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					                                        [2008 (1) T.N.L.R. 329 (Mad)]
                                           MADRAS HIGH COURT
BEFORE:
              M. JEYAPAUL, J.
                                  RAVIKAPOOR                                                         ...Petitioner
                                                       Versus
THE STATE BY INSPECTOR OF POLICE,
                                 CENTRAL CRIME BRANCH AND ANOTHER                                   ...Respondents
             [Criminal Revision Case Nos. 871 and 901 of 2007, decided on 6 February, 2008]
                                                                                   th


        Criminal Procedure Code, 1973—Sections 451, 397 and 401—Interim custody—Of imported
Komori Offset Printing Machine— Provisions under Section 451, Cr.P.C. invoked—Application
moved by parties refused—Legality of—When the possession of the                       property is tinged with the
alleged crime, it would be travesty of justice to entrust the interim custody of the property to the
accused—Voluminous material to show that de facto complainant have paid the entire sale price of
the imported printing machine—Error                   committed in not entrusting the custody to one of the
parties—Costly imported printing machine will go waste if it is exposed to dust, open air and
sunlight—Order of trial Judge set aside—Trial Judge directed to entrust interim custody of the
imported printing machine seized, to the de facto complainant on executing a bond for a sum of Rs.
50,00,000/- with direction to the de facto complainant not to tamper with or alienate the same during
the course of trial.
                                                                                                 (Paras 10 to 13)
        Counsel.—Mr. R. Shanmugasundaram, Senior Counsel for Mr. Chandrasekaran, for the petitioner
in Cri. R.C. 871/2007; Mr. K. Ashokan, Senior Counsel for Mr. R. Karthikeyan, for the petitioner in
Cri.R.C.901/2007; Mr. A. Saravanan, Govt. Advocate (Cri. Side), Mr. N. Chandrasekaran for CBI, for the
respondents.
                                                    JUDGMENT
        M. JEYAPAUL, J.—Criminal Revision Case No.871 of 2007 is directed against the order passed in
M.P.No.944 of 2007 and Criminal Revision Case No.901 of 2007 is filed against the order passed in
M.P.No.920 of 2007 on the file of the Additional Chief Metropolitan Magistrate, Egmore, Chennai.
        2. The petitioner in Criminal Revision Case No. 871 of 2007 is an accused in Crime No. 207 of
2007 on the file of the Additional Chief Metropolitan Magistrate, Egmore, Chennai and the petitioner in the
other          criminal revision case is the de facto complainant therein. Both of them have claimed interim
custody of imported Komori Offset Printing Machine invoking the provision under Section 451 of the Code
of Criminal Procedure.
        3. The petitioner in Criminal Revision Case No.871 of 2007 would                contend that he imported
Komori Offset Printing Machine through Mayrose Machinery Limited as per invoice No. 4066 for a sum
of GBP 10,000/-. He has also paid the customs duty and cleared the goods. By virtue of improper search
warrant, the said machine was seized by the respondent police and therefore, the petitioner in Criminal
Revision Case No. 871 of 2007 is         entitled to interim custody, it is contended.
        4. The petitioner in Criminal Revision Case No.901 of 2007 would contend that the machine was
imported by him on the basis of an agreement clinched with River Graphics at London. The search warrant
was issued to seize the printing machine, as prima facie case was made out as against the accused. The
accused, who was found in possession of the printing machine, is not a lawful owner thereof and therefore,
he is not entitled to interim custody, the petitioner therein would further contend.
        5. The respondent police, through the counter filed by them, would inform this Court that the seized
property viz., Komori Printing Machine was originally booked by the de facto complainant Sivakumar at
London and the initial amount also was paid by him at London. The relevant documents were also
recovered by the investigating official which would go to indicate that the tax amount and other duties have
been paid by the accused at the request of the de facto complainant. The respondent police has collected
materials to show that the de facto complainant has made entire payment for the printing machine.
         6. The learned senior counsel appearing for the petitioner in criminal revision Case No.871 of 2007
would contend that the machine was recovered from the lawful custody of the accused. The documents
produced would disclose that the accused had parted with sufficient money for purchase of the imported
machine. The Trial Court has erred in dismissing the plea of the accused seeking interim custody.
         7. The learned senior counsel appearing for the petitioner in criminal revision case No. 901 of 2007
would vehemently contend that though the imported machine was found in possession of the accused at the
time when search was made based on the warrant issued by the competent Court, the Investigating Officer
has collected materials to show prima facie that the entire sale consideration for the imported machine was
paid by the de facto complainant at London. Having allegedly parted with a paltry amount               towards tax
and other duties for taking delivery of the printing machine, the accused has come out with a plea for
interim custody of the machine. The Trial Court has erred in accepting the plea of the accused that he had
parted with enormous amount for the purchase of the printing machine.
         8. Learned Government Advocate (Criminal Side) would bring to the notice of this Court that the
voluminous materials collected by the investigating agency would unerringly indicate that the de facto
complainant is the owner of the imported printing machine. He also referred to the communication
received from Stanferren Ferren Graphics, London that payment of the entire sale consideration was made
on behalf of the de facto complainant for the purchase of the subject imported printing machine.
         9. The Trial Court having found that both the de facto complainant and the accused have produced
materials to substantiate their respective claims over the imported machine seized from the accused,
ordered the investigating agency to retain the subject printing machine till it is decided
conclusively as to the ownership thereof at the fag end of the Trial and consequently dismissed the plea of
both the de fact complainant and the accused.
         10. It is found that the accused has produced documents to show that he has paid tax and other
duties payable on the imported printing machine. The amount alleged to have been parted with by the
accused to clear the tax and other duties is found to be paltry compared to the whopping sale price of the
imported machine. The de facto complainant has convincingly produced voluminous materials to show
that it was he who clinched the sale deal with a foreign company and imported the printing machine having
parted with the entire sale consideration. Of course, the imported printing machine was recovered from the
custody of the accused based on the warrant issued by the learned Additional Chief Metropolitan
Magistrate. As rightly pointed out by the learned senior counsel for the de facto complainant when the
possession of the property is tinged with the alleged crime, it would be         travesty of justice to entrust the
interim custody of the property to the accused.
