JUDGMENT (Prayer: Criminal Appeal is filed under Section 374(2) of the Code of Criminal Procedure, to set aside the Judgment of the Learned I Additional Sessions and District Judge, Thiruvallur, Thiruvallur District, made in S.C.No.161 of 2013, dated 30.09.2019 and acquit the appellants/accused from the charge.) 1. On 21.08.2010, one Sivalingam appeared before the Tiruvottiyur Town Police Station and lodged a complaint to the effect that his son Ramadoss, who was the owner-cum-driver of the Lorry, bearing Registration TN – 36 – E – 0518, went missing from 17.08.2010. 2. On such complaint, a man missing case in Crime No.562 of 2010 was registered. While so, on 24.08.2010, P.W.1/Dinesh, appeared before the same Police Station and lodged a complaint to the effect that he was a dealer of supplying Steel/Iron rods. On 17.08.2010, upon getting an order from Tirchy for 15 MT construction iron rods, after procuring the same, he booked consignment through one Moogambikai Lorry Transport, from OM Steels Company, Gummidipoondi, and the consignment was loaded in the vehicle and it left. Thereafter, the consignee informed him on the next day that the consignment did not reach and the consignment along with Lorry was missing. On the strength of the said complaint, a case in Crime No.763 of 2010 was registered for the offence under Section 379 of IPC. When P.W.17 took up the case for investigation, upon being doubt with one Senthil @ Senthil Kumar, who is the third accused in this case, was picked up by him and thereafter he is said to have made an extra judicial confession, confessing that he himself and the other accused were demanding money from the said Ramadoss, for the purchase of tyres, for which, the said Ramadoss, was asked by them to come near the place called as Rettai Eri, where the three accused and the deceased were sitting together and talking in the cabin of the said Lorry, when all the three accused killed the said Ramadoss by strangulating him by using a nylon rope. Thereafter, the iron rods were stolen and sold by them. Pursuant to the confession statements of the accused, the body of the said Ramadoss was recovered and the other accused were arrested by P.W.17. Thereafter, the iron rods were stolen and sold by them. Pursuant to the confession statements of the accused, the body of the said Ramadoss was recovered and the other accused were arrested by P.W.17. Thereafter, the case was altered into one under Sections 302, 201, and 379 of IPC, and in view of the unearthing of the new offences, the matter was transferred to the jurisdictional police viz., Puzhal Police Station, where the case was reregistered as Crime No.763 of 2010. Thereafter, the case was taken up for further investigation by P.W.18. Finally, P.W.19 completed the investigation and laid a charge sheet, proposing all the three accused guilty for the offences under Sections 302, 201 and 379 of IPC. The case was taken on file by the Judicial Magistrate, Thiruvottiyur, in PRC.No.31 of 2012 and thereafter, upon the appearance of the accused and furnishing of the copies, the case was committed to the Principal District Sessions Judge, Thiruvallur. The case was taken on file as S.C.No.161 of 2013 and was made over to the I-Additional Sessions and District Judge, Thiruvallur. 3. The Trial Court, after considering materials on record, framed three charges under Section 302 read with 34 IPC and under Section 201 of IPC., and under Section 379 of IPC. The accused denied the charges and stood trial. Thereafter, to bring home the charges on behalf of the prosecution, P.W.1 to P.W.19 were examined and Exs.P-1 to P-20 were marked and M.Os.1 to 4 were produced, on behalf of the prosecution. Upon being questioned about the material evidence and incriminating circumstances on record, the accused denied the same as false. Thereafter, no evidence was let in on behalf of the defense. 4. The Trial Court thereafter proceeded to hear the arguments advanced by the learned Additional Public Prosecutor, for the State and the learned Counsel for the accused and by Judgment dated 13.09.2019, acquitted the accused for the offense under Section 302 r/w Section 34 of IPC, and Section 201 of IPC. However, the accused/appellant herein were convicted for the offense under Section 379 of IPC, and imposed Rigorous Imprisonment of three years and to pay fine of Rs 2,000/-, in default to undergo Simple imprisonment of three months. Aggrieved by the said conviction and sentence, the present appeal is filed before this Court. 5. However, the accused/appellant herein were convicted for the offense under Section 379 of IPC, and imposed Rigorous Imprisonment of three years and to pay fine of Rs 2,000/-, in default to undergo Simple imprisonment of three months. Aggrieved by the said conviction and sentence, the present appeal is filed before this Court. 5. No appeal is filed by the State, as against the acquittal of the accused, in respect of the other charges framed on them. 6. Heard Mr.T.R.Ravi, learned Counsel for the appellant and Mr.S.Vinoth Kumar, learned Government Advocate (Criminal side) appearing for the respondent. 7. Mr.T.R.Ravi, learned Counsel for the appellant taking this Court through the evidence on record, would submit that, in this case, there is material contradictions in the evidence of prosecution witnesses as to where the lorry was seized and from where the materials viz., the iron rods were recovered. In this case, not the entire 15 Metric Ton of iron rods were recovered, therefore, the investigation is incomplete. He would submit that the Trial Court did not accept the case of the prosecution, in respect of the offences under Sections 302 and 201 of IPC, the accused are entitled to the very same benefit of the doubt in respect of the offence under Section 379 of IPC, also. When the prosecution case that the accused killed the said Ramadoss, and decamped with the lorry and the iron rods, is not believed by the Trial Court, as a natural consequence, the Trial Court ought not to have convicted the appellant/accused for the offence under Section 379 of IPC, also. 8. Per contra, Mr.S.Vinoth Kumar, learned Government Advocate (Criminal side) would submit that in this case, there is overwhelming evidence on record to prove the guilt of the accused. He would submit that P.W.1 has spoken about the fact that the consignment was booked. P.W.2 has spoken about the fact that the consignment was loaded in the lorry. P.W.5 to whom the accused have sold a part of the iron rods for a sum of Rs.3,60,000/- (Rupees Three Lakhs Sixty thousand only), has deposed to that effect and the goods were also seized from the scrap shop of P.W.5. 