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2018 DIGILAW 3288 (MAD)

Kulumaiyan v. Angalan

2018-09-26

N.SATHISH KUMAR

body2018
JUDGMENT N. SATHISH KUMAR, J. 1. This criminal appeal is preferred against the conviction and sentence passed by the learned Principal Assistant Sessions Judge, Thanjavur, in S.C.No.92 of 2007, dated 21.08.2007, in and by which, the Trial Court has convicted the accused as follows: (i) under Section 457 IPC read with Section 34 IPC and sentenced them each to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1,000/-, with the default sentence of one year rigorous imprisonment; and (ii) under Section 397 IPC read with Section 34 IPC and sentenced them each to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,000/-, with the default sentence of one year rigorous imprisonment. Both the sentence of imprisonment was ordered to run concurrently. 2. The brief facts of the case, in nutshell, are as follows: 2.1. PW1, namely, Shanthi, is the sister-in-law of PW2. PW4 is the sister of PW1 and wife of PW2. PW2 and PW3 are brothers. PW1, after the demise of her husband, used to reside in the house of her sister, namely, PW4. On 13.01.2007, PW4 went to some other place. Therefore, PW1 and PW2 were residing in the house. They went to sleep, without locking the back door. At about 11.30 pm, when they are sleeping, two persons entered into their house and attacked PW1 and PW2 and removed the gold chain - MO1, from PW1 and also bangles and fled away from the place of occurrence. On information, PW3 rushed to the place of occurrence and took PW1 and PW2 to the Hospital. 2.2. PW11, Medical Officer attached to the Vinodhagan Memorial Hospital, treated both PW1 and PW2 and found the following injuries on PW2: (i) a swelling measuring 3cm over the right cheek; (ii) a lacerated wound measuring 2 X 2 X 1 cm over the right forearm; (iii) a lacerated wound measuring 2 X 2 X 2 + cm over the left hand; and (iv) a lacerated wound measuring 8 X 3 X 3 cm over the right leg. Ex.P8 is the wound certificate in respect of PW2. PW11, the Doctor, has also found swelling over the forehead; left hand shoulder; and left forehand of PW1 and issued Ex.P10 wound certificate. 2.3. Ex.P8 is the wound certificate in respect of PW2. PW11, the Doctor, has also found swelling over the forehead; left hand shoulder; and left forehand of PW1 and issued Ex.P10 wound certificate. 2.3. PW12, Sub-Inspector of Police, recording the statements of PW1 and PW2, registered a case in Crime No.6 of 2007 under Section 394 IPC. Ex.P11 is the First Information Report and PW12 has forwarded a copy of Ex.P11 to PW13, Inspector of Police. Thereafter, PW13 took up the investigation and went to the place of occurrence and prepared observation mahazar and rough sketch, in the presence of PW5 and PW6. 2.4. On 25.01.2007, when PW13 was in a vehicle check, he arrested both the accused/appellants herein on suspicion and recorded the confession of the first accused/first appellant, in the presence of PW7 and PW8 and recovered iron rod, MO2, under Ex.P3 recovery mahazar. Pursuant to the confession of the first appellant/first accused, PW13 has recovered 4+ sovereigns of gold chain, MO1, under Ex.P4 recovery mahazar, from PW10. After examination, test identification parade was conducted and finally charge sheet was laid down. On the side of the prosecution, PW1 to PW13 were examined; Exs.P1 to P12 were marked; and MO1 and MO2 were marked. Based on the evidence and materials, the trial Court found the accused guilty and has passed the conviction and sentence, as stated supra. 3. It is reported that during the pendency of the appeal, the first appellant/first accused, namely, Kulumaiyan died on 17.07.2018. A memo along with death certificate dated 30.07.2018 was filed by the prosecution. In view of the same, the charges as against the first appellant/first accused stand abated. 4. Learned Counsel appearing for the second appellant/second accused would contend that there is, absolutely, no evidence to convict the second appellant/second accused. He would further submit that identification parade was conducted only in respect of the first appellant/first accused and with regard to the second appellant/second accused, no identification parade was conducted. Moreover, no recovery was effected from the second appellant/second accused. Therefore, confession of the first appellant/first accused cannot be pressed into service to convict the second appellant/second accused. Hence, he prays for allowing the present appeal, by acquitting the second appellant/second accused. 5. Learned Additional Public Prosecutor would contend that PW1 and PW2, who are the eye witnesses, have identified both the accused in the trial. Therefore, confession of the first appellant/first accused cannot be pressed into service to convict the second appellant/second accused. Hence, he prays for allowing the present appeal, by acquitting the second appellant/second accused. 