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2018 DIGILAW 2474 (MAD)

Sivan v. State Through Inspector of Police

2018-08-09

N.SATHISH KUMAR

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JUDGMENT : N.SATHISH KUMAR, J. 1. Aggreived over the Judgment dated 18.03.2008 passed by the learned First Additional Sessions Judge, Madurai, in S.C.No.142 of 2007, these Criminal Appeals are filed. 2. The brief facts of the prosecution case are as follows:- (i)On 10.11.2006 at about 03.00 A.M., while P.W.7, the Sub Inspector of Police, Chekkanoorani and P.W.1 to P.W.4, his men Head Constables, were on patrol duty, at K.Puliankulam near Prem Filling Station, they heard a noise under the bridge. On hearing such noise, they stopped the vehicle and found that the accused were sitting together under the bridge with Aruval, which was marked as M.O.1., and conspiring to dacoit by waylaying the vehicle and the police party arrested the accused Nos.1 to 3 and the accused Nos.4 and 5 ran away from the place of occurrence and P.W.7 also seized M.O.1, which was in the possession of the first accused and returned to the police station with M.O.1 and the arrested accused persons and registered a case in Crime No.584 of 2006 under Section 399 IPC against the accused persons. Thereafter, PW-7 went to the place of occurrence at about 06.00 A.M., on the same day and prepared an observation mahazar and rough sketch in the presence of PW-5, Ganesan and PW-6, Natarajan. Ex.P2 is the signature of P.W.5 in observation Mahazar and Ex.P.3 is the signature of P.W.6 in observation Mahazar and Ex.P.4 is the printed F.I.R. Ex.P.5 is the observation Mahazar, Ex.P.6 is the rough sketch. Thereafter, the accused were remanded to Judicial custody and P.W.8, the Inspector of Police, Chekkanoorani Police Station, had conducted further investigation and laid charge sheet as against the accused under Sections 399 and 402 IPC. 3. Before the Trial Court, P.W1 to P.W.8 were examined on the side of the respondent herein, Ex.P1 to Ex.P6 were marked and M.O.1 was marked as Material Object. None was examined on behalf of the appellants herein nor was any exhibits marked. On questioning under Section 313 Cr.P.C., the accused denied the charges. 4. Based on the evidences and the materials, the Trial Court found the accused guilty under Sections 402 and 399 IPC and sentenced the first accused to undergo rigorous imprisonment for seven years and to pay a fine of Rs. On questioning under Section 313 Cr.P.C., the accused denied the charges. 4. Based on the evidences and the materials, the Trial Court found the accused guilty under Sections 402 and 399 IPC and sentenced the first accused to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1,000/-, in default to undergo simple imprisonment for three months for the offence under Section 402 IPC and also to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1,000/- in default to undergo simple imprisonment for three months for the offence under Section 399 IPC and sentenced the accused Nos.2 to 5 to undergo rigorous imprisonment for five years each and to pay a fine of Rs. 1,000/- each in default to undergo simple imprisonment for three months each for the offence under Section 402 IPC and also to undergo rigorous imprisonment for five years each and to pay a fine of Rs. 1,000/- each in default to undergo simple imprisonment for three months each for the offence under Section 399 IPC. The sentences have been ordered to run concurrently. Aggreived over the same, these Criminal Appeals came to be filed before this Court. 5. Heard the learned counsel appearing for the appellants and the learned Additional Public Prosecutor appearing for the respondent. 6. The main contention of the learned counsel appearing for the appellants in both cases is that this case is foisted during the municipal election. These accused have been falsely implicated in this case and the case of the respondent that while the accused were conspiring together under the bridge, the police party heard such a conversation, whey they were moving in a vehicle, is unbelievable and it is not possible for them to hear the conversation. Hence, the entire prosecution is highly unbelievable and the Trial Court has not appreciated the evidence properly. Hence, the learned counsel appearing for the appellants prays for acquittal. 7. The learned Additional Public Prosecutor appearing for the respondent submitted that PW.1 to P.W.4 and P.W.7 in one voice have spoken that the accused were conspiring together under the bridge at early morning on 10.11.2006 and the first accused was carrying a knife. 8. In the light of the above submissions, now, it is to be analysed whether the prosecution proved the case beyond all reasonable doubt. 8. In the light of the above submissions, now, it is to be analysed whether the prosecution proved the case beyond all reasonable doubt. The entire facts and evidences of P.W.1 to P.W.4, Head Constables of the respondent police and P.W.7, the Sub-Inspector of Police disclosed that on 10.11.2006 at about 3.00 A.M., when the police party namely, P.W.1 to P.W.4 and P.W.7 were travelling in a vehicle, they heard such noises of the accused and heard the conversation under the bridge, where the accused were sitting together to committ robbery. Therefore, they immediately stopped the vehicle and got the accused 1 to 3 and the other accused ran away from the place of occurrence. Though P.W.1 to P.W.4 and P.W.7 in one voice spoken about the charges, their evidence is highly improbable and unbelievable for the simple reason that while travelling in a vehicle on the bridge, hearing the conversation of the accused, who were sitting under the bridge, is highly improbable. Therefore, such evidence of P.W.1 to P.W.4 and 7 is completely artificiality. Hence, I am unable to believe the evidence of P.W.1 to P.W.4 and P.W.7. 9. It is further to be noted that it is the case of P.W.7 that he stopped the vehicle and went to the place of occurrence and arrested the accused. It is the normal conduct of any accused persons that on seeing the police party stopping the vehicle over the bridge, the accused could not wait in the same place, till the police arrived to the particular place to arrest them. This fact clearly indicates that the entire prosecution case is highly unbelievable. Similarly, P.W.7 also admitted in the cross examination that on 11.11.2006, it is published in the newspaper that 20 people were arrested in order to maintain the law and order problem, which includes the accused also. This fact probabalise defence theory of false implication. Further, it is also to be noted that P.W.7 is said to have arrested the accused and registered the crime and he has proceeded the investigation and said to have prepared observation mahazar and rough sketch, showing the place of occurrence in the presence of P.W.6 and P.W.7 on the same date in the early morning. But the rough sketch, Ex.P.6 has been produced to the Court on 21.01.2007. But the rough sketch, Ex.P.6 has been produced to the Court on 21.01.2007. Besides, though the First Information Report, Ex.P.4 was also registered at about 4.00 A.M, it was sent to the Court at about 2.45 P.M on the same date. The inordinate delay in sending the rough sketch and the First Information Report has not been explained. Further, P.W.7 being the informant should not proceed with the investigation. This aspect has also been considered in the case of Megha Singh Vs. State of Haryana, (1996) 11 SCC 709 . The relevant paragraph reads as follows:- "4... We have also noted another disturbing feature in this case. PW.3 Siri Chand, Head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161 Cr.P.C. Such practice, to say the least, should not be restored to so that there may not be any occasion to suspect fair and impartial investigation." 10. Considering the above improbabilities and in view of the above Judgment referred to above, the Judgment of the Trial Court dated 18.03.2008 is to be interfered with. Accordingly, the conviction imposed by the Trial Court is liable to be set aside. 11. In the result, these Criminal Appeals are allowed; the Judgment dated 18.03.2008 made in S.C.No.142 of 2007, passed by the learned First Additional Sessions Judge, Madurai, is set aside and the appellants in both the cases are acquitted. Fine amount, if any, paid by the appellants shall be refunded to them. Bail bond executed by the appellants and the sureties shall stand terminated.