Shankar vs The Inspector of Police

P. Devadass, J.—Though appellant Shankar in Crl. A.No. 75 of 2012 and appellant Ramesh in Crl. A.No. 76 of 2012 were convicted and

sentenced by the learned Additional Sessions Judge, (Fast Track Court. I), Erode by separate judgments since they were rendered on the very

same evidence, these two criminal appeals were heard together and are being disposed of by this Common Judgment. Actually in Cr. No. 39 of

2004, registered by Uthukuli Police Station, there are five accused, namely, 1) Raja, 2) Shankar, 3) Ramesh, 4) Venkatesh @ Venkatasami and

5) Palanivel. Out of them, some of them have appeared before the Committal Court and some of them have absconded. In the circumstances, the

case against the absconding accused were split up. The learned Committal Magistrate committed the case against appellants Shankar (A2) and

Ramesh (A3) to the Court of Principal Sessions Judge, Erode by separate orders. The learned Sessions Judge took the case against appellant

Shankar on file in S.C.No. 153 of 2009 and the case against appellant Ramesh (A3) in S.C.No. 102 of 2009 and made over them to the

Additional Sessions Judge (Fast Track Court No. I), Erode for trial.

In both the cases, before the trial court, very same evidence was let in. However, on 11.01.2012, the learned Additional Sessions Judge

rendered separate judgments in each case. Thus, the appellants have preferred separate appeals to this Court, namely, Crl. A.No. 75 of 2012 and

Crl. A.No. 76 of 2012.

It is pertinent to note that the procedure adopted by the learned Additional Sessions Judge is not correct. After obtaining orders from the

learned Principal Sessions Judge, he should have clubbed both the cases and analysed the common evidence and rendered a single Judgment. Be

as it may, now, we shall proceed to dispose of these appeals on merits.

For convenience sake, let us call appellant Shankar (Crl. A.No. 75/2012) as first appellant and appellant Ramesh (Crl. A.No. 76/2012) as

second appellant.

On 11.01.2012, the Trial Court convicted and sentenced the appellants as under:

All the sentences were directed to run concurrently.

The case of the prosecution, in brief, runs as under:-

(i) In Erode District, in Uthukuli, in a lonely place, on a hillock, there is Vetrivelayuthasamy Temple. P.W. 1 Dhandapani Gurukal is its priest.

Every day, at about 6 a.m., in the temple, he perform pooja and leave the temple at about 8 p.m. Deceased Murugan @ Murugasamy was its

Night watchman.

(ii) As usual, on 27.01.2004, at about 6 a.m., P.W. 1 came to the temple. He had seen some ropes hanging over the temple wall. Near the pail,

there was a wooden reaper. He called the deceased. There was no response. Entertaining some suspicion, P.W. 1 brought the temple clerk, P.W.

2 Saravanan. They have seen the temple door found open. Inside the temple, the deceased was found dead with injuries. The Table-drawers,

Hundi were found broken. Inside the sanctum sanctorum, the deity''s coronet, chest-armour, feet-armour, hand-armour were found missing. The

TVS-50 of the deceased was also found missing.

(iii) At about 8 am, at the Uthukuli police station, P.W. 1 gave Ex. P. 1, complaint to P.W. 12-Duraisamy, Sub-Inspector of Police. He registered

this case(Ex. P. 24 FIR). He send the F.I.R. through constable Duraisamy to the Judicial Magistrate, Perundurai. P.W. 12 gave a copy of F.I.R. to

P.W. 14 Inspector Natrajan.

(iv) P.W. 14 took up his investigation. Visited the scene place. On his request, the photographer photographed the dead body and the scene

place. In the presence of P.W. 4, Azhagesan and one Palanisamy, P.W. 14 prepared Ex. P. 4, Observation Mahazar. Drew Ex. P. 25, Rough

Sketch. In the presence of witnesses, P.W. 14 seized bloodstained-dhoti (M.O. 6), pillow(M.O. 7), bed-sheet (M.O. 8), two gunny bags(M.O. 9

series), bloodstained-tiles(M.O. 10), Plain-tiles(M.O. 11), five locks (M.O. 12 series), basket(M.O. 13), Iron-lock(M.O. 14), crow-bar(M.O.

