Research › Search › Judgment

Madras High Court · body

2015 DIGILAW 2576 (MAD)

Mookandi @ Esakkipandi v. State

2015-07-22

P.R.SHIVAKUMAR

body2015
JUDGMENT Mookandi @ Esakkapandi, who figured as the first accused in S.C.No.125 of 2008 on the file of the Assistant Sessions Judge, Valliyoor is the Petitioner herein. He was prosecuted and convicted by the learned Assistant Sessions Judge, Valliyoor in the said case for the offence under Sections 341 and 397 r/w 34 IPC and sentenced to undergo one month simple imprisonment for the offence under Section 341 IPC and seven years rigorous imprisonment and to pay a fine of Rs.2000/- with a default sentence of six months rigorous imprisonment for the offence under Section 397 IPC. Both the sentences were directed to run concurrently. 2. As against the said judgement of conviction and sentence dated 05.12.2008 he preferred an appeal in Cr.A.No.16 of 2009 on the file of the Additional Sessions Judge(FTC.NO.II), Tirunelveli. The learned Additional Sessions Judge(FTCNO.II) Tirunelveli by a judgement dated 05.05.2010 confirmed the conviction as well as the sentence and dismissed the said appeal. It is as against the said judgement of the appellate Court, the present revision has been filed. 3. The revision Petitioner Mookandi @ Esakkapandi and another person by name Essakki @ Ooty were arrigned as accused No.1 and 2 in S.C.No.125 of 2008, and they were prosecuted for the offences as indicated above. The prosecution in order to prove its case examined P.W.1 to P.W.10 and marked Ex.P1 to Ex.P11 and produced M.Os.1 and 2. 4. The case of the prosecution as can be culled out from the oral and documentary evidence adduced on the prosecution can be briefly stated thus: 5. P.W.1 Muthulakshmi is a resident of Chinthamani village. On 14.11.2007, she along with her husband Sudalaiyandi Asari(PW2) had gone to Moolakaraipatti to meet the Astrologer and thereafter they went to V.M.Chathiram to meet their relatives. After paying a visit to their relatives at V.M.Chathiram, while they were on their way back to their village, P.W.2 entered the bus stand at Moolakaraipatti to take his TVS 50 Vehcile which had been parked therein. When P.W.1 and P.W.2 were proceeding in the said vehicle, the revision Petitioner and Esakki @ Ooti (A2) who were standing on the road were watching their movements. After filling petrol for the two wheeler, P.W.1 and P.W.2 were proceeding towards their village Chinthamani via Chinnamoolakarai. When P.W.1 and P.W.2 were proceeding in the said vehicle, the revision Petitioner and Esakki @ Ooti (A2) who were standing on the road were watching their movements. After filling petrol for the two wheeler, P.W.1 and P.W.2 were proceeding towards their village Chinthamani via Chinnamoolakarai. Near Esakki Amman Koil which situates at a distance of one Kilometre from Chinthamani, the Petitioner herein and the second accused stopped the vehicle, threatened P.W.s1 and 2 with billhook and demanded P.W.1 to handover her jewels causing threat P.W.1, on the advise of P.W.2, took out her Thali Chain and handed over the same to the accused persons. Similarly, P.W.2 removed his ring and handed over the same to the accused persons. The accused left the place after robbing them of the above said jewels. Thereafter P.W.2 lodged a complaint on the file of Moolakaraipatti Police Station under Ex.P2. P.W.6-Maria Jesu Anthony, the then Sub-Inspector of Police, received the complaint at 9.00 p.m, prepared Ex.P6-First Information Report and registered a case in Cr.No.153 of 2007 for an offence under Section 397 IPC. P.W.9-Palanisamy, the then Inspector of Police at Kalakkadu Police Station, who was holding the additional charge of the Inspector of Police, Nanguneri Circle, took up the investigation of the case visited the place of occurrence and prepared Ex.P9-Observation Mahazar and Ex.P10-rough sketch in the presence of P.W.3-Chellapandi and P.W.5-Palpandi. He also examined P.W.1 to P.W.5 and recorded their statements. Thereafter investigation of the case was handed over to the regular Inspector of Police, Nanguneri Circle. Meanwhile P.W.8-Srinivasan, the then Inspector of Police, Valliyoor, who was in the course of checking vehicles to trace the accused persons in Crime No.249 of 2007, on the file of the Valliyoor Police Station, arrested the revision Petitioner and the second accused Esakki @ Ooti whereupon they gave a confession statement from which it was revealed that the Petitioner and the second accused were involved in the incident concerned in Crime No.153 of 2007 on the file of Moolakaraipatti Police Station. He recorded their confession statement and recovered MO1-golden chain weighing 10 sovereigns and MO2-golden ring, which had been burried on the backside of Karaiadisamy Temple between Moolakaraipatti and Perumal Nagar, under Ex.P11-Mahazar and based on the information furnished by the revision Petitioner and second accused. He recorded their confession statement and recovered MO1-golden chain weighing 10 sovereigns and MO2-golden ring, which had been burried on the backside of Karaiadisamy Temple between Moolakaraipatti and Perumal Nagar, under Ex.P11-Mahazar and based on the information furnished by the revision