Murugan, M/30 v. The State Represented by

JUDGMENT (Judgment of the Court was delivered by R.SURESH KUMAR, J.) This appeal has been preferred against the conviction and sentence made by the Sessions Judge, Mahila Court, (Mahalir Neethimandram), Chennai dated 02.01.2018 in S.C.No.192 of 2015 in P.R.C.No.37 of 2015 on the file of XXIII M.M., Saidapet, Chennai in respect of A3 and A4 who are the appellants herein for the offence punishable under Section 411 r/w. 34 I.P.C.

¶2In fact, it is a case of murder, with regard to the said offence under Section 302 I.P.C., charge had been framed only against 1st and 2nd accused. Insofar as the 3rd, 4th and 5th accused are concerned, charge was framed for the offence punishable under Section 411 r/w. 34 I.P.C. The trial Court, in the judgment impugned, convicted and sentenced A1 and A2 for the offences under Section 450, 302 and 380 r/w. 34 I.P.C.

¶3In respect of A3 and A4, the trial Court convicted these two appellants under Section 411 r/w. 34 I.P.C. Insofar as A5 is concerned, he has been found not guilty for the offence under Section 411 r/w. 34 I.P.C. accordingly, he has been acquitted.

¶4As against the conviction and sentence for A1 and A2, the learned counsel appearing for the present appellants as well as the learned Additional Public Prosecutor stated that there has been no appeal.

¶5Insofar as the present appeal is concerned, it is filed by the A3 and A4 as against the conviction and sentence of 6 months with fine of Rs.5000/- for the offence punishable under Section 411 r/w. 34 I.P.C.

¶6Heard Mr.V.Krishnamoorthy, learned counsel appearing for the appellants and Mr.S.Raja Kumar, learned Additional Public Prosecutor appearing for the respondent.

¶7According to the prosecution, the charge made against the appellants/A3 and A4 along with A5 reads thus: "ehd;fhtjhf - nkw;go

rk;gtj;jd;

bjhlh;r;rpahf.

1tJ vjphpahfpa ePh; kPjk; ,Ue;j xU jhyp brapid kJuhe;jfj;jpy; cs;s 4tJ vjphpahfpa ck;kplk; mlF itf;fr; brd;w nghJ ePh; mjid jpUl;L eif vdj; bjhpe;Jbfhz;ljhft[k;. 4tJ vjphp brhd;dgo 4tJ vjphpapd; kfdhd 5tJ vjphpahfpa ePUk;. 4tJ vjphpapd; filapy; ntiy bra;a[k; 3tJ vjphpahfpa ePUk; To. 1tJ vjphpapd; bgaUf;F urPJ nghlhky; utp vd;w bgahpy; U:/80.000--f;F mlF itg;gJ nghy urPJ nghl;L 5tJ vjphpahfpa ePh; utp vd me;j urPjpy; ePnu ifbaGj;jpl;L eifia bgw;Wf; bfhz;Ls;sjhft[k; gpd;dh; 4tJ vjphpahfpa ePh; 1tJ vjphpaplk; U:/60.000--I bfhLj;Js;sjhft[k;. 1tJ vjphpahfpa

ePh;

mjid

$hypahf

bryt[ bra;Js;sjhft[k;. 4tJ vjphpahfpa ePh; 3 kw;Wk; 5tJ vjphpfspd; cjtpa[ld; 1tJ vjphp bfhLj;j eif jpUl;L eif vd;W bjhpe;Jk; mjid mlF itf;f bgw;Wf; bfhz;Ls;sjhy;. 3 Kjy; 5 vjphpfshfpa eP';fs; ,/j/r/ 411 c-,/ 34 gphptpd; fPH; tprhhpf;fj;jf;fJk;.