15), blood stained-wooden reaper (M.O. 16), Rope(M.O. 17), chappals (M.Os. 18 and 19 series), broken cash-box(M.O. 20), steel

handle(M.O. 21), 3 rexin bags(M.O. 22 series) under Ex. P5 Mahazars. P.W. 14 also prepared Ex. P. 10 further observation mahazar.

(v) In the presence of panchayathdars, P.W. 14, held inquest over the dead body of Murugan @ Murugasamy (Ex. P. 26, Inquest Report). He

sent the dead body to the Govt. Hospital, Tiruppur through P.W. 9 Head Constable, Ravichandran for conducting post-mortem.

(vi) At about 3.30 p.m., at the said Hospital, P.W. 10 Dr. Kulandaivelu conducted post-mortem on the dead body of Murugan @ Murugasamy

and noticed the following injuries:

A cut injury over chin 6cm x 2cm, bone deep.

A contusion over right cheek.

Contusion with multiple abrasion below neck and front of neck.

(vii) P.W. 10 opined that the deceased would have died of shock and hemorrhage due to multiple injuries and asphyxia about 15-21 hours prior to

autopsy. (see Ex. P. 23, post-mortem certificate)

(viii) On 02.05.2005, at about 11.30 a.m., in Kunnathur -Adali Road, when P.W. 13 Murugan, Sub-Inspector of Police was on vehicle check-up

in connection with Cr. Nos. 128 and 129/2005 of Sambalpatty Police Station, appellant Shankar and Raja came in TVS-50 bikes. In the

presence of P.W. 7 Jothiramalingam and another person, P.W. 13 arrested them, recorded their confessional statement and seized the bikes.

From their said statement, P.W. 13 came to know that they are also involved in the present Uthukuli Police Station case in Cr. No. 39 of 2004.

He send message to the Erode District Police and produced the accused to the Court for their judicial custody.

(ix) After P.W. 14, P.W. 15 Raju continued the investigation. P.W. 15 perused the confessional statement of appellant Shankar in the Cr. Nos.

128 and 129/2005 of Sambalpatty Police Station and appellant Ramesh in Cr. No. 147/2005 of Uthangarai Police Station. On 07.05.2005,

based on the orders of the Judicial Magistrate, Perundurai, P.W. 15 effected formal arrest of the said accused at the Central Prison, Salem. On

09.05.2005, from the said Magistrate, he obtained them for police custody from 09.05.2005 to 12.05.2005.

(x) On 11.05.2005, at about 6 a.m., at the Police Station, in the presence of P.W. 5 Andamuthu, V.A.O. and Subramani, P.W. 15 recorded Ex-

P12, confessional statement of appellant Shankar and at about 8 a.m., recorded Ex-P13 confessional statement of appellant Ramesh. In pursuance

of his confessional statement, in the presence of said witnesses, from near a palmyrah tree, near his father-in-law''s house, in Puliyandipatty,

appellant Ramesh digged a place and produced M.O. 1 coronet covered in M.O. 23 polythene cover. P.W. 15 seized them under Ex. P. 14,

Mahazar. In pursuance of his confession, at about 6 p.m., appellant Shankar digged a place behind his house in Elakur and produced M.O. 5 feet-

armour covered in M.O. 25 polythene bag. P.W. 15 seized them under Ex. P16 Mahazar. P.W. 1 He identified that they belong to the temple.

P.W. 15 produced the case-properties to the Court under Form-95. He produced the accused to the Court for judicial custody. Concluding his

investigation, he filed Final Report against appellants Ramesh, Shankar and other accused under Sections 449, 302, 396, 395 r/w 397 IPC.

To substantiate the charges, prosecution examined P.Ws. 1 to 15, marked Ex. P. 1 to P. 27 and exhibited M.Os. 1 to 32.