         11. The investigating agency also has come out with voluminous             material to show that it was
only the de facto complainant who having paid the entire sale price for the imported printing machine,
appeared to be the owner thereof. The accused may have some stake over the printing machine on account
of the reported payment of tax and other duties when the        machine was taken delivery from the Shipyard.
But, it will be a miscarriage of justice if the interim custody is entrusted to the accused denying the right of
possession of the de facto complainant, who appears to have parted with the entire whopping sale
consideration for the printing machine in the          aftermath of the agreement for sale entered into with a
Company in foreign shore.
         12. The learned Additional Chief Metropolitan Magistrate has erred in not entrusting the custody to
one of the parties. The costly imported          printing machine will go waste if it is exposed to dust, open air
and sunlight. The damage that may be caused on account of such unfriendly environmental onslaught to
the precious and valuable machine would be incalculable.
         13. In view of the above, setting aside the order passed by the learned Additional Chief
Metropolitan Magistrate, Egmore, Chennai in Cri. M.P.No.920 of 2007, he is directed to entrust interim
custody of the         imported printing machine seized to the de facto complainant who is the petitioner in
criminal revision case No.901 of 2007 on executing a bond for a sum of Rs.50,00,000/-. The petitioner in
criminal revision case No. 901 of 2007 shall not tamper with or alienate the printing machine entrusted to
him for interim custody and he shall produce the same during the course of trial as and when required by
the trial Court. Consequently, criminal revision case No.901 of 2007 stands allowed and criminal revision
case No.871 of 2007 stands dismissed.
                                                                                           Ordered accordingly.
                                   [2008 (1) T.N.L.R. 332 (Mad) (MB)]
                                          MADRAS HIGH COURT
                                           (MADURAI BENCH)
BEFORE:
             M. CHOCKALINGAM AND S. PALANIVELU, JJ.
                           THANGARAJ AND OTHERS                                                 ...Appellants
                                                  Versus
                      STATE REP. BY INSPECTOR OF POLICE                                        ...Respondent
                 [Criminal Appeal (MD) No. 106 of 2007, decided on 4 th February, 2008]
       Indian Penal Code, 1860—Section 302/109—Murder—Deceased was attacked by appellant on
different parts of body—Brought to hospital where he succumbed to injuries—Two persons alleged
to have witnessed occurrence—One turned hostile—Presence of another doubtful at relevant time—
Statement of deceased appeared to have been recorded at behest of his father—Police who was 15
km. away from hospital reaching hospital within 20 minutes is doubtful—Case was registered under
Section 307 and later converted under Section 302 but nowhere it was stated by prosecution in
evidence—Prosecution case is that A-1 and A-2 attacked deceased whereas witness stating that A-1
and A-3 attacked deceased—In view of facts prosecution failed to prove its case beyond doubt—
Hence, conviction set aside—Appeal allowed.                                          (Paras 9 to 13)
       Counsel.—Mr. K. Chellapandiyan, Senior Counsel for Ms. G. Marimuthu, for the appellants 1 and
3; Mr. S. Manoharan, for 2nd appellant; Mr. P.N. Pandithurai Addl. Public Prosecutor, for the respondent.
                                             JUDGMENT
       M. CHOCKALINGAM, J.—Challenge is made to the judgment of the Principal Sessions Division,
Virudhunagar District at Srivilliputtur dated 31.1.2007 made in S.C.No. 97 of 2006 whereby the
appellants/A-1 and A-2 stood charged and tried for the charge under Section 302, IPC and A-3 under
Section 302, IPC read with 109, IPC and found guilty as per the charges and awarded imprisonment for
life.
        2. The short facts that are necessary for the disposal of this appeal can be stated as follows:
      (i)     P.W.1 is the native of Mugavur. The deceased Jawahar is            acquainted with P.W.1. A few
              days prior to Deepawali 2005, when P.W.1 accompanied by Jawahar warned A-2 that he
              should not spoil himself in his young age by having illicit intimacy with ladies and the same
              was witnessed by P.W.6, who intervened and pacified them.
     (ii)     On 2.12.2005, at about 9.15 p.m., when P.W.1 and the deceased proceeded to attend nature’s
              call, they went near the place of the occurrence where A-2 was found standing there. As
              usual, the deceased warned A-2 that “you do not get spoil yourself with ladies affair”. Being
              got provoked by the same, A-2 went to the village and brought A-1 and A-3 there. At the
              instigation of A-3, both A-1 and A-2 attacked the deceased on different parts of the body.
              Immediately, all the accused fled away from the place of occurrence. This was witnessed by
              P.W.1.
    (iii)     Severely injured Jawahar was taken to the Government Hospital, Rajapalayam where P.W.8
              doctor was on duty at about 10.45 p.m., on 2.12.2005, examined the said Jawahar and found
              injuries which were mentioned in the Accident Register Copy, which was marked as Ex.P-3.
              An intimation was given to Rajapalayam South Police Station. Then, a message was given
              over phone to Thalaviapuram Police Station. P.W.13, Sub Inspector of Police on receipt of the
              information, proceeded to the Government          Hospital, Rajapalayam, recorded the statement
              of the injured Jawahar at 11.25 p.m., on the same day, which was marked as Ex.P-4. He came
              back to the Police Station and on the strength of Ex.P-4, he registered a case in Crime No. 203
              of 2005 under Section 307, IPC.
    (iv)       P.W.13 took up investigation. On receipt of the death intimation of the deceased Jawahar, he
               altered Section 307 as one of 302, IPC and dispatched Express F.I.R. to the Court and to the
               higher officials. He proceeded to the place of occurrence, made an inspection and prepared
               an observation mahazer Ex.P-1 and a rough sketch Ex.P.13 in the presence of witnesses. He
               proceeded to the Government Rajaji Hospital, Madurai where the deceased died. He
               conducted inquest over the dead body of the deceased in the presence of witnesses and
               prepared an Inquest Report Ex.P-14. He issued a requisition Ex.P-15 to the Government
               Hospital Authorities for conducting post-mortem.