9. P.W.2 has spoken about the fact that the consignment was loaded in the lorry. P.W.5 to whom the accused have sold a part of the iron rods for a sum of Rs.3,60,000/- (Rupees Three Lakhs Sixty thousand only), has deposed to that effect and the goods were also seized from the scrap shop of P.W.5. 9. This apart, P.W.9, the brother of the deceased has also spoken about the fact that on the day of occurrence, the deceased called him over the phone and told him that the first accused, in this case, viz., Murugan, was coming to meet him regarding the transactions of supply of tyres. Therefore, he would submit that the prosecution has proved the guilt of the accused beyond doubt. Therefore, he would pray for the appeal would be dismissed without any merits. 10. I have considered the rival submissions made on either side and perused the material records of this case. 11. In this case, it is the case of the prosecution, pursuant to the confession statement of the third accused, even the body of the deceased was recovered and was identified by superimposition technique. Further, arrest of the first and second accused was also made, thereafter, the stolen iron rods were also recovered in the teeth of these materials, only because of the witness to the confession statement did not support the case of the prosecution and the time of the death, etc., were not clearly borne out by evidence, considering the shortcomings as a serious lacuna, the Trial Court did not convict the accused/appellant for the offense under Section 302, and 201 of IPC. The prosecution has also not filed any appeal against the acquittal. 12. As far as the offence under Section 379 is concerned, P.W.1, who booked the consignment, had spoken to the said fact of the entrustment of 15 tonnes of iron rods with the deceased Ramadoss in his Lorry, on 07.08.2010, and on the very next day, the consignee had informed that the consignment did not arrive. P.W.2, Nagaraj, has spoken about the fact, as a matter of fact, the goods were loaded in the lorry bearing Registration No.TN 36 E 0518. He also categorically stated that the deceased Ramadoss was driving the lorry. P.W.5 had deposed that on 17.08.2010, the accused had contacted him and offered 15 Metric Tonnes of iron rods for sale. P.W.2, Nagaraj, has spoken about the fact, as a matter of fact, the goods were loaded in the lorry bearing Registration No.TN 36 E 0518. He also categorically stated that the deceased Ramadoss was driving the lorry. P.W.5 had deposed that on 17.08.2010, the accused had contacted him and offered 15 Metric Tonnes of iron rods for sale. He has given them a sum of Rs.1 Lakh and promised to pay the balance sum of Rs.2.6 Lakhs, in a while and he handed over the sum of Rs.1 Lakh to the second accused. After a week, he handed over the balance sum of Rs.2.6 Lakhs to the first accused. P.W.9/ the brother of the deceased, has spoken about the fact that he received a phone call from the deceased Ramadoss around 9:00 PM at night and the deceased Ramadoss had spoken to him that the first accused had promised to supply tyres for a sum of Rs.17,000/- and he is going to pay a sum of Rs.10,000/- initially, and the balance amount of Rs.7,000/- can be paid in later. The pictures of the seized iron rods, were also marked as Exs.P-2 and P-3. In that view of the matter, the prosecution has established the offence under Section 379 of IPC, beyond any doubt whatsoever. 13. The learned Counsel for the appellant/accused would submit that there is a contradiction between the witnesses, which is factually incorrect and upon cumulative reading of the entire evidence of the prosecution witnesses, there are no discrepancies or contradictions whatsoever between the witnesses. The learned Counsel would submit that the case of the prosecution is that the recovery is based on joint confession, which is not acceptable in law. But, however, it could be seen that the third accused, who made the confession statement initially, upon which the arrest of the other accused and therefore, the said contention is is also incorrect. 14. The learned Counsel further contended that P.W.5, mentioned only speaking about the first and second accused and not whispering about the third accused. The said contention is also factually incorrect as P.W.3 has deposed that all the three accused had contacted him, for the sale of iron rods. The learned Counsel would further contend that the iron rods which were handed over by way of interim custody were sold by P.W.3, the recovery should be held has not proved. The said contention is also factually incorrect as P.W.3 has deposed that all the three accused had contacted him, for the sale of iron rods. The learned Counsel would further contend that the iron rods which were handed over by way of interim custody were sold by P.W.3, the recovery should be held has not proved. In this regard, the Trial Court itself marked the pictures of the recovered iron rods taken as Exs.P-2 and P-3. Even though the goods viz., iron rods were not produced during the trial, the same would itself, will not affect, in any manner the case of the prosecution, as the photographs which were duly taken were marked and the factum of recovery has been spoken to by P.W.5 as well as the witness of the Mahazar. Therefore, none of the contentions of the appellant/accused are meritorious and the appeal is without any merits. 15. Coming to the question of the sentence, the learned Counsel pleaded that this Court should consider the question of sentence with leniency as the maximum period of three years imprisonment has been imposed by the Trial Court. But, however, considering the facts and circumstances of the instant case, I am of the view that the imposition of three years of Rigorous imprisonment on all the three accused/appellants, is appropriate and it does not call for any interference, and I find no merits in this appeal and the appeal is dismissed.