When the accused were examined u/s 313 Cr. P.C on the incriminating aspects in the prosecution evidence, they denied their complicity in this

case and they did not examine any witness nor produce any document.

Appreciating the evidence, the Trial Court came to the conclusion that the Section 27 Evidence Act Recovery of the temple properties from the

possession of the appellants has been established and on that there arises presumption u/s 114 illustration (a) of Evidence Act as against the

accused and there was no explanation as to their possession of the temple property from the accused and thus, concluded that the prosecution has

established its case beyond all reasonable doubts and thus, convicted and sentenced the appellants as stated already in paragraph 3 supra.

Mr. R. Sankarasubbu, learned counsel for the appellants would contend that there is no evidence to link the appellants as to the death of the

deceased. The learned counsel would further contend that the recovery of temple properties from the possession of the appellants has not been

established. Some silver ornaments were planted, cooked up as missing items from the temple and a stage-managed recovery has been enacted.

The recovery is alleged to have been effected in a residential area. However, no independent witness except the obliging witness P.W. 5, V.A.O.

has been examined. P.W. 15, the Inspector, who is alleged to have effected the recovery also admits that he did not take any effort to have any

independent witness for the recovery. In these circumstances, the learned counsel would contend that the Trial Court is not right in raising

presumption against the appellants referring to illustration (a) to Section 114 Evidence Act.

On the other hand, Mr. V.M.R. Rajendran, learned Additional Public Prosecutor would contend that based on the confessional statement of

the appellants, the ornaments of the deity stolen from the temple have been recovered and this has been established through the evidence of P.Ws.

5 and 15. Learned Additional Public Prosecutor would further contend that based on the recovery evidence, the trial Court was right in raising

presumption under illustration (a) to Section 114 of the Evidence Act.

We have anxiously considered the arguments of both sides, perused the entire evidence on record and also the impugned Judgment of the Trial

Court.

On the early morning of 27.01.2004, in Kaithaimalai Murugan temple in Uthukuli, the temple Night watchman Murugan @ Murugasamy was

found dead with injuries. As per the evidence of the post-mortem Doctor P.W. 10 Kulandaivelu, he died due to homicidal violence.

The evidence of temple priest P.W. 1 Dhandapani Gurukal and its clerk P.W. 2 Saravanan disclosed that from the deity in the sanctum

sanctorum, silver articles viz., coronet(M.O. 1), right-hand armour (M.O. 2), Chest-armour (M.O. 3), left hand armour(M.O. 4) and feet-armour

(M.O. 5 series) were found missing.

It is a clear case of murder for gain.

The prosecution version is that out of the said M.Os. 1 to 5, based on Ex. P. 12, confessional statement of appellant Shankar, M.O. 5 series

feet-armour and based on Ex. P. 13 confessional statement of appellant Ramesh M.O. 1 coronet have been recovered by P.W. 15, Inspector

Raju in the presence of P.W. 5 Aandamuthu, V.A.O. and Subramani.

The Trial Court convicted the appellants on the premises that the Section 27 Evidence Act recovery of M.Os. 1 and 5 silver articles based on

the confessional statement of the appellants have been established and on the ''recovery evidence'', the presumption under illustration (a) to Section

114 of Evidence Act arises and in the circumstances during their examination u/s 313 Cr.P.C., there was no explanation from the accused as to

their possession of the said articles. Thus, all the above aspects are based on the ''recovery evidence'' pressed into service in this case by the

prosecution.

By evidence, it is established that the silver articles M.Os. 1 and 5 belongs to the temple. In this case, first and foremost duty of the

prosecution is to establish that the said silver articles were recovered based on the disclosure statement of the appellants Exs. P12 and 13.

The truthfulness and genuineness of the recovery must be proved. The recovery must be proved like any other fact. The prosecution must

prove the recording of the confessional statement and the recovery of the properties consequent upon the information recorded from the accused

for the purpose of Section 27 of Evidence Act.