      (v)      P.W.9, doctor, attached to the Government Rajaji Hospital, Madurai, conducted autopsy on
               the dead body of the deceased Jawahar. He found injuries as described in the post-mortem
               certificate issued by him, which was marked as Ex.P-6. He opined that the deceased would
               appear to have died of multiple stab injuries.
     (vi)      P.W.13, Inspector of Police, on knowing that the accused had surrendered before the Judicial
               Magistrate, Madurai, he made a requisition for police custody of the accused and the same
               was ordered. On 15.12.2005, all these accused were interrogated by the police and during
               interrogation, A-1 and A-2 volunteered to give confessional statements in the presence of
               P.W.10 V.A.O and another witness. Their admissible part of the confessional statements
               were marked as Ex.P-8 and Ex.P-9 respectively. Pursuant to their confession, M.O.2 knife
               and M.O.3 knife were recovered from the accused under the cover of mahazer Ex.P-10. He
               sent the accused for judicial custody.
    (vii)      All the materials recovered from the place of occurrence and from the dead body of the
               deceased were sent to Forensic       Sciences Department for chemical analysis, which resulted
               in two reports viz., Chemical Analysis Report Ex.P-19 and Serological Report Ex.P-18.
   (viii)      On completion of the investigation, P.W.14, Inspector of Police filed a final report against the
               accused/appellants as per the charge. The case was committed to the Court of Sessions.
               Necessary charge was framed.
         3. In order to substantiate the charges levelled against the accused, the prosecution examined 14
witnesses and relied on 19 exhibits and 6 M.Os. On completion of the evidence on the side of the
prosecution, the accused were questioned under Section 313, Cr.P.C. on the incriminating circumstances
found in the evidence of the prosecution witnesses, which was flatly denied on the part of the accused. No
defence witness was examined. The trial Court after hearing the arguments advanced by either side and on
considering the materials available on record, took the view that the          prosecution has proved its case
beyond reasonable doubts and found the accused/appellants guilty of the charge and awarded life
imprisonment, which is the subject-matter of challenge before this Court.
         4. Advancing his arguments on behalf of the appellants, the learned senior counsel appearing for the
appellants, would submit as follows:—
       (i)     In the instant case, the occurrence had taken place, according to the prosecution, at about 9.15
               p.m., on 2.12.2005, for which, P.W.1 and P.W.2 were the occurrence witnesses. Out of these
               witnesses, P.W.2 has turned hostile and hence, the prosecution could not have the help of that
               part of evidence. Then, P.W.1 was the only solitary witness. There are so many circumstances
               pointing to the fact that P.W.1 could not have seen the occurrence at all.
      (ii)     According to the prosecution case, immediately, after the         occurrence, the deceased was
               brought to the Government        Hospital, Rajapalayam. He was semi-conscious and he could
               not speak in the hospital. Therefore, it was actually the statement of his father, who brought
               him to the hospital, was recorded and not the statement from the deceased.
     (iii)     Added further the learned senior counsel that according to P.W.1, he saw A-1 and A-3
               attacking the deceased whereas according to the prosecution, A-1 and A-2 attacked the
               deceased.
     (iv)      Further, insofar as the place of occurrence, according to the prosecution, it was just before
               Pandy Vinayagar Temple in the village. But, according to P.W.1, it was in the road at
               Chokkana-thanputthur.
     (v)         Further, insofar as the statement alleged to have been given by the deceased when he was in
                 the hospital, the learned senior counsel would submit that this statement would not have been
                 given by the deceased at all. According to the prosecution, the occurrence had taken place at
                 9.15 p.m. He was taken to the Government Hospital, Rajapalayam at about 10.45 p.m. where
                 he was examined by P.W.8 doctor. P.W.8 found injuries on the dead body of the deceased and
                 gave treatment. He issued an Accident Register copy Ex.P-3, which would clearly reveal that
                 he was semi-conscious at that time and he could not speak also. Hence, it is quite clear that
                 the statement of some one, who came to the Government Hospital, Rajapalayam was recorded
                 and the      statement would clearly reveal that the deceased was stabbed by only one known
                 person. Thus, there was no account for the other two accused. Further, according to the
                 doctor, P.W.8, at about 10.45 p.m., when the deceased was brought to the hospital, he gave an
                 intimation to the respondent police over phone. The distance between the respondent police
                 station and the Government Hospital, Rajapalayam is 15 Kms. Immediately after
                 assessing the seriousness of the injuries, the deceased was           referred to the Government
                 Hospital, Madurai. Therefore, there was no necessity for keeping the deceased in the
                 Government Hospital, Rajapalaym to enable the Sub-Inspector of Police P.W.12 to come and
                 record the statement of the deceased. Ex.P-4                 statement could not have come into
                 existence at about 11.15 p.m., since the injured Jawahar could not have revived the entire
                 incident within 20 minutes since he was semi-conscious and could not speak. Hence, the
                 statement Ex.P-4 alleged to have been given by the deceased is highly doubtful and
                 unbelievable.
     (vi)        Added further the learned counsel, the case was, originally,        registered under Section 307,
                 IPC. P.W.12, in his chief examination, has stated that the case was registered under Section
                 302, IPC and nowhere he has stated that it was the case originally registered under Section
                 307, IPC.
    (vii)        F.I.R one registered under Section 307, IPC and the F.I.R.            altered to Section 302, IPC
                 were reached the Judicial Magistrate on the very next day at 4.00 a.m.. It could clearly
                 indicate that the prosecution has no truth at all in its case.
   (viii)        There is no eye-witness at all in the instant case and hence, the prosecution wanted to rope the
                 accused in this case.