Petitioner and second accused. Then P.W.8-Srinivasan forwarded the recovered articles along with the Mahazar and the accused persons to the jurisdictional Inspector of Police, P.w.10-Marimuthu, Inspector of Police arranged for Test Identification Parade by submitting a request to the Court under Ex.P7, pursuant to which a Test Identification Parade was conducted at Central prison, Palayamkottai on 3.1.2008. The Test Identification Report is Ex.P8. After completion of investigation, P.w.10 submitted a final report accusing the revision Petitioner and the second accused of committing offences punishable under Sections 341, 392 and 397 IPC r/w 34 IPC. 6. The case was taken on file as P.R.C.No.10 of 2008 on the file of the Committal Magistrate/Judicial Magistrate, Nanguneri and the case was committed for trial to the Sessions Court. The same was taken on file as S.C.No.125 of 2008 and made over to the Assistant Sessions Judge, Valliyoor, following the procedure, for trial. Charges under Sections 341 and 397 IPC r/w 34 IPC were framed and a trial was conducted since the accused persons pleaded not guilty. After the completion of the recording of evidence adduced on the side of prosecution, the incriminating materials found in the evidence of prosecution were culled out and the accused persons were questioned under Section 313(1)(b) regarding the incriminating materials. The accused persons denied the evidence and reitereated their stand that they were innocent. No defence witness was examined and no document was produced on their side. 7. The trial Court, after considering the evidence, held that the charges against the second accused Esakki @ Ooty were not proved and acquitted him. However, the learned trial Judge convicted the revision Petitioner herein, who was the first accused, holding him guilty of the offences punishable under Sections 341 and 397 r/w 34 IPC, convicted him and sentenced him as indicated above. On appeal, the learned Additional Sessions Judge, (FTC NO.II), Tirunelveli confirmed the conviction as well as the sentence. It is as against the same, the present revision has been filed. 8. For the sake of convenience, the parties are referred to in accordance with their ranks in the trial Court. On appeal, the learned Additional Sessions Judge, (FTC NO.II), Tirunelveli confirmed the conviction as well as the sentence. It is as against the same, the present revision has been filed. 8. For the sake of convenience, the parties are referred to in accordance with their ranks in the trial Court. Accordingly, the revision Petitioner is referred as ''first accused and the respondent is referred as ''prosecution'', at appropriate places, their ranks in the revision is also furnished. 9. The arguments advanced by Mr. V.Kathirvelu, learned Senior counsel representing the learned counsel on record for the revision Petitioner Mr. K.prabhu and Mrs. S.Prabha, learned Government Advocate(Crl.side) were heard. The materials available on record were also perused. 10. It is the contention of the learned Senior Counsel for the revision Petitioner that the Courts below committed a grave error in holding that the charges against the first accused were proved, while holding the second accused not guilty of the offences for which he was prosecuted. The learned Senior Counsel for the revision Petitioner submitted that many vital contradictions present in the evidence adduced on the side of the prosecution were simply brushed aside by the trial Court as well as the appellate Court and that if a proper appreciation of evidence had been made, the revision Petitioner(A1) would have been acquitted holding that the prosecution case as against him had not been proved beyond reasonable doubt. It is also the contention raised by the learned Senior Counsel for the revision Petitioner that the alleged confession and recovery of MO1and MO2 jewels was only a stage managed show which will be revealed by the fact that the P.W.8-Inspector of Police did not identify the first and second accused separately. The learned Senior Counsel for the revision Petitioner also pointed out the fact that the alleged weapon, namely billhook, was not recovered by the Police and produced as a material object in the case. The learned Senior Counsel also pointed out the fact that neither P.W.1 nor P.W.2 was in a position to state the registration number of the vehicle in which they were proceeding at the time of occurrence. The learned Senior Counsel also pointed out the fact that neither P.W.1 nor P.W.2 was in a position to state the registration number of the vehicle in which they were proceeding at the time of occurrence. It was also pointed out by the learned Senior Counsel that the Test Identification Parade could not be relied on since P.W.2 himself had clearly admitted that before identifying the accused in the Test Identification Parade, he was taken to the Police Station and he identified the accused in the Police station and that prior to the identification of the accused in the Test Identification Parade, he also got familiarised with the accused with their photographs. 