,e;ePjpkd;sj;jhy; jz;of;fj;jf;fJkhd Fw;wj;ij g[hpe;Js;sPh; vd Fw;wr;rhl;L tidag;gl;Ls;sJ/"

¶8In order to prove the aforestated charge against the three accused viz., A3, A4 and A5, the prosecution specifically depended the evidence of P.W.17 who is the Assistant in Revenue Department who stood as a confession witness for A1, A2 and A3. If we go through the evidence recorded by P.W.17 in his chief examination, he has stated before the trial Court the following: "... 1tJ vjphpapd; xg;g[jy; thf;FK:yj;jpy; cs;s rhl;rpapd; ifbahg;gk; kl;Lk; m/j/rh/M.9/ nkw;go ,uz;L vjphpfSk; kJuhe;jfj;jpy; cs;s mlF filapy; eifia mlkhdk; itj;jpUg;gjhft[k; mlF filia fhz;gpg;gjhft[k; brhd;dhh;fs;/ Kjy; vjphpapd; xg;g[jy; thf;FK:yj;jpy; mDkjpf;fg;gl;l gFjp m/j/rh/M/10/ vd;dplk; fhz;gpf;fg;gLk; xg;g[jy; thf;FK:yj;jpy; fz;Ls;sJ vd;Dila ifbahg;gk; jhd;/ rhl;rpaplk; ,uz;lhtJ vjphpa[ila xg;g[jy; thf;FK:yk; fhz;gpf;fg;gl;lJ/ 2tJ vjphpapd; xg;g[jy; thf;FK:yj;jpy; cs;s rhl;rpapd; ifbahg;gk; kl;Lk; m/j/rh/M/11/

,uz;lhtJ

vjphpapd;

xg;g[jy; thf;FK:yj;jpy; mDkjpf;fg;gl;l gFjp m/j/rh/M/10/ vd;dplk; fhz;gpf;fg;gLk; xg;g[jy; thf;FK:yj;jpy; fz;Ls;sJ vd;Dila ifbahg;gk; jhd;/ rhl;rpaplk; ,uz;lhtJ

vjphpa[ila

xg;g[jy;

thf;FK:yk; fhz;gpf;fg;gl;lJ/

2tJ

vjphpapd;

xg;g[jy; thf;FK:yj;jpy; cs;s rhl;rpapd; ifbahg;gk; kl;Lk; m/j/rh/M/11/

,uz;lhtJ

vjphpapd;

xg;g[jy; thf;FK:yj;jpy; mDkjpf;fg;gl;l gFjp m/j/rh/M/12/ Ma;thsh; nkw;go M$hpy; cs;s 1. 2 vjphpfisa[k; vd;ida[k;. tp V X fjpnurida[k; kJuhe;jfj;jpw;F nfhj;jk;re;j; mlF filf;F miHj;J brd;whh;/ M$hpy; cs;s 3tJ vjphpahd KUfd; nkw;go mlF filapy; ,Ue;jhh;/ 3tJ vjphpaplk; nghyPrhhplk; thf;FK:yk; bfhLj;jhh;/ mjid nghyPrhh; gjpt[ bra;jhh;fs;/ 3tJ vjphpapd; xg;g[jy; thf;FK:yj;jpy; cs;s rhl;rpapd; ifbahg;gk; kl;Lk; m/j/rh/M/13/ M$h; vjphp KUfdplk; ,Ue;J o tp khly; brapd; xd;W jhypa[ld; ToaJ (rh/bgh/8) ifg;gw;wg;gl;lJ/ vd;dplk; fhz;gpf;fg;gLk; ifg;gw;Wjy; kfrhpy; fz;Ls;sJ vd;Dila ifbahg;gk; jhd;/ me;j ifg;gw;Wjy; kfrh; m/j/rh/M/14/ nghyPrhh; vd;id tprhuiz bra;jhh;fs;/"

¶9In his cross examination, the P.W.17 has stated the following: ".... ,Jtiu ehd; ve;j tHf;fpYk; nghyPrhUf;F rhl;rp brhd;djpy;iy/ jw;nghJ jhd; Kjy; Kiwahf rhl;rpak; mspj;Js;nsd;/ nkw;go rh/bgh/8 mlkhdk; itf;fg;gl;oUe;j eif vd;why; Mk;/ mlkhdj;jpw;F urPJk; bfhLj;jpUe;jhh;fs; vd;why; Mk;/ mlkhdk; itj;j urPij nghyPrhh; gwpKjy; bra;jhh;fs;/ mlkhdk; itj;J th';FtJ rl;lg;go Fw;wk; ,y;iy vd;why; rhpjhd;/"