     (ix)        In such circumstances, the appellants are entitled for acquittal but the trial Court convicted
                 and sentenced them for life        imprisonment, which is not correct either factually or legally
                 and hence, the appellants have got to be acquitted in the hands of the Court.
         5. The Court heard the learned Additional Public Prosecutor on the above contentions.
         6. The Court paid its utmost attention to the submissions and made a thorough scrutiny on the entire
materials available on record.
         7. It is not in controversy that one Jawahar, who sustained injuries, in the incident that took place at
9.15 p.m., on 2.12.2005 was taken to the Government Hospital, Rajapalaym, where he was examined by
doctor P.W.8 and despite treatment, the said Jawahar succumbed to injuries. Following the inquest made by
P.W.13, Inspector of Police, the dead body of the            deceased was subjected to post-mortem. The doctor,
P.W.9, who conducted autopsy on the dead body of the deceased has opined that the deceased would
appear to have died of multiple stab injuries sustained. The fact that the deceased died out of homicidal
violence was never questioned by the appellants at any stage of the proceedings. Hence, without any
impediment, it can be factually recorded so.
         8. In order to substantiate the accusation that it was the appellants/ A-1 and A-2 attacked the
deceased on the instigation of 3rd accused, the prosecution has rested its case on the direct evidence of
P.W.1 and P.W.2 and also the statement Ex.P-4 alleged to have been given by the deceased Jawahar. Out
of these two witnesses, P.W.2 has turned hostile. The only direct evidence that is available for the
prosecution is P.W.1. It is well settled that Court can enter conviction on the evidence of solitary evidence
but it must be convincing and acceptable and free from any reasonable doubts. The Court, even after
applying the test, is not convinced to accept the        evidence of P.W.1.
        9. According to the prosecution, being provoked by the words, the deceased Jawahar, A-2 went to
the village and brought A-1 and A-3 and at the time of occurrence, on the instruction of A-3, A-1 and A-2
attacked the deceased but according to P.W.1, who claimed to be the eye-witness, A-1 and A-3 attacked
him on the instigation of A-2. In the course of evidence, he has not given any backdrop to overcome the
role of A-2. If viewed, it is highly doubtful whether P.W.1 could have been present at the place of
occurrence at all. It is an admitted fact that P.W.1 is a friend of the deceased. For the occurrence, he was
also a witness. Naturally, his conduct should be either to rescue the said Jawahar from the occurrence or
prevent such occurrence or immediately, he should have taken the injured Jawahar to hospital but he had
not done so. According to the Accident Register Copy Ex.P-3, when the deceased Jawahar was brought to
the hospital, he was semi-conscious and he could not speak and the statement was recorded from his father,
who brought him to the hospital. Thus, it would be quite clear that PW.1 could not have been present in the
place of occurrence.
        10. Added circumstances against the prosecution are that, in the       instant case, P.W.8 doctor gave
an intimation to Rajapalayam South Police initially and then gave message over phone to the respondent
police where P.W.12 was on duty. On receiving message, he rushed over to the Government Hospital,
Rajapalaym, which was located 15 kms away from the              respondent police station. According to P.W.8
doctor, at about 10.45 p.m., when examined, the injured Jawahar was semi-conscious and could not speak.
P.W.12 would claim that he came to hospital and recorded the statement of the injured Jawahar at 11.15
p.m. Within half an hour, it is highly doubtful whether a person who was under semi-conscious, would
revive his entire memory and give full narration as to the occurrence as found in Ex.P-4.
        11. Added further, within a short span of time i.e. with 20 minutes, PW.12, who got the message
from hospital, went to the Government Hospital, Rajapalayam, which is 15 kms away from the respondent
police station, and recorded the statement of the deceased Jawahar is also doubtful.
        12. According to the prosecution, P.W.12 originally, registered a case under Section 307 and
subsequently, on the death of the deceased, converted to Section 302, IPC but P.W.12 at the time of chief
examination, nowhere has stated that there was originally a case under Section 307, IPC and at no point of
time, he has spoken about the case for Section 307, IPC. Both the F.I.Rs. in the case registered under
Section 307, IPC and altered F.I.R. for Section 302, IPC has reached the Magistrate at 4.00 p.m., on the
very next day. Therefore, it is quite clear that in order to fortify the prosecution case, it was shown as if
originally a case was registered for Section 307, IPC and as if subsequently, it was altered for Section 302,
IPC.
        13. In the instant case, even assuming that the statement of Ex.P-1 was true, according to Ex.P-3
Accident Register copy issued by P.W.8 doctor, the deceased was attacked by a known person whereas
according to the prosecution, A-1 and A-2 attacked the deceased and according to P.W.1, A-1 and A-3
attacked the deceased. Therefore, the prosecution could not fix liability on any one or any of the accused
in the absence of a clear case. Under the circumstances, it is highly unsafe to fix liability on any one or
any of the accused/appellants. In the considered opinion of the Court, the            prosecution has failed to
prove its case beyond reasonable doubts. Therefore, the appellants are entitled for acquittal.
        14. In the result, the judgment of the trial Court is set aside and the appellants are acquitted of the
charges. The appellants/A-1 and A-3 are directed to be released forthwith unless they are required in
connection with any other case. It is reported that the appellant/A-2 is on bail. The bail bond executed by
A-2 stands cancelled.
                                                                                               Appeal allowed.

                                       [2008 (1) T.N.L.R. 338 (Mad)]
                                          MADRAS HIGH COURT
BEFORE:
             K. CHANDRU, J.
                                  K. RAJI                                                         ...Petitioner
                                        Versus
THE DEPUTY COMMISSIONER OF POLICE,
                         ARMED RESERVE PUDUPET, CHENNAI                                          ...Respondent
                       [Writ Petition No. 33344 of 2007, decided on 29th January, 2008]
        Constitution of India, 1950—Article 226—Writ jurisdiction— Invoking of—For a direction to
defer the disciplinary action pending the investigation in crime case on the file of Central Crime
Branch—Charges framed in the disciplinary action as well as in the criminal case are different,
Court is not persuaded to restrain the disciplinary action being proceeded with—Petition
dismissed—Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, Rule 3 (b).