11. On the other hand, the learned Government Advocate(Crl.side) would submit that the accused persons were clearly identified by the prosecution witnesses in the Court; that the occurrence was spoken to by P.Ws.1 and 2 without any contradiction; that the arrest, confession and recovery of MO1 and MO2-jewels were proved by the evidence of P.W.8 and that the same was rightly held to be enough to prove the case against the revision Petitioner/first accused beyond reasonable doubt. It is the further contention of the learned Government Advocate(Crl.Side) that, the revision Petitioner/first accused is trying to escape the penal consequences of his act by pointing out minor and trivial contradictions blowing them out of proportion. 12. This Court paid its anxious consideration to the above said submissions made on both sides. 13. The evidence can be divided into three parts: (1) relating to the occurrence, (2) arrest and recovery and (3) identification of the accused. So far as the arrest and recovery is concerned P.W.4 Muthiah (Village Assistant) and P.W.8-Srinivasan(Inspector of Police) were examined. The alleged information furnished in the confession statement has not been marked. The recovery mahazar alone has been marked as Ex.P4 Regarding the identification of the accused in the Test Identification parade, P.W.1, P.W.2 and P.W.7, the Judicial Magistrate who conducted the identification parade in the Central Prison were examined. 14. The alleged information furnished in the confession statement has not been marked. The recovery mahazar alone has been marked as Ex.P4 Regarding the identification of the accused in the Test Identification parade, P.W.1, P.W.2 and P.W.7, the Judicial Magistrate who conducted the identification parade in the Central Prison were examined. 14. The case of the prosecution is that the first accused(revision Petitioner) and A2 Esakki @ Ooti waylaid P.Ws.1 and 2 at about 10.30 a.m on 14.11.2007 near Esakki Amman Koil in between Chinthamani and Chinna Moolakarai at a distance of one Kilometre from Chinthamani and robbed them of their jewels, namely MO1 10 sovereigns of golden chain and MO2-gold ring, after causing threat by showing a billhook. P.Ws 1 and 2 alone are the witnesses who spoke about the occurrence as eyewitnesses. Though both of them have stated that they had gone to Moolakaraipatti and while they were returning, they were waylaid by the accused and robbed of their jewels, there is a contradiction between their testimonies as to the purpose for which they had gone to Moolakaraipatti. According to P.W.1, they went there to meet an Astrologer. She did not make any reference to the reading of horoscope. On the other hand, P.W.2 did not make any reference to the Astrologer or horoscope reader. On the other hand he simply stated that they had gone to Moolakaraipatti to seek a suitable alliance for their daughter. According to P.W. 1's evidence, the two wheeler, namely TVS 50 vehicle of P.W.2 had been parked at a place in the bus stand of Moolaikaraipatti, whereas the evidence of P.W.2 is to the effect that he had left his vehicle at a workshop in Moolakaraipatti and on their wayback, he made his wife to stand at the bus stand and he alone went to take the vehicle from the workshop. Eventhough registration number of the TVS 50 vehicle has been furnished as TN 69 A 6567 in Ex.P2-complaint and also in Ex.P6-First Information Report, neither P.W.1 nor P.W.2 did refer to the registration number of the vehicle in their evidence. The said vehicle is said to be owned by P.W.2. The documents relating to the vehicle to show whether P.W.2 was having such a vehicle have not been produced by prosecution. 15. The said vehicle is said to be owned by P.W.2. The documents relating to the vehicle to show whether P.W.2 was having such a vehicle have not been produced by prosecution. 15. According to the prosecution case, P.W.1 and P.W.2 were intercepted by the accused persons, who followed them in a motor cycle. The registration number, make and other identifying marks of the motor cycle allegedly used by the accused persons have not been furnished in the complaint by P.W.2. The complaint also does not contain the salient features of the accused persons like height, weight, age, complexion or the colour of the wearing apparels with which they were found. According to the contents of the complaint, out of two persons who came there in the motor cycle and intercepted P.Ws 1 and 2, one was holding a billhook. In this regard, P.w.2 stated that both accused were having billhooks in their hands. It is quite contrary to what has been stated in the complaint marked as Ex.P4. It is the evidence of P.W.1 that the accused persons, who overtook the vehicle in which she and her husband were proceeding, asked them to stop the vehicle and accordingly P.W.2 stopped his vehicle and from the stationed vehicle alone, they handed over the chain and the ring to the accused. .On the other hand, It is the evidence of P.W.2 that when they were intercepted by the accused, he did not stop the vehicle and he along with his wife was continuing his journey in the two wheeler; that at that point of time, one of the accused threatened him with the billhook and made P.W.1 to remove the Thali Chain and hand it over to them and that thereafter only on their demand, he removed his ring and handed over the same to the accused. 