¶10This evidence has been mainly relied upon by the prosecution and the learned Judge of the trial Court has given the following discussion about the evidenciary value of the said witness: "54. ..... The evidence available on record also proves that the 4th accused is the receiver of the stolen property and the 3rd accused is the person available in the Pawn Broker Shop of the 4th accused from whom M.O.8 was recovered. However, I do not find any evidence against the 5th accused in order to connect him to the offence u/s.411 IPC. Hence, I conclude that the prosecution has proved the charges u/s. 450, 302 and 380 r/w. 34 IPC as against the 1st and 2nd accused and the charge u/s. 411 r/w. 34 IPC against the 3rd and 4th accused beyond reasonable doubt. Thus the point is answered accordingly."

¶11The trial Court also discussed the evidence recorded by P.W.26 who is Investigating Officer and the relevant portion of the order reads thus: "44. .... Hence, the evidence of P.W.26 regarding the recovery of material objects remains unchallenged as against the accused 1 & 2. P.W.26 did not speak anything about the involvement of the 4th and 5th accused in his chief examination. But, in the cross examination, he has stated that 4th and 5th accused have been impleaded in this case since 4th accused has received the stolen articles and the 5th accused has given a Receipt in the name of one Ravi. But, the alleged Receipt given by him in the name of Ravi was not produced before the Court. So, the evidence of P.W.26 regarding the recovery of stolen properties pertains to only 3rd and 4th accused and P.W.13." With the availability of these evidences, the trial Court has found the accused 3 and 4, who are the appellants, herein are guilty of offence punishable under Section 411 r/w. 34 I.P.C. and therefore such a conviction and sentence was awarded.

¶12Mr.V.Krishnamoorthy, learned counsel appearing for the appellants has stated that the main charge that was made against these two appellants who stood as A3 and A4 as well as A5, according to the prosecution is that, all the three knowing well that a portion of the property was a stolen one and with that knowledge they received such a stolen property from A1 and A2 and in this context, it is the further case of the prosecution that, as against the receipt of such stolen goods, a receipt not in the name of A1 or A2 but in the name of one Ravi has been prepared and given and in that receipt, A5 has signed as if that he is the Ravi and keep the receipt with him.

¶13Explaining further this case of the prosecution, the learned counsel would contend that, if at all the three accused viz., A3, A4 and A5 had a knowledge about the stolen goods despite that knowledge they received the stolen goods for which a fake receipt having been prepared and was kept intact by A5, that receipt should have been recovered and marked as a document i.e. Exhibit before the trial Court. However, P.W.26 i.e. Investigating Officer has admitted that such an exhibit he has received but not marked.

¶14The learned counsel also pointed out that, the A5 has been acquitted by the trial Court. Once the A5 is acquitted by the trial Court what is the link and knowledge with regard to the alleged offence punishable under Section 411 r/w. 34 I.P.C. as charged by the prosecution has no legs to stand and therefore, the conviction that has been given against A3 and A4 who are the appellants herein by the trial Court is without any evidence, he contended.

¶15However, Mr.S.Raja Kumar, learned Additional Public Prosecutor appearing for the respondent would canvass the point that, it is on the basis of the confession statement, where only admissible part of the A3 has been marked, the prosecution had gone to the place of A4, who is a Pawn Broker and his shop only the A3 was working and A5 is the son of A4. During the investigation it was revealed that the property i.e. M.O.8 which is a part of the stolen property was recovered only from A4. Against such property since there has been no proper explanation given by A4 and A3 had given his statement that, that was the stolen property brought by A1 and A2 and knowing well that all the three accused i.e. A3 to A5 decided to receive it. If that being so, it is a clear case where A3 to A5 joint together and decided to receive the M.O.8 knowing well that it is a stolen goods, thereby they committed the offence punishable under Section 411 r/w. 34 I.P.C.

¶16The learned Additional Public Prosecutor would also submit that, merely because the A5 has been acquitted by the trial Court and the receipt in the name of Ravi prepared by A5 and recovered by the Investigating Officer (P.W.26) has not been marked as an exhibit that would not be a fatal to the prosecution case insofar as the charge made against A3 and A4 is concerned, he contended.

¶17We have considered the said arguments advanced by the learned counsel appearing for both sides and also have perused the records placed before this Court.