                                                                                             (Paras 3 and 6)
        Case law.—1988 (4) SCC 319; AIR 1999 SC 1416; 2006 (1) CTC 689 (DB)—reversed by 2008 (1)
MLJ 37.
        Counsel.—Mr. R. Sankarasubbu, for the petitioner; Mrs. Bhavani Subbaroyan, AGP, for the
respondent.
                                                  JUDGMENT
        K. CHANDRU, J.—Heard Mr. R. Sankarasubbu, learned counsel appearing for the petitioner and
Mrs. Bhavani Subbaroyan, learned Additional Government Pleader taking notice for the respondent and
perused the records.
        2. The petitioner in the present writ petition is seeking to challenge the departmental enquiry
proceedings initiated against him and also                appointment of Enquiry Officer by the impugned
proceedings dated 14.8.2007 issued by the Deputy Commissioner, Armed Reserve, Chennai-8.
        3. A criminal case was registered against him in F.I.R. No. 27 of 2007 dated 14.7.2007. The
allegation against him was that while he was escorting certain accused from the Puzhal Prison to
Government General Hospital, one accused, by name, Sundararajan, s/o Chinnasamy, was allowed to
escape. He was also placed under suspension pending enquiry by an order dated 16.7.2007 stating that his
conduct in allowing the accused involved in a Narcotic case was reprehensible. Followed by this, a charge
memo was also framed under Rule 3(b) of the Tamil Nadu Police Subordinate Service             (Discipline and
Appeal) Rules [for short, ‘TNPSS Rules’]. While the criminal case relates to the complicity of the
petitioner in allowing an accused with serious charges to escape, the charge memo was issued for his
negligence towards his work. It was thereafter, an Enquiry Officer has been appointed for which the
petitioner wrote a letter seeking the respondent to stall the enquiry proceedings pending the criminal action.
As he did not get any reply, the present writ petition has been filed seeking for a direction to defer the
disciplinary action pending the investigation in Crime No. 27 of 2007 on the file of the Central Crime
Branch, Egmore, Chennai.
        4. Mr. Sankarasubbu, learned counsel appearing for the petitioner placed strong reliance upon the
following two decisions, viz., (1) 1988 (4) SCC 319, Kusheshwar Dubey v. M/s. Bharat Coking Coal Ltd.
and others and AIR 1999 SC 1416, Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and another. He
also brought to the notice of this Court the Division Bench Judgment of this Court in Indian Overseas
Bank and another v. P. Ganesan and others reported in 2006 (1) CTC 689, wherein the above two cases
have been referred and followed. Therefore, on the strength of this, the learned counsel argued that the
disciplinary action must be stayed.
        5. After hearing the arguments of the learned counsel for the parties, orders were reserved by this
Court. But, after the orders were reserved, it is noted that the Division Bench judgment relied on by the
learned counsel for the petitioner has been reversed by the Supreme Court in Indian         Overseas Bank v.
P. Ganesan and others reported in 2008 (1) M.L.J. 37, and the passages found in paragraphs 22 and 23 may
be usefully extracted:
        Para 22: “The High Court, unfortunately, although noticed some of the binding precedents of the
Court failed to apply the law in its proper perspective. The High Court was not correct in its view in
concluding that the stay of the departmental proceedings should be granted in the peculiar facts and
circumstances of the case without analyzing and applying the principle of law evolved in the
aforementioned decisions. It, therefore, misdirected itself in law. What was necessary to be noticed by the
High Court was not only existence of identical facts and the evidence in the matter, it was also     required
to take into consideration the question as to whether the charges levelled against the delinquent officers,
both in the criminal case as also the disciplinary proceedings, were same. Furthermore, it was obligatory on
the part of the High Court to arrive at a finding that the non-staying (sic) of the disciplinary proceedings
shall not only prejudice the delinquent officers but also the matter involves a complicated question of law.
        Para 23: The standard of proof in a disciplinary proceedings and that in a criminal trial is different.
If there are additional charges against the delinquent officers including the charges of damaging the
property belonging to the bank which was not the subject-matter of allegations in a criminal case, the
departmental proceedings should not have been stayed.”
        6. In the light of the above and since the charges framed in the    disciplinary action as well as in
the criminal case are different, this Court is not persuaded to restrain the disciplinary action being
proceeded with. Hence, the writ petition stands dismissed. No costs. Connected miscellaneous petition is
closed.
                                                                                     Writ petition dismissed.

                                    [2008 (1) T.N.L.R. 340 (Mad) (MB)]
                                           MADRAS HIGH COURT
                                             (MADURAI BENCH)
BEFORE:
            M. CHOCKALINGAM AND K.K. SASIDHARAN, JJ.
STATE INSPECTOR OF POLICE, SAIRPURAM
                         POLICE STATION, TUTICORIN                                                   ...Appellant
                                                    Versus
                     DHANASANKAR AND OTHERS                                                        ...Respondents
                 [Criminal Appeal (MD) No. 911 of 2000, decided on 16 February, 2008]
                                                                           th


       Criminal Procedure Code, 1973—Section 378—Indian Penal Code, 1860—Sections 147, 148,
341 read with 149 and 302 read with 149—Acquittal of charge—Appeal against—Appreciation of
evidence—Occurrence was witnessed by three prosecution witnesses—Two declared hostile—
Solitary evidence of the wife of the deceased—A related witness and uncorroborated testimony—She
sustained injury but unable to state by whom such injury was caused—Accused six in number—All
the accused were known to her but she gave F.I.R. only against three persons and mentioned the
other three persons were not known—Till investigation those three persons were not nabbed—Not
produced before the Court—Night occurrence—Availability of light not disclosed—Witnessing the
occurrence is highly doubtful—Inordinate delay in reaching the F.I.R. before the Court—Casts a
doubt in the case of prosecution—Accused persons were armed with aruval and ran away from the
place of occurrence—Investigation found only sticks at the place of occurrence—Highly unnatural—
Conviction on the basis of uncorroborated testimony of wife of      deceased, is quite unsafe—Order
of acquittal needs no interference—Appeal dismissed.