16. Though both P.W.1 and P.W.2 stated that they handed over the chain and the ring to the accused persons, who came to the spot in the motor cycle, none of them was specifically identified as the person to whom the jewels were handed over by them. Contrary to the above evidence of P.W.2, P.W.1 stated that when they were demanded by the accused to stop their vehicle, they stopped their vehicle. She also stated that at the time of occurrence, vehicle had been stopped and the engine had been switched off. Contrary to the above evidence of P.W.2, P.W.1 stated that when they were demanded by the accused to stop their vehicle, they stopped their vehicle. She also stated that at the time of occurrence, vehicle had been stopped and the engine had been switched off. When a suggestion was put that it was dark at that place, she changed her version and stated that the engine of their vehicle had been running. From the same, it will be quite obvious that P.W.1 was capable of changing her version intelligently even though she happended to be a woman hailing from the rural area. 17. Furthermore, in the chief examination, P.W.1 had stated that the photographs of the accused were not shown to her. However, she did admit that there was a possibility of the photographs having been shown to her husband. During cross examination, she made a categorical admission that they were invited to the Police Station after the occurrence and the persons who were kept there were shown to them and they were asked to identify them as to whether they were the persons who committed the offence., During cross examination, she stated that when they went to the Police Station they did not see the accused in the Police station. However, it is the admission made by P.W.2that 20 days subsequent to the date of occurrence, a news item appeared in the newspaper along with photographs of the accused persons. P.W.2 in his evidence made a clear admission that he was asked by the Police to identify the accused persons in the Police Station. It is also his evidence that he and his wife identified the chain in the Police Station. Of course P.W.2 stated that though they were invited to the Police Station to identify the accused, they did not see the accused persons in the Police station. However a vital admission was made by him to the effect that the photographs of the accused persons had been published in the newspaper and because he had seen their photographs in the newspaper, he was able to identify them before the Judicial Magistrate in the Test Identification Parade conducted in the Jail. However a vital admission was made by him to the effect that the photographs of the accused persons had been published in the newspaper and because he had seen their photographs in the newspaper, he was able to identify them before the Judicial Magistrate in the Test Identification Parade conducted in the Jail. The relevant portion in vernacular is extracted hereunder: It is also his evidence that he was asked to go to Muneerpallam Police station prior to the identification parade and at that point of time, the accused were kept there in the lock-up. There is also a clear admission made by him that before going to the jail to identify the accused in the Test Identification Parade, they were furnished with photographs of the accused in the Police Station. A vital admission made by him is to the effect that he could identify the accused in the Test Identification Parade not with certainity and that the same was done approximately only because he had already seen their photographs. The relevant portion of his evidence in vernacular reads as follows: 18. P.W.4 has been examined to prove the arrest of the accused, confession and recovery. The admissible portion of the confession statement has been not marked. The seizure mahazar showing the recovery of MO1 chain and MO2 ring alone has been marked as Ex.A4. P.W.4 was examined as an attestor of the confession statement and the Mahazar. He is a Village Assistant and he has deposed in many cases. It is his evidence in cross examination that it was the practice of the Police to recover the articles and then to record the confession statement and that in this case also, the confession statement was recorded only after the recovery of the material objects. Therefore the alleged information in the confession statement leading to detection of new fact or recovery of material objects does not stand substantiated. He was also not able to identify Mos 1 and 2. 