Leva Anthony vs The State

M. Chockalingam, J.—Challenge is made to a judgment of the Additional Sessions Division, Fast Track Court No. II, Tirunelveli, dated 29.07.2009, made in S.C. No. 462 of 2008, whereby the appellant/accused No. 3, along with three other persons ranked as accused Nos. 1, 2 and 4, stood charged u/s 411 IPC and on trial, he was found guilty, convicted thereunder and sentenced to undergo three years rigorous imprisonment and to pay a fine of Rs. 1000/-, in default to undergo rigorous imprisonment for three months.

Short facts necessary for the disposal of these appeals can be stated as follows:

(a) P.W.1 Venkatasubramanian is the husband of one Vijayalakshmi, the deceased in this case. He was a resident of Safire Apartments in Joseph Street, Perumalpuram, within the jurisdiction of the respondent Police Station. P.W.1 was working as Manager in Arasan Tractor Company at Thachanallur. He was also running a plastic shop at Anbu Nagar, Perumalpuram, in the name of ''Abinaya Plastics'' and the said shop was being looked after by his wife Vijayalakshmi.

(b) On 08.01.2007, as usual, P.W.1 went for his work in the morning hours leaving his wife Vijayalakshmi in the house. At noon hours i.e. at about 02.45 p.m., P.W.1 came back to his house, along with his driver Isakki Ganesh (P.W.2) in Car and found the house locked. Since there was no response inspite of his knocking the door, he enquired one Periyanayaki Ammal (P.W.18), a neighbour, who in turn informed that she noticed water flowing outside from the house of P.W.1 since morning hours and she heard noise about and hence she was of the impression that Vijayalakshmi was taking bath during the time. As his attempt to take the key which was hanging near the window had failed, P.W.1, entertaining a suspicion proceeded to his plastic shop at Anbu Nagar and enquired as to whether Vijayalakshmi came to shop but, he got only negative answer. Thereafter, he brought with him one Singa Raja (P.W.3), a boy employed in his shop, took the key which was hanging near the window and opened the doors and when he went inside, along with P.Ws.2 and 3, he found Vijayalakshmi''s dead body in a pool of blood and also found missing the gold jewels worn by her, namely thalichain with two thalis, one small chain, four bangles, one bracelet and one ear stud. Immediately, P.W.1 rushed to the respondent police station and gave Ex.P-1, the complaint, to P.W.17, the Sub-Inspector of Police, who was on duty. P.W.17, based on Ex.P-1 complaint, registered a case in Crime No. 7/2007 under Sections 302 and 380 IPC and prepared Ex.P-21, Printed FIR and despatched the same to the court and forwarded copies to the higher officials.

(c) On receipt of copy of Ex.P-21 FIR at 6.00 p.m. on 08.01.2007, P.W.20, the Inspector of Police, took up the investigation, rushed to the scene of occurrence at 6.30 p.m., made an observation and prepared Ex.P-2, the observation mahazar and also drew Ex.P-22, the rough sketch, in the presence of P.W.6 and P.W.13. In the meantime, P.W.20 also gave intimation for bringing Sniffer Dog and Forensic Expert to the scene. He conducted inquest on the body of Vijayalakshmi, in the presence of panchayatdars and witnesses, between 7.30 p.m. and 9.30 p.m. and prepared Ex.P-23, the inquest report. Thereafter he sent the dead body for postmortem with Ex.P-14, the requisition, through P.W.16 Head Constable. Thereafter, from the place of occurrence, P.W.20 recovered M.O.14 - a long hair, M.O.15 - a bunch of 30 cm. long hairs, M.O.20 - bloodstained sample wooden cupboard door, M.O.16 - pillow cover, M.O.11 - Churidar top, M.O.21 - bloodstained Window Screen, M.O.17 -bloodstained Marble Stone, M.O.18 - sample marble stone, M.O.24 (series) -Bloodstained glass pieces, M.O.1 - Gold Dollar, M.O.2 - gold hook, M.O.4 - ear stud, M.O.6 - nose stud, M.O.5 - gold ring and M.O.3 (series) - silver anklets under Ex.P-16 mahazar, attested by the same P.Ws.6 and 13. P.W.20 enquired P.Ws.1 to 3, P.W.18 and some other witnesses and recorded their statements.