(Paras 9 to 18)
       Counsel.—Mr. C. Daniel Manoharan, Addl. Public Prosecutor, for the appellant; Mr. S.
Doraisamy, for the respondents.
                                            Important Point
       Inordinate delay in reaching the F.I.R. before the Court automatically casts a doubt in the case of
prosecution.
                                                JUDGMENT
       M. CHOCKALINGAM, J.—The State appeal is challenging the judgment of the Principal Sessions
Division, Tuticorin dated 20.4.2000 made in S.C.No.50 of 1996, whereby the respondents 3 in number
stood charged, tried under the following provisions of law:
       1st Charge : A.1 and A.2 under Section 148, IPC A.3 under Section 147, IPC,
       2nd charge: A.1, A.2 and A.3 under Section 341 read with 149, IPC,
       3rd charge: A.1, A.2 and A.3 under Section 302 read with 149, IPC.
       and on trial, they were found not guilty and they were acquitted of all the charges.
       2. The short facts that are necessary for the disposal of this appeal can be stated thus:
      (i)    P.W.1 is the wife of the deceased. She is the native of Manjal-neerkayal. All the accused
             were not only known to the family of P.W.1 but also related to them. They had a long
             pending dispute over an immovable property. A judicial proceedings was also            pending
             before a Civil Court at Tuticorin and the same was ended in favour of the family of P.W.1. 5
             years prior to the occurrence, the first respondent severed electric service connection and
             pursuant to which a complaint was given to the Sairpuram Police Station and they also
             enquired and he was warned.
     (ii)    On 23.11.1994 at about 7.00 p.m., when P.W.1, P.W.3 and P.W.4 were standing nearby
             P.W.1’s house, the husband of PW.1 was coming. At that time, three respondents along with
             other three persons came near to the house of P.W.1. 1st respondent and the 2nd respondent
             were armed with aruvals and sticks. The 1st respondent telling that “he was responsible for
             filing a case”       finish him off and so uttering the words, the first respondent/accused
             attacked the deceased on his head with a stick. The         deceased fell down. The second
             respondent also attacked the deceased on different parts of the body with a stick. He also
             attacked P.W.1 with a stick when intervened. She also sustained injuries. The occurrence was
             witnessed by all the above witnesses.
    (iii)    P.W.1 and the deceased were taken to the Government Hospital, Tuticorin at about 11.20 p.m.
             on 23.11.1994, the date of         occurrence. P.W.2 doctor, who was on duty, examining the
             deceased, declared that the deceased died. He issued Accident Register Ex.P-5. He sent an
             intimation Ex.P-5 to the outpost Tuticorin Government Hospital.
    (iv)     P.W.2 also examined P.W.1 at about 11.30 p.m., on the date of occurrence and gave
             treatment. He issued an wound certificates Ex.P-2.
     (v)     On receipt of the intimation from the hospital, Head Constable, attached to the out-post,
             proceeded to the Government Hospital and recorded a statement from P.W.1.
    (vi)     P.W.19, the Sub-Inspector of Police, who was on duty in the respondent police station, on
             receipt of Ex.P-1 complaint through outpost police, registered a case in Crime No.253/1994
             under Sections 147, 148, 341, 323, 307 and 302, IPC. Express F.I.R.          Ex-19 along with
             Ex.P-1 was sent to the Court and to the higher officials.
   (vii)     On receipt of F.I.R. Copy, P.W.21, the Inspector of Police of the Circle, took up investigation
             at about 7.00 a.m., on 24.11.1994, and proceeded to the place of occurrence, made an
             inspection in the presence of witnesses and prepared an observation mahazar Ex.P-13 and
             also a rough sketch Ex.P-21. He recovered sticks M.O.11 (series), blood stained rod M.O.12,
             blue colour chappals with blood stains M.O.13 (series), blood stained rubber chappals
             M.O.14 (Series), blood stained mud M.O.14, sample earth M.O.16 and other material objects
             under the cover of Ex.P-22. He             recorded the witnesses available at the place of
             occurrence. Then, he proceeded to the Government Hospital, Tuticorin and             conducted
             inquest on the dead body of the deceased at mortuary in the presence of witnesses and
             panchayatdars at about 9.45 a.m. on 24.11.1994. He prepared an inquest report, which was
             marked as Ex.P.23.
   (viii)    The dead body of the deceased was subjected to post-mortem by PW.2 doctor on the
             requisition made by P.W.19. P.W.2 also     issued post-mortem certificate Ex.P-20 wherein
             he has opined that the deceased would appear to have died of shock and haemorrhage due to
             the multiple injuries sustained.
    (ix)     Pending investigation, the investigator came to know that      respondents 1 to 3 surrendered
             before the Judicial Magistrate, Tiruvotriyur, Chennai. An dismissed.
     (x)     All the material objects recovered from the place of occurrence and from the dead body of the
             deceased were subjected to chemical analysis by the Forensic Sciences Department, which
             resulted in Ex.P-8 and Ex.P-9.
    (xi)     On completion of the investigation, a final report was filed against the respondents/accused.
        3. Thereafter, the case was committed to Court of Sessions and      necessary charges were framed
against the respondents/accused as stated above.
      4. In order to substantiate the charges, the prosecution has examined 21 witnesses, marked 25
documents and 18 MOs.
       5. On completion of the evidence on the side of the prosecution, all the accused were questioned
under Section 313, Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution
witnesses and they denied the same as false. Neither defence witness was examined nor any document was
marked.
       6. The trial Court, after hearing the arguments advanced by either side and on scrutiny of the
materials, came to the conclusion that the    prosecution had failed to prove the case beyond reasonable
doubts and has acquitted all the accused. Hence, this appeal at the instance of the State.