19. P.W.7-Judicial Magistrate, who conducted the Test Identification Parade says that P.W.1 was not able to identify the accused; that P.W.2, who was able to identify the revision Petitioner/first accused, was not able to identify the second accused at the first instance and that only when he was asked to identify the suspected accused for the second time after changing the row, P.W. 2 was able to identify both the accused. When the accused persons were asked to make their remarks regarding the Identification Parade, they gave a statement to the Judicial Magistrate that they had been kept in Muneerpallam Police Station for seven days and that the witnesses were brough there and they were identified to the witnesses as the accused persons. The same stands supported by the admission made by P.W.2. Hence the identification of the accused by P.W.2 in the Test Identification Parade do not render any help to the prosecution to prove their case. On the other hand, the very fact that P.W.2 was not able to identify the second accused at the first instance and was able to identify both the accused when he was asked to identify the suspected accused for the second time, coupled with the fact that P.W.1 was not able to identify any of the accused even though they had seen the accused at Muneerpallam Police Station before the Test Identification Parade was conducted, will cause serious suspicion regarding the prosecution case as to the involvement of the accused in the Commission of the alleged offences. 20. It is also pertinent to note that P.W.8, who is said to be the person who arrested the accused, recorded their confession statement and recovered MO1 and 2 admitted that separate confession statements were not obtained from the accused and on the other hand, a joint confession statement of both the accused was recorded. The same will show that P.W.8 has not adopted proper procedure in recording the confession statement. Further, the admission made by P.W.4 that the confession statement came to be recorded only after the recovery of the material objects will nullify the evidenciary value of the alleged confession leading to recovery. Though the accused were said to have been arrested when they were proceeding in a motor cycle, particulars of the motor cycle have not been furnished. It is not known whether the motor cycle was seized. The same has not been produced as a material object in this case and no Mahazar relating to the motor cycle had been produced. 21. It is not known whether the motor cycle was seized. The same has not been produced as a material object in this case and no Mahazar relating to the motor cycle had been produced. 21. The cumulative effect of all the above said aspects will make it clear that even though the prosecution case regarding the occurrence, namely that a robbery was committed on P.W.1 and P.W.2 cannot be doubted, the prosecution miserably failed in its attempt to prove that the accused were the persons, who were involved in the commission of offence alleged in this case. The learned trial Judge, while arriving at a correct conclusion that the charges against the second accused were not proved beyond reasonable doubt, committed an error in holding that the charges framed against the revision Petitioner herein/first accused for the offences under Sections 341 and 397 r/w 34 IPC were proved beyond reasonable doubt. In fact, even on preponderance of possibilities, the charges against the first accused (revision Petitioner) cannot be held to have been proved. In criminal jurisprudence, the prosecution is bound to prove the charges against the accused beyond reasonable doubt. 22. In this case, proper appreciation of evidence will lead to the only conclusion that the prosecution failed to prove that it was the revision Petitioner/first accused who committed the offences under Section 341 and 397 IPC along with another person. The judgement of the trial Court convicting the revision Petitioner for the offences under Sections 341 and 397 IPC can be said to be based on suspicions and surmises, rather than proof beyond reasonable doubt. The learned lower appellate Judge also committed the very same mistake in rendering a judgement closing his eyes to the vital contradictions and the improbabilities found in the prosecution cases. Hence this Court comes to the conclusion that the conviction of the revision Petitioner for offences under Sections 341 and 397 IPC by the trial Court and the judgement of the lower appellate Court confirming the same are discrepant and they are liable to be interfered with. The judgements of the Courts below cannot stand the scrutiny of this Court regarding the conviction as well as sentence. The conviction is liable to be set aside and the revision Petitioner is entitled to be acquitted in respect of all the offences for which he was prosecuted. 23. The judgements of the Courts below cannot stand the scrutiny of this Court regarding the conviction as well as sentence. The conviction is liable to be set aside and the revision Petitioner is entitled to be acquitted in respect of all the offences for which he was prosecuted. 23. In the result, the Criminal Revision Case is allowed and the judgment of conviction and sentence made in S.C.No.125 of 2008 dated 05.12.2008 on the file of the Assistant Sessions Judge, Valliyoor, Tirunelveli, Tirunelveli District, which was confirmed by the Additional Sessions Judge, Fast Track Court No.II, Tirunelveli in C.A.No.16 of 2009 is set aside and the revision Petitioner/accused No.1 is acquitted in respect of all the offences for which he was prosecuted. The fine amount, if any paid by him shall be refunded. As it is reported that the revision Petitioner/first accused is in jail, he is directed to be released forthwith unless his presence is required in connection with any other case. Consequently connected Miscellaneous Petition is closed.