That being so, the inevitable conclusion is that the Prosecution had not established the accusations against the Appellants/A1 and A3 beyond reasonable doubt and consequently, they are entitled to be acquitted. 18. In the result, these criminal appeals are allowed. The impugned judgment of conviction and sentence is set aside. The Appellants are acquitted of the charges levelled against them. The bail bond if any executed by them shall stand cancelled and the fine amount if any paid by them shall be refunded to them. In so far as the return of the material objects MO.1 to MO.7 is concerned, a separate enquiry shall be conducted by the concerned court, in accordance with law, after giving opportunity to the parties concerned.