(d) P.W.12, the Doctor, conducted autopsy on the dead body of Vijayalakshmi at about 10.40 a.m. on 09.01.2007. On completion of postmortem, P.W.12 issued Ex.P-15, the postmortem certificate, wherein he opined that the deceased would have died of complications of multiple injuries. M.O.13 - bloodstained brazier, M.O.12 - bloodstained Chudidar Pant and M.O.22 - black colour jatti, the bloodstained clothes, recovered from the body of the deceased and three finger nails handed over by the postmortem doctor, were recovered by P.W.20 under Ex.P-20 - Form 95.

(e) Thereafter, on 18.01.2007, P.W.20 gave Ex.P-24, the requisition, to the Court for sending the material objects for chemical analysis, which resulted in two reports, namely Ex.P-25, the Chemical Analysis Report and Ex.P-26, the Serologist''s Report. Thereafter, since P.W.20 got transferred, P.W.21 took up the further investigation on 08.07.2007.

(f) Pending investigation, P.W.21, the Inspector of Police, arrested accused No. 2 on 09.07.2007 in the presence of P.W.7, Julius and P.W.8 Mohan and recorded the voluntary confessional statement given by him and pursuant to the admissible portion of his confessional statement, marked as Ex.P-27, accused No. 2 took the police party to Meenakshi Pawn Broker Shop, where P.W.9 was the Manager, and took and produced M.O.8 series four gold bangles pledged by him through P.W.10 and the same were recovered by P.W.21 under Ex.P-10 mahazar attested by P.Ws.7 and 8. P.W.21 enquired P.Ws.7 to 10 and recorded their statements.

(g) On 10.07.2007, based on the confessional statement given by Accused No. 2, P.W.21 arrested accused No. 1 in the presence of P.W.11 and one Murugan and recorded his voluntary confessional Statement and pursuant to the admissible portion of the confessional statement, which is marked as Ex.P-11, accused No. 1 took the police party to his house at Shanthi Nagar from where he took and produced one bracelet and two gold thalis and the same were recovered under Ex.P-12 mahazar and he also produced M.O.19 knife and the same was recovered under Ex.P-13 mahazar.

(h) Based on the confessional statement of accused No. 1, P.W.21 arrested accused No. 4 and sent him for judicial custody. Further, based on the confessional statement of accused No. 1, P.W.21 took accused No. 3, who was already in judicial remand in respect of another case, into police custody, enquired him and recorded his confessional statement in the presence of P.W.2 and P.W.3. Pursuant to the admissible portion of his confessional Statement, which is marked as Ex.P-29, accused No. 3 took and produced two sovereign gold chain, which was recovered by P.W.21 under Ex.P-30 mahazar. P.W.21 enquired witnesses and recorded their statements. Thereafter, one Dinesh Kumar, Inspector of Police, took up the investigation and after perusing the case file, he filed final report against the accused under Sections 449, 302, 397, 414, 411 read with 120-B IPC.

After committal proceedings, the case was taken on file by the Sessions Court in S.C. No. 462/2008 and necessary charges were framed. To prove the charges against the accused, the prosecution examined 21 witnesses as P.Ws.1 to 21 and marked 30 documents as Exs.P-1 to P-30 and produced M.Os.1 to 24. On completion of the evidence on the side of the prosecution, when the accused were questioned u/s 313 of the Criminal Procedure Code about the incriminating circumstances found in the evidence of prosecution witnesses, he denied all of them as false. On the side of defence, no witness was examined but, however, one document was marked as Ex.D-1. The trial court, after hearing the parties, took the view that the prosecution has proved the charges against accused Nos. 1, 2 and 3 beyond reasonable doubt, found them guilty, convicted them thereunder and awarded punishment on the appellant/accused No. 3 as referred to above and hence this appeal has been brought forth by accused No. 3.

