State by Public Prosecutor vs Duraisamy and Ramakrishnan

S.A. Kader, J.—This appeal filed by the State is against the judgment of the Chief Judicial Magistrate, Thanjavur at Kumbakonam acquitting

both these Respondents-accused of the charge u/s 120-B, I.P.C., and acquitting the second Respondent/second accused of the charges under

Sections 451, 380, 201 and 419 read with section, 34, I.P.C.

These two Respondents were accused of several offences. Charge No. 1 was u/s 120-B, I.P.C, in that they along with the approver, P.W.1,

during the month of August, 1973, entered into a criminal conspiracy to commit theft of idol in Ambaravaneswarar temple in Hukkur village by

substituting the real idol with a counterfeit one. Both the accused have been acquitted of the said charge. Charge No. 2 was u/s 451, I.P.C., in that

on or about the same day, the accused 1 and 2 committed house trespass by entering into the building of Ambaravaneswarar temple to commit

theft. The first accused has been convicted of the said charge and sentenced to rigorous imprisonment for one year. The second accused has been

acquitted. The third charge is u/s 380, I.P.C., in that they, at the same time and place and in the course of the same transaction they committed

theft of Ursava Thaniamman idol in Ambaravaneswarar temple in Hukkur village. The first accused has been convicted of the said charge and

sentenced to suffer rigorous imprisonment for one year while the second accused has been acquitted. The fourth charge is u/s 201, I.P.C, against

both the accused in that they, at the same date, time and place and in the course of the same transaction, committed the theft of the idol of Ursava

Thaniamman by substituting in its place a duplicate one, and thereby caused disappearance of the evidence of theft. The first accused was

convicted of the said charge and sentenced to suffer rigorous imprisonment for one year; the second accused has been acquitted of the said

charge. The fifth and the final charge is u/s 419 read with Section 34, I.P.C, in that these two accused at the same date, time and place and in the

course of the same transaction and in pursuance of their common intention substituted the counterfeit idol in the place of the original idol of Ursava

Thaniamman in Ambaravaneswarar temple at Hukkur. Here again, the first accused has been convicted of the said charge and sentenced to suffer

rigorous imprisonment for one year while the second accused has been acquitted.

The brief facts of the case are these: The first accused was a Deputy Post-master at Thanjavur. P.W.1 was running a Nursery School. They

developed illicit intimacy and P.W.1 was living as a mistress of the first accused. Sometime in 1973, the first accused and P.W.1 went to the house

of P.W.2 Sukkur at Rajagiri, who was an extra departmental servant in the Postal Service for the purpose of borrowing a loan. There they met the

second accused, who is a native of Salem P.W.2 introduced the second accused to the first accused and they were talking together. At that time

the second accused suggested to the first accused that they could do business in stealing and selling idols from the temple. The second accused

promised to sell stolen idols for high value. He also suggested that the archakars in the temple must be caught hold and with their connivance the

idols could be substituted. Some time later, in July, 1973, the accused 1 and 2 and P.W.1 went to Putridam Kondeswarar temple in Ammapettai

Puthur, There were a number of idols in that temple, but, as the archakar, P.W.9 was a young and active person, it was not possible to commit any

theft therein. The accused 1 and 2 had a talk with P.W.9 and ascertained from him that his co-brother P.W 10 was the archakar in Hukkur

temple. In the month of August, 1973, all of them went to Hukkur temple and met P.W. 10, the archakar of that temple. At the Artha Mandapam,

there was an idol of Amman and the second accused took measurement of that idol with a thread which he was having in his hand. The accused 1

and 2 and P.W.1 decided to commit theft of this idol by substituting it. P.W.1 suggested that two identical skirts can be made and the duplicate

idol with one such skirt can be substituted. With that idea in mind, all of them returned. Subsequently, the duplicate idol under M.O.1 was

purchased by the second accused from P.W.7, a sculptor. The first accused then wrote to P.W.10 that he would come with family to the temple

for performing abishekam. Exs. P4 and P5 are the letters written by him and they are dated 26th August, 1973 and 24-8-1973 respectively.

About a week later, the first accused and P.W.1 went to the temple at Hukkur and met P.W.10. All arrangements for abishekam was made and

the original idol was adorned with the skirts brought by the first accused. Thereafter, as P.W.10 was performing the abishekam, P.W. 1 engaged

him in conversation and at that time the first accused removed the original idol and substituted the duplicate M.O.1 idol kept in the box dressed

with the same kind of skirt. After Abishekam was over, the first accused and P.W.1 took meals in the house of P.W. 10, paid him Rs. 10 and

went away with the stolen idol.

