Allowed

Chandru @ Ramachandran v. Inspector of Police

Madras HC30 Oct 2019CRL RC/669/2019

Case brief

AI extract

What is this about?

In a criminal revision against a conviction for theft, the High Court acquitted the petitioner because the fingerprint expert who lifted prints at the scene was not examined and the report was not marked, creating doubt over the recovery of stolen property.

What did the court decide?

The judgment confirming conviction was set aside; the petitioner is acquitted; bail bond cancelled and fine refunded.

Chandru @ Ramachandran Vs Inspector of Police — Cheating and Forgery | Madras HC (2019)

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BAIL SLIP

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The Appellant/Petitioner/Sole Accused namely Chandru @ Ramachandran was directed to be released on bail as per the Order of the Court order dated 30.09.2019in Crl.M.P. No. 9295/2019 in Crl.R.C.No.669 of 2019 .

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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CORAM

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THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA

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Chandru @ Ramachandran ...Petitioner/Accused

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The Inspector of Police, Nallur Police Station, Namakkal District. ...Respondent/Respondent

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PRAYER: Criminal Revision Petition is filed under Section 397 and 401 of Cr.P.C., to set aside the judgment passed against the petitioner by the learned Sessions Mahila Judge (Fast Track) at Namakkal in C.A.No.37 of 2017 dated 07.11.2017 passed confirmed the conviction order passed by the learned Judicial Magistrate, Paramathy, dated 19.06.2017 in C.C.No. 82 of 2012 convicting the petitioner and acquit him from all the charges.

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For Petitioner : Mr.C.H.Vinobha Gandhi

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For Respondent : Mr.M.Mohamed Riyaz

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Additional Public Prosecutor

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ORDER

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This Criminal Revision Petition has been filed, against the judgment of conviction and sentence in C.A.No.37 of 2017, dated 07.11.2017, passed by the learned Sessions Judge (Fast Track Mahila Court), Namakkal, confirming the judgement of conviction and sentence passed by the learned Judicial Magistrate, Paramathy in C.C.No. 82 of 2012 dated 19.06.2017, finding the petitioner guilty for the offences under Sections 457 & 380 of IPC and convicting and sentencing the petitioner/accused to

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undergo two years Rigorous Imprisonment and to a pay fine of Rs.1,000/-, in default, to undergo three months Rigorous Imprisonment for the offence under Section 457 of IPC and further sentencing the petitioner to undergo two years Rigorous Imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo three months Rigorous Imprisonment for the offences under Section 380 of IPC and ordering the sentences to run concurrently.

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The case of the prosecution in brief is that on 31.12.2011, during night hours, the petitioner/accused made a lurking trespass with an intention to commit an offence of theft in the house of the defacto complainant situated at Musalnaicken palayam, by removing the roof tiles of the house and committed theft of Rs.13,000/-, two sets of silver anklet, four silver coins, one waist chord and four gold ear studs weighing about 2½ sovereigns, five rings weighing about 3½ sovereigns, worth about Rs.75,000/- and thereby, committed the offences punishable under Sections 457 and 380 of IPC.

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The respondent Police had registered a case in Crime No.2 of 2012 and after completing the investigation, had filed a final report before the learned Judicial Magistrate, Paramathy. After taking the case on file, the copies were furnished to the petitioner under Section 207 of Cr.P.C., and while questioning, the petitioner had denied the charges for the offences under Sections 457 and 380 of IPC and sought to be tried. On the side of the prosecution, P.W.1 to P.W.5 were examined and Ex.P.1 to Ex.P.7 and M.O.1 series were marked. Neither any witness has been examined nor any document has been marked on the side of the defence. The trial Court after questioning the accused under Section 313 of Cr.P.C. and after hearing both sides, had found the petitioner guilty for the offences under Sections 457 and 380 of IPC and sentenced him to undergo imprisonment as stated above.

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As against the said conviction and sentence passed by the trial Court, the petitioner had preferred an appeal in C.A.No.37 of 2017 before the Court of Sessions (Fast Tract Mahila Court), Namakkal, and by the judgment dated 07.11.2017, the said criminal appeal was dismissed, confirming the conviction and sentence passed by the trial Court, as against which, the present revision petition has been filed.