          7. Mr.C.Daniel Manoharan, learned Additional Public Prosecutor appearing for the State, inter
alia, would submit that—
        (i)      In the instant case, the occurrence had taken place at 7.00 p.m., on 23.11.1994, just near the
                 house of P.W.1, who is the wife of the deceased. At the time of occurrence, P.W.1, P.W.3 and
                 P.W.4 were present and they have spoken in one voice narrating the incident in which these
                 three accused named and the other three accused, who were actually along with them, had
                 attacked the deceased. The same was found mentioned even in the F.I.R., which is the earliest
                 document Ex.P-19.
       (ii)      In the incident, P.W.1 also sustained injuries. Out of the three eye-witnesses, P.W.1 is the
                 injured witness. The Court had no reason to disbelieve or reject the testimony of P.W.1.
                 Thus, the lower Court should not have rejected such evidence.
      (iii)      According to the defence, there was light at the time of occurrence. The accused and the
                 prosecution witnesses were living in the same street and hence they were acquainted. The
                 theory of no light can not be given much importance.
      (iv)       The lower Court has unnecessarily given weight for the delay caused in the F.I.R. in reaching
                 the Court. The occurrence had taken place at 7.00 p.m. on 23.11.1994, while the report was
                 actually received by the respondent police at about 6.00 a.m. on 24.11.1994. Immediately, the
                 case was registered and F.I.R. was sent to the lower Court. Even according to the lower Court,
                 this delay was explained by the prosecution by stating that, PW.1 was taken to the
                 Government Hospital, Tuticorin at about 11.30 p.m. on 23.11.2004 and within a short span of
                 time i.e. at 1.20 a.m. on 24.11.2004, an intimation was given to the outpost police and one
                 Head Constable, attached to the outpost, proceeded to the              Government Hospital and
                 recorded the statement of P.W.1 and reached the respondent police at about 6.00 a.m. on the
                 same day. At this juncture, it is pertinent to note that, the respondent police station is situated
                 44 kms away from the Judicial Magistrate Court, Tuticorin. Under the circumstances, this
                 delay would in no way affect the prosecution case.
       (v)       Merely because some of the witnesses have turned hostile that would not mean that the
                 evidence of the witnesses should not be believed.
      (vi)       A.1 and A.2 had an aruval and caused injuries cannot be            disbelieved.
     (vii)       With reference to the occurrence place, the lower Court has shifted it, which would reveal if
                 the evidence is carefully perused.
    (viii)       Apart from this, medical evidence was in full corroboration of the ocular testimony.
      (ix)       In the instant case, the investigation had been done properly and the entire truth was placed
                 before the Court. However, the       lower Court, without appreciating the evidence in a proper
                 perspective, rendered a judgment of acquittal. Hence, it has got to be set aside and the
                 accused should be found guilty by this Court.
          8. The Court heard Mr. S. Doraisamy, learned counsel for the respondents on the above contentions.
The Court paid its anxious consideration on the rival submissions made and made a thorough scrutiny of
the entire materials.
          9. As could be seen, the gist of the prosecution was that, the respondents 3 in number along with 3
others armed with weapons attacked the husband of P.W.1 at 7.00 p.m. on 23.11.1994. In that transaction,
P.W.1        intervened and she also sustained injuries. This occurrence was witnessed by P.W.1, P.W.3 and
P.W.4. Out of whom, P.W.3 and PW.4 turned hostile. Hence, the only evidence available was that of
P.W.1.
        10. P.W.1 is the wife of the deceased and also her evidence is solitary evidence. Hence, the
evidence of P.W.1, who is a relative of the deceased, an uncorroborated testimony has got to be scrutinised
carefully. P.W.1, in the course of transaction, was attacked and sustained injuries but she is unable to state
by whom such injury was caused. According to P.W.1, all the accused were already known to her but when
she gave the First Information Report, she gave the names of only three persons and mentioned that the
other three persons were not known. Till the end of the investigation, the other three persons were not
nabbed and they were not produced before the Court. This occurrence had taken place at 7.00 p.m., and she
was unable to identify by whom that injury was caused and thus, she was unable to account for the same.
        11. Since the occurrence took place during night hours, one would expect the witnesses to say that
light was available. In the instant case, even the observation mahazar and Sketch did not speak about any
availability of the light. Thus, it is highly doubtful whether P.W.1 even assuming to have been in the place
of occurrence, could not have seen the occurrence at all.
        12. Further, the lower Court has clearly pointed out that the place of occurrence, according to the
prosecution case was actually near Pillaiyar Koil Street but according to the witness, it had taken place in
the North Street and these streets are situated at a distance of one furlong to each other. It would clearly
indicate that the place of occurrence could not be as fixed by P.W.1. Hence, it casts a doubt whether P.W.1
could have been in the place of occurrence at all and could have seen the occurrence as put forth by her.
        13. Admittedly, PW.1 was taken to the Government Hospital, Tuticorin immediately after the
occurrence and the doctor P.W.2 who gave treatment to her, gave intimation to the out post police. The
Head Constable, who proceeded to the Government Hospital and recorded the statement of P.W.1, has not
been examined before the lower Court.
        14. Apart from this, there is inordinate delay in F.I.R. reaching the Court. The occurrence had taken
place at 7.00 p.m., on 23.11.1994 but the report was given to the respondent police at 6.00 a.m., on
24.11.1994. Though the Judicial Magistrate Court was only 44 kms distance from the respondent police
station, the F.I.R reached the Judicial Magistrate 6 hours later in a case of murder, even when as per F.I.R,
the earliest document, it was a case of murder. This inordinate delay, in the opinion of the Court,
automatically casts a doubt in the case of the prosecution.
        15. Further, in the instant case, names of 3 persons were mentioned by P.W.1 and other 3 names
were not known. This would go to show that there was possibility for the improvement of the case.