5. Learned Additional Public Prosecutor would contend that PW1 and PW2, who are the eye witnesses, have identified both the accused in the trial. Hence, he would submit that the trial Court has rightly convicted the accused persons under Sections 457 and 397 IPC read with Section 34 IPC. There is no illegality or irregularity in the same and hence, he prays for dismissing the appeal. 6. Heard the learned Counsel appearing on either side and perused the materials available on record. 7. After hearing the learned Counsel on either side, in brief, this Court is of the view that the point to be decided is as to whether the prosecution has proved the guilt of second appellant/second accused beyond reasonable doubt. 8. The main charge of the prosecution is that appellants 1 & 2/accused persons barged into the house of PW1, on 13.01.2007, at about 11.30 pm and caused injury and committed robbery and fled away from the place of occurrence. On careful perusal of the entire evidence of PW1 and PW2, it is seen that they have spoken about the two persons entered into their house on the said date, who caused injury and removed gold chain from PW1. The evidence of the investigation officer also makes it clear that on arrest of the first appellant/first accused, MO1 - gold chain, removed from PW1, was recovered from PW10, at the instance of the first appellant/first accused. However, PW10 has not supported the prosecution. 9. Be that as it may, the investigating officer's evidence clearly indicate that MO1 was recovered from the first appellant/first accused on the basis of the confession given to the police at the time of arrest. PW1 also identified the first appellant/first accused, when the test identification parade conducted by the Judicial Magistrate on 13.02.2007. This fact is not in dispute. Though both the accused were said to have been arrested on 25.01.2007, it is curious to note that second appellant/second accused was not put into identification parade by the investigation officer, for the reasons best known to him. 10. This fact is not in dispute. Though both the accused were said to have been arrested on 25.01.2007, it is curious to note that second appellant/second accused was not put into identification parade by the investigation officer, for the reasons best known to him. 10. Though PW1 and PW2, in their evidence, have stated about the other accused, ie., second appellant/second accused, who came along with the first appellant/first accused, on careful perusal of the entire evidence, identification of the second appellant/second accused has not been established from their evidence. They have not specifically identified the second appellant/second accused, instead, have given some general description about the second appellant/second accused. Though the injuries sustained by PW1 and PW2 were spoken in the evidence, it does not point out the presence/description of the second appellant/second accused specifically. 11. Moreover, there is no reason as to why the second appellant/second accused was not put into the test identification parade, despite he was arrested as early as on 25.01.2007 by the investigating officer. This fact remains unanswered by the prosecution. 12. Leaving the evidence of PW1 and PW2, which are not in specific, but in general regarding the identification of the second appellant/second accused, no other materials were produced by the prosecution to convict the second appellant/second accused. Even the material objects were seized only from the first accused. The investigation officer's evidence and the evidence of PW7 and PW8 proves the fact that the chain, belonging to PW1, was seized at the instance of the first appellant/first accused. Admittedly, there is no other material available against the second appellant/second accused. Therefore, merely on the basis of the recovery made at the instance of first appellant/first accused, the confession of the first appellant/first accused cannot be used as against the second appellant/second accused. 13. Merely on the basis of the recovery of MO1 from first accused and since, PW1 and PW2 have not specifically identified the second accused in their substantive evidence, it is unsafe to conclude the guilt of the second appellant/second accused. Hence, I am of the view that the prosecution has not established the case as against the second appellant/second accused beyond reasonable doubt. 14. Hence, I am of the view that the prosecution has not established the case as against the second appellant/second accused beyond reasonable doubt. 14. In view of the same, the conviction and sentence imposed by the learned Principal Assistant Sessions Judge, Thanjavur in S.C.No.92 of 2007, dated 21.08.2007, on the second appellant/second accused are set aside and the appeal is accordingly, allowed. Since the first appellant/first accused is reported died, all the charges as against the first appellant/first accused stand abated. The second appellant/second accused is acquitted of all charges in respect of the present case. Fine amount, if paid, shall be refunded to the second appellant/second accused. Bail bond shall stand terminated.