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The evidence let in by the prosecution is that P.W.1 Kuttiannan, defacto complainant had gone to Chennai on 27.12.2011, after locking his house and he had returned on 01.01.2012 at about 12.00 noon. When he entered into his house, he had seen the five tiles of the top roof were removed from his house and he found that cash and gold articles were missing from

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the bureau and almirah of his house and thereby, he had preferred a complaint before the Nallur Police Station and the said complaint was marked as Ex.P.1. After lapse of fifteen days, he received an information that the stolen properties, which were marked as M.O.1 series, were recovered and thereafter, P.W.1 had gone to the Police Station and identified the properties. P.W.2 is the wife of P.W.1 and she had corroborated the evidence of P.W.1.

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P.W.3 had deposed that on 14.01.2012 at about 8.30 a.m., while he was standing at Thiruchengode bus stand, he had seen the Inspector of Police, Velagoundampatty, examining one person, and he had identified the accused and in his presence, the petitioner/accused had given a confession statement that he had trespassed into a house at Musalnaicken palayam, by removing the roof tiles and committed the theft of jewells. P.W.3 and one Ragupathy have attested in the confession statement of the accused and the signature of P.W.3 found in the confession statement was marked as Ex.P.2. The accused, while confessing, had taken out the articles from his inner packet and handed over the same to the Inspector of Police. The stolen properties were recovered in the presence of P.W.3 and another Ragupathy under a mahazar Ex.P.3.

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P.W.4 Subramani had signed in the observation mahazar Ex.P.4 prepared by the Police. P.W.5 the Sub Inspector of Police had received the complaint on 02.01.2012 at about 1.30 p.m., and registered a case in Crime No.2 of 2012 under Section 457 and 380 of IPC. The First Information Report was marked as Ex.P.5. Thereafter, P.W.5 handed over to P.W.6, the Inspector of Police for investigation. P.W.6 after receiving the records for investigation on 02.01.2012, had proceeded to the scene of occurrence at about 3.30 p.m., and prepared observation mahazar Ex.P.4 and a rough sketch Ex.P.6 in the presence of the witnesses Subramanian and Kuruvan. After completion of investigation, he had laid the charge sheet under Sections 457 and 380 of IPC on 14.03.2012, before the Judicial Magistrate Court, Paramathy.

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Heard both sides.

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The learned counsel appearing for the petitioner would submit that the trial Court as well as the appellate Court failed to take into consideration the inordinate delay in preferring the complaint and that admittedly, as per P.W.1, on 01.01.2012, he had found that somebody had trespassed into his house and committed theft of jewels whereas, the complaint has been given only on the next day at 1.30 p.m., and no plausible explanation had been given by the respondent for such delay in lodging the complaint. He would further submit that though

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finger print expert was called and finger prints were recovered from the scene of occurrence, no step had been taken by the respondent to examine the finger print expert or mark the report to prove his case thereby inferring that the finger print found in the scene of occurrence did not tally with the finger prints of the petitioner and thereby raising a serious doubt with regard to the case of the prosecution of the alleged involvement of the petitioner. The failure to examine the expert and mark the report raises doubt and thereby the Courts below ought to have granted the benefit of doubt to the petitioner/accused and acquitted him.

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9.1. The learned counsel appearing for the petitioner would further submit that the evidence of P.W.3 with regard to the recovery of articles from the person of the petitioner/accused is artificial and cannot be believed and further it is highly unbelievable that P.W.3 being the close relative of P.W.1 was present on 14.01.2012 at Tiruchengode bus stand, when the recovery was made, when especially, nothing has been stated about the identity of the petitioner, and that except the so called confession statement recorded from the petitioner at the time of arrest, no other legal evidence has been let in by the prosecution, thereby creating the presumption that the so called arrest and seizure and recovery are stage managed by the respondent, and the Courts below erred in convicting the petitioner. He would further submit that after conviction, the petitioner has undergone sentence for more than two years eight months and therefore he would pray to set aside the impugned judgment of conviction of the Courts below.

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9.2. In support of his contention, the learned counsel appearing for the petitioner relied upon the unreported judgment of this Court made in Crl.A.No.961 of 2005 dated 24.03.2008 in the case of the State Vs. Gunaseelan @ Guna, wherein this Court finding that the non-examination of the finger print expert despite lifting of finger prints, is a serious lapse had acquitted the accused.