¶18The very charge made against the A3 to A5 as extracted herein above only relates to the alleged receipt of stolen goods for the offence punishable under Section 411 r/w. 34 I.P.C. Therefore, first of all the prosecution must have established the case that the accused 3 to 5 had a knowledge that M.O.8 is a stolen goods and knowing well that it is a stolen goods they decided to receive it. In this context, the main contention of the prosecution side is that, in order to receive the M.O.8 i.e. the stolen goods, instead of giving receipt directly either to the A1 or A2 they made a receipt which is fake one in the name of one fictitious person viz. Ravi and this has been made by A5 with a concurrence and connivance of A3 and A4. It is also the prosecution case that, that receipt has been recovered by the prosecution as deposed by P.W.26 (Investigating Officer). However, that exhibit has not been marked before the Court admittedly. Since the said alleged fake receipt prepared in the name of Ravi is the main basis to come to a conclusion that the accused A3 to A5 had an object intentionally to receive the stolen goods, the prosecution must have marked that exhibit that is the receipt in the name of Ravi.

¶19In this context, what has been triggered in the mind of the learned Judge to acquit the A5, the same reason would apply equally to A3 and A4 also.

¶20Merely on the basis of the alleged confession statement given by A3, the prosecution cannot built up their case and based on which the trial Court ought not to have come to a conclusion that the charge framed against A3 and A4 has been proved beyond reasonable doubt and therefore they could be found guilty for the said offence.

¶21Even in the evidence of P.W.17, especially in the cross examination, he has stated that, he said in the affirmative whether the M.O.8 was a pledged goods and also he had stated to the question whether receipt had been given for the pledge, he said in the affirmative. He also stated that the police has recovered the receipt for the pledge.

¶22When that being the position, whether the A3 to A5 with or without the knowledge about M.O.8, that it is a stolen goods, have received the said goods, has not been clearly investigated and established by the prosecution.

23.This aspect has not been considered in proper perspective by the learned trial Court Judge and therefore his reasoning given in the judgment impugned to reach a conclusion that the A3 and A4 can be found guilty for the offence punishable under Section 411 r/w. Section 34 I.P.C. is not based on any evidence and therefore, we do not have any hesitation to hold that the finding and the conclusion arrived at by the trial Court in the judgment impugned in respect of these appellants who stood as A3 and A4 cannot be sustained and therefore it is to be interfered with.

¶24In the result, the conviction and sentence made by the Sessions Judge, Mahila Court, (Mahalir Neethimandram), Chennai dated 02.01.2018 in S.C.No.192 of 2015 in P.R.C.No.37 of 2015 on the file of XXIII M.M., Saidapet, Chennai is hereby set aside and the appeal is thus allowed. The fine amount of Rs.5000/- each by these appellants paid shall be refunded to the accused by the concerned authority. [R.S.K. J.] [K.B. J.]

06.07.2023 Index : Yes Speaking Order : No

Sgl To

1.The Sessions Judge, Mahila Court, (Mahalir Neethimandram), Chennai.

2.The Inspector of Police (L&O), R10 MGR Nagar Police Station, Chennai – 600 083.

3.The Public Prosecutor, High Court, Madras.

Crl.A.No.15oofo2018 oooR.oSURESHoKUMAR,oJ. And K.KUMARESHoBABU,oJ. Sgl CriminaloAppealoNo.15oofo2018

06.07.2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.07.2023 CORAM THE HON'BLE Mr. JUSTICE R.SURESH KUMAR AND THE HON'BLE Mr. JUSTICE K.KUMARESH BABU Criminal Appeal No.15 of 2018 1.Murugan 2.Gowtham ... Appellants/3rd and 4th Accused Vs. The State represented by, The Inspector of Police, L&O, R10 MGR Nagar Police Station, Chennai – 600 083. ... Respondent/Complainant Prayer : Appeal filed under Section 374 of Criminal Procedure Code praying to set aside the conviction and sentence imposed on the appellant in S.C.No.192 of 2015 on the file of the learned Sessions Judge, Mahila Court at Chennai dated 02.01.2018. For Appellants : Mr.V.Krishnamoorthy For Respondent : S.Raja Kumar Additional Public Prosecutor