The stolen idol was handed over to the second accused by the first accused to be sold, but, the second accused, after several months, returned

the idol representing that he was not able to sell it.

PW.23, the Inspector of Police, C.I.D., in the course of investigation of another case, came across this crime, arrested the first accused,

examined him and registered a case in Cr. No 79/75 of Nachiarkoil Police Station. He seized M.0.1, substituted the idol and had it compared with

M.O.3 photo of the original idol with the help of P.W.13 and of P.W.19. P.W.1 turned approver and PW.20, the Judicial Second Class

Magistrate recorded her statement under Ex.P6. After completion of the investigation the charge-sheet was filed.

The plea of the accused was one of total denial.

The learned Chief Judicial Magistrate acquitted both the accused of the charge of conspiracy under Sections 120-B, I.P.C. But, he found the

first accused guilty of all the other charges under Sections 451, 380, 201 and 419, I.P.C. and convicted and sentenced him as stated above. He

found the second accused not guilty under Sections 451, 380, 201 and 419 read with Section 34, I.P.C. It is against the acquittal of both the

accused under Charge No. 1 of conspiracy and of the acquittal of the second accused on Charges 2 to 5 under Sections 451, 380, 201 and 419,

I.P.C., this appeal has been preferred.

The charge of conspiracy is that the accused 1 and 2 met in the house of P.W.2 some time in August, 1973, and in the course of the

conversation, the second accused is said to have suggested the theft and sale of idols and promised to sell the stolen idols at a profitable rate. This

case of conspiracy is spoken to only by P.W.1, the accomplice turned approver. It is well settled that the testimony of the approver must first be

four reliable and even if it is reliable, it must receive corroboration on material particular. We find no corroboration whatsoever to the testimony of

P.W.1. In fact, the testimony of P.W.2 shows that P.W.1 is not speaking the truth. According to P.W.1, when the accused 1 and 2 were talking

over the matter, P.W.1 left the house. But, P.W.2 does not speak to any such leaving of the house and the accused 1 and 2 talking between

themselves. It is the evidence of P.W.1 that the second accused promised to get a high price for the stolen idols, but the fact is, he has been unable

to dispose of this idol and had to return it to the first accused. The testimony of P.W.1 does not appear to be true and the whole case of

conspiracy set up by the prosecution has, therefore, to fail. The learned Chief Judicial Magistrate has rightly found that Charge No. l u/s 120-B,

I.P.C., has not been proved and acquitted both the accused. The said decision is not liable to be impugned.

The case against the second accused regarding the other charges of house trespass into the temple, the theft of the idol, the screening of the

evidence and the substitution of the counterfeit idol rests upon the testimony of P. Ws 1, 9 and 10. As already pointed out, P.W. 1 does not

appear to be a truthful witness, and her evidence is not entitled to acceptance. P.W.9 is the archakar of Putridam Kondeswarar temple. According

to him, the accused 1 and 2 and P.W.1 came to the temple in 1973 and talked with him, and it was he who told them that his co-brother P.W.10

was working as the archakar in the Amman temple at Hukkur. That was the first meeting of P.W.1 with the second accused and thereafter he has

met him only in Court in 1976. No identification parade has been conducted to enable P.W.9 to identify the second accused and hence his

identification of the second accused in Court is of no value. It cannot, therefore, be said on the basis of the testimony of P.W.9 that the second

accused went along with the first accused and P.W.1 Putridam Kondeswarar temple in or about June, 1973. P.W. 10 is the next witness, who

speaks about the second accused. He is an archakar of the Amman temple at Hukkur. His testimony is that in June, 1973, the accused 1 and 2

and P.W. 1 came to him and wanted to perform archana. According to P.W.1, they went to this temple only in August, 1973 for the first time.

Here again, there is inconsistency between the evidence of P. Ws.1 and 10. The second accused has not gone to this temple subsequently, and this

witness identifies P.W.10 in Court for the first time in 1976. With respect to P.W.10 also there was no identification parade and the identification

of the accused in Court three years after the event does not carry conviction. I am therefore unable to place any reliance on the testimony of P.W.

10 also. Therefore, there is no acceptable evidence to connect the second accused with any of these charges and the court below has rightly

acquitted him of all the charges.

In the result, the appeal fails and is dismissed.