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On the other hand, the learned Additional Public Prosecutor appearing for the respondent would submit that the petitioner was arrested on 14.01.2012, near Tiruchengode bus stand in the presence of P.W.3 and yet another person named Ragupathy and that the accused had given a confession statement voluntarily, based on which, the properties were recovered from his inner packet and thereby, both the Courts below had rightly convicted the petitioner.

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I have perused the materials and records placed before this Court.

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While analysing the evidence of P.W.6, it is the clear cut evidence of P.W.6 that he had called for the finer print expert and taken the finger prints found in the bureau from which, the jewels were stolen. The relevant portion is extracted here under :- @ehd; iftpuy; gjpt[ nuif vLg;gjw;F ifnuif epg[ziu tutiHj;J gPnuh kw;Wk; mykhhpapy; gjpe;Js;s tpuy; nuiffis gjpt [ bra;a eltof;iffs; vLj;Js;nsdh vd;why; vLj;Js;nsd;/@

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However, the finger print expert has neither been cited as a witness nor examined before the trial Court and the report was not marked.

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In the judgment render in Crl.A.No.961 of 2005 dated 24.03.2008 in the case of the State Vs. Gunaseelan @ Guna, this Court has held as follows :- "Admittedly, finger print expert was summoned at the scene of occurrence. It is very unfortunate that he was omitted to be examined so as to prove that the thumb impression and other impressions found at the place of occurrence particularly at the bureau, tallied with that of the accused and his associates. Further, the statement of the finger print expert recorded by the Inspector of Police on 17.10.2003 was not marked before court. There is no explanation forthcoming on the side of the prosecution for such serious lapse. That being so, the only presumption is that the so-called seizure and recoveries are the handwork of the police and nothing else. 10. In the light of the prevaricating circumstances pointed out by us, it would be grossly unsafe to rely on the evidence of the prosecution to hold against the respondent/accused. Unlike other cases where direct evidence is available, contradiction and embellishments in a case of circumstantial evidence would assume vital significance as the same would adversely affect the proseuciton case. As pointed out by us earlier, when the first circumstances itself had lost its veracity and reality, the second circumstances would in no way help the prosecution."

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In this case, as per the evidence of P.W.6, the finger print expert had been summoned to the scene of occurrence and he

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has also lifted the finger prints available in the bureau and almirah. However, strangely, the finger print expert has not been examined and the report of the finger print expert has not been marked as an exhibit and thereby it creates doubt over the prosecution case. Further, the evidence with regard to the recovery of articles at the Police Station after the period of 45 days of the date of occurrence, also seems to be highly artificial and unnatural. In view of the above, in the opinion of this Court, the prosecution has failed to prove its case beyond all reasonable doubts and it would be grossly unsafe to rely on the evidence of the prosecution to hold against the petitioner/accused. When the finger print expert has not been examined and the arrest, recovery and the seizure are doubtful, the petitioner is entitled for benefit of doubt and accordingly, he is entitled to be acquitted.

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In the result, this Criminal Revision is allowed. The Judgment, passed by the learned Sessions Mahila Judge (Fast Track) at Namakkal in C.A.No.37 of 2017 dated 07.11.2017, confirming the judgment of conviction and sentence passed by the learned Judicial Magistrate, Paramathy, dated 19.06.2017 in C.C.No. 82 of 2012 is set aside. The petitioner is acquitted of all the charges levelled against him. Bail bond, if any executed, shall stand cancelled and the fine amount, if any paid, shall be refunded to the petitioner. Consequently, connected miscellaneous petition is closed.

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rts Sd/Assistant Registrar(CS VIII) //True Copy// Sub Assistant Registrar To 1.The Judicial Magistrate Court, Paramathy, Namakkal District.

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The Chief Judicial Magistrate, Namakkal, (For information) 3.The Sessions Mahila Court (Fast Track), Namakkal.

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The The Inspector of Police, Nallur Police Station, Namakkal District.

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The Superintendent, Central Prison, Salem.

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The Public Prosecutor, High Court, Chennai.

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+1cc to M/.C.H.Vinobha Gandhi, Advocate, SR.No.89852

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Crl.RC.No.669 of 2019 & Crl.M.P.No.9295 of 2019

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Kak(31/10/2019)

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Chandru @ Ramachandran v. Inspector of Police

Case brief

What is this about?

What did the court decide?

Chandru @ Ramachandran v. Inspector of Police

Case brief

What is this about?

What did the court decide?

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