On the night of 26.01.2004, M.Os. 1 to 5 silver articles were missing from the temple. On 11.05.2005, a part of them, namely, M.O. 1 silver

coronet is said to have been recovered by P.W. 15 Inspector Raju, based on Ex. P13 confessional statement of appellant Shankar, near his

father-in-law''s house, in Puliyandipatty and M.O. 5 temple property is stated to have been recovered by P.W. 15, on the basis of Ex. P12

confessional statement of appellant Ramesh near his house in Elakur.

According to P.W. 15, P.W. 5 and one Surbamani attested the recording of the said confessional statements at the Police Station from the

accused and the seizures were witnessed by P.W. 5 and Subramani and they have attested the recovery mahazars Exs. P. 14 and 16.

P.W. 5 Andamuthu is Village Administrative Officer of Kunnathur. He had spoken about the recording of said confessional statements and

also about the seizure of M.Os. 1 and 5 in pursuance of the confessional statements.

It is to be noted that both the recoveries were stated to have been effected at residential areas, namely, Puliyandipatty and Elakur. Except

P.W. 5 who has obliged P.W. 15 Investigation Officer by witnessing the recording of the confessional statements from the appellants at the Police

Station and also accompanied P.W. 15 all along to Puliyandipatty and Elakur, no other witness has been examined. It is pertinent here to note that

in his cross examination, P.W. 15 admits that he did not request the independent witnesses present in the said places to witness the seizures and

sign the seizure mahazars.

There is yet another infirmity P.W. 13 Murugan, S.I. of Police, who has recorded the confessional statement of appellant Shankar on

04.05.2005 in Kunnathur in connection with Cr. Nos. 128 and 129/2005 of Sambalpatty Police Station, came to know about Shankar''s

involvement in the Uthukuli Police Station Cr. No. 39 of 2004 and when he had arrested appellant Ramesh in connection with Cr. No. 147/2005

of Uthangarai Police Station, he came to know about Ramesh''s involvement in the said Cr. No. 39 of 2004 and only thereafter P.W. 15 came to

know about the involvement of both the appellants in Cr. No. 39/2004 and recorded their confessional statements Exs. P12 and 13 on

11.05.2005 and based on the information contained therein on the same day, P.W. 15 had recovered M.Os. 1 and 5. So, P.W. 15 already knew

about the alleged information as to the hidden place of the properties. However, to establish the genuineness of the recovery in the present case in

Cr. No. 39 of 2004, confessional statement of the appellants in the cases registered by Sambalpatty Police Station and Uthangarai Police Station

have not been produced before the Trial Court.

From the above, the evidence of P.Ws. 5, 13, 15 and non-examination of available independent witness by P.W. 15 exposes that the

recoveries projected in this case is tainted, open to doubt, lacks credibility and it is a stage-managed show.

Thus, the very recovery evidence pressed into service by the prosecution has not been established. Since the ''recovery'' itself has not been

established the question of raising presumption vide illustration (a) to Section 114 of Evidence Act and non offering of explanation by the appellants

as to the recovery during their examination u/s 313 Cr.P.C. does not arises.

It is axiomatic that, ""suspicion, however, strong cannot be elevated to the level of legal proof"". Dehors the so called Section 27 Evidence Act

Recovery about which we have seen elaborately, there is no evidence to link the appellant either with the death of the deceased or dacoity.

In the circumstances, we are of the considered view that the prosecution has not established the charges framed against the appellants beyond

all reasonable doubts.

Thus, the finding of the Trial Court that the appellants are guilty under Sections 449,396 IPC are liable to be set aside. In the result, both the

Criminal Appeals are allowed. The conviction and the sentences given in Sessions Case Nos. 153 of 2009 and 102 of 2009 by the learned

Additional Sessions Judge, Fast Track Court No-I, Erode are set aside. The appellants are acquitted from the charges framed against them. The

Superintendent, Central Prison, Coimbatore is directed to release them forthwith, if their further custody is no longer required in connection with

any other case. Fine amount, if paid shall be refunded.