Advancing arguments on behalf of the appellant/accused No. 3, the learned Counsel would submit that this Court by its judgment, dated 23.06.2010, made in Crl.A.(MD) Nos. 202 and 208 of 2009, set aside the judgment of the trial court convicting accused No. 1 under Sections 449, 302 and 398 r/w 34 IPC and accused No. 2 u/s 302 read with 34 IPC and 397 read with 34 IPC and acquitted them from all the charges levelled against them. He would also submit that the charge against the appellant/accused No. 3 was that he received two sovereigns of gold chain, knowing fully well that it was a stolen property, from accused No. 1. In order to prove the said charge, the prosecution relied on the evidence of P.W.21, the Investigator and P.Ws.2 and 3, the recovery mahazar witnesses. According to P.W.21, based on the confessional statement of accused No. 1, he took accused No. 3, who was already in judicial remand in respect of another case, into police custody, and when enquired him he gave a voluntary confessional statement in the presence of P.W.2 and P.W.3 and pursuant to M.O.10, two sovereign gold chain, was recovered from accused No. 3 under a cover of mahazar which is marked as Ex.P-30 but, P.Ws.2 and 3, who are said to be the recovery mahazar witnesses did not support the case of the prosecution and they turned hostile and except P.Ws.2 and 3, the prosecution had no other evidence to offer to prove the charge against the appellant/accused No. 3 but, however, the trial court has wrongly found the appellant/accused No. 3 guilty of the charge u/s 411 IPC and therefore the appellant is entitled for an order of acquittal at the hands of this Court. Learned Counsel would further add that accused No. 4 in the case was charged u/s 414 IPC and the trial court did not believe the case of the prosecution in respect of accused No. 4 and recorded an order of acquittal in respect of him but in respect of accused No. 3 the trial court had miserably failed and erroneously accepted the case of the prosecution and recorded a judgment of conviction and sentence in respect of accused No. 3.

The Court heard the learned Additional Public Prosecutor on all the submissions made by the counsel for the appellant and paid its anxious consideration to the submissions made on either side and perused the materials on record.

It is true that the appeals filed by accused Nos. 1 and 2 in Crl.A.(MD) Nos. 202 and 208 of 2009 were allowed by this Court by the judgment, dated 23.06.2010, and set aside the judgment of the trial court after finding that the prosecution did not prove its case beyond reasonable doubt and they were acquitted of all the charges levelled against them.

Insofar as the appellant/accused No. 3 is concerned, the case of the prosecution is that he received two sovereigns of gold chain, which is marked as M.O.10, knowing fully well that it was a stolen property, from accused No. 1 and thus he has committed an offence punishable u/s 411 IPC. In order to substantiate the said charge, prosecution relied on the evidence of P.W.21, the Investigator and P.Ws.2 and 3, who are said to be the recovery mahazar witnesses. According to P.W.21, based on the confessional statement of accused No. 1, he took accused No. 3, who was already in judicial remand in respect of another case, into police custody, and when enquired he gave a voluntary confessional statement in the presence of P.W.2 and P.W.3 and pursuant to which, M.O.10, two sovereign gold chain, was recovered from accused No. 3 under a cover of mahazar, which is marked as Ex.P-30.

Insofar as the voluntary confessional statement alleged to have been given by the accused No. 3 and recorded by P.W.21 is concerned, the prosecution relied on Ex.P-29, the admissible portion of the confessional statement given by accused No. 3, pursuant to which the Investigator claimed to have recovered M.O.10, gold chain, directly from him. But, unfortunately, the mahazar witnesses, namely P.Ws.2 and 3 did not support the case of the prosecution and they turned hostile. There was no proof, except the alleged confessional statement given by the accused No. 3. In the absence of any acceptable evidence by the Court, it cannot be said that the prosecution has proved the charge against the appellant u/s 411 IPC and, therefore, the judgment of the trial court founding the appellant/accused No. 3 guilty u/s 411 IPC cannot be sustained and hence that part of the judgment of the trial court is liable to be set aside and the appellant has got to be acquitted of the charge levelled against him.

In the result, the appeal is allowed and the judgment of the trial court founding the appellant guilty u/s 411 IPC and sentencing him there under is set aside and the appellant is acquitted of the charges levelled against him. The fine amount, if any, paid by him is directed to be refunded. It is represented that the appellant is on bail. The bail bonds executed by him shall stand cancelled.