        16. Added circumstances against the prosecution is that P.W.1 is unable to account for the injuries
sustained by her or by the deceased.
        17. According to P.W.1, A.1 and A.2 were armed with aruval, which is highly unnatural. Neither
A.1 nor A.2 used aruval at the time of occurrence. As it could be seen from the evidence of P.W.1, the
accused ran away from the place of occurrence. The investigator, at the time of observation, found only
sticks in the place of occurrence.
        18. Under the circumstances, relying on an uncorroborated testimony of P.W.1, it is quite unsafe to
order conviction in a given case like this. Hence, the Court is of the considered opinion not to deviate from
the        judgment of acquittal rendered by the lower Court. The judgment of the lower Court is affirmed.
Hence, the appeal made by the State has necessarily got to be dismissed and accordingly, dismissed.
                                                                                           Appeal dismissed.



                                   [2008 (1) T.N.L.R. 345 (Mad) (MB)]
                                          MADRAS HIGH COURT
                                            (MADURAI BENCH)
BEFORE:
             M. CHOCKALINGAM AND K.K. SASIDHARAN, JJ.
                     MARIMUTHU AND GNANARAJ                                                       ...Appellant
                                                  Versus
STATE THROUGH BY THE INSPECTOR OF POLICE,
                      THALAVAIPURAM POLICE STATION, VIRUDHUNAGAR                              ...Respondent
                 [Criminal Appeal (MD) No. 562 of 2007, decided on 16 February, 2008]
                                                                         th


        Indian Penal Code, 1860—Sections 302 and 309—Conviction and sentence under—Legality
of—Appreciation of evidence—Wife of the accused found dead in her house—Medical evidence—
Deceased died of burn injuries and the injury found on the skull—Circumstantial evidence—
Accused seen coming out of the house at or about the time of occurrence with burn injuries—Injuries
explained—Extra-judicial confession after an interval of 4 months before two persons—Highly
improbable and unbelievable—Interval of four months would be sufficient to reject the evidence of
extra-judicial confession—          Statement of post-mortem doctor—A sudden fall would be sufficient
to cause injury on the head—Even the Revenue Divisional Officer who conducted the enquiry has not
even whispered anything about the act of the accused—Prosecution failed to prove the case either by
placing the circumstances necessary or proving the same, pointing to the complicity of the offender—
Trial Judge failed to consider the factual or legal positions—Conviction and sentence set aside—
Appeal allowed.                                                (Paras 6 to 12)
        Counsel.—Mr. C. Meenakshi Ramaprabhu, for the appellant; Mr. C. Daniel Manoharan, APP, for
the respondent.
                                               Important Point
        Extra-judicial confession was given to two persons nearly after an interval of four months. Such an
act of the accused coming back to his native place and making such a confession to two persons is highly
improbable and unbelievable.
                                                  JUDGMENT
        M. CHOCKALINGAM, J.—This appeal has arisen from the judgment of the Principal Sessions
Division, Srivilliputhur made in S.C.No.91 of 2006, whereby the sole accused/appellant stood charged
under Sections 302 and 309, IPC and on trial, he was found guilty on both charges and awarded life
imprisonment and to pay a fine of Rs.1000/- in default to undergo 6 months’ RI under Section 302, IPC and
6 months’ S.I. under Section 309, IPC.
        2. The short facts necessary for the disposal of this appeal can be stated as follows:
           (a)     P.W.8 is the mother of the deceased Umamaheswari. One Palchamy is the husband of
                   P.W.8. Originally, they are the native of Murambu, which is situated near Rajapalayam.
                   Following the love affairs between the deceased and the accused, their marriage was
                   arranged. At the time of       marriage, the accused was employed in Bangalore and the
                   deceased also went to Bangalore and they lived together for some time. Since the accused
                   did not have sufficient income in Bangalore, the father of the deceased got employment
                   for the accused and also for the deceased in the Mill at Cholapuram. Accordingly, both
                   were living at Cholapuram in a rental house, which belonged to P.W.10. They got only
                   one daughter, who was in ailment and hence for the operation and for medical treatment,
                   they were in need of money. The deceased made a request to her master for loan, but this
                   was not liked by the accused/appellant. Apart from that, there were occasions, in which
                   he suspected her fidelity.
           (b)     On the date of occurrence, namely on 27.7.2005, in the          morning hours, P.W.2 came
                   out of the house to take water from the public pipe. At that time, he heard a distressing
                   cry from the house of the accused. He also found the accused coming out of the house
                   with burn injuries. P.W.2 got into the house to witness the dead body of the deceased.
                   When P.W.4, the doctor attached to the Government Hospital, Rajapalayam, was in duty
                   at about 9.00 a.m., the accused appeared and informed him that in the morning hours
                   when his wife         attempted to self immolate herself, he intervened and went to her
                   rescue and at that time, he sustained injuries. P.W.4 medically examined him and found
                   40% burn injuries in the body of the accused. The Accident Register copy in that
                   regard was marked as Ex.P-4.
          (c)     At about 6.30 a.m. P.W.1, the Village Administrative Officer of Therkuvenganallur, was
                  informed that the deceased was found dead in her house. Immediately, he went over to
                  the place of occurrence, verified the same and then, proceeded to the respondent police
                  station. He gave Ex.P-1, the complaint to P.W.16, the Inspector of Police. On the
                  strength of the same, a case came to be registered in Crime No. 127 of 2005 under
                  Section 174, Cr.P.C. and the F.I.R. Ex.P-12 was sent to the Court.
          (d)     P.W.12, the Revenue Divisional Officer of the said division, on receipt of the copy of the
                  F.I.R., proceeded to the spot, made an enquiry and also recorded the statement of the
                  witnesses. He also made an inquest in the presence of the witnesses and panchayatdars.
                  He gave Ex.P-9, the report, wherein he has recorded a finding that she might have been
                  murdered on account of dowry demand. Following the same, the dead body was sent to
                  the hospital for the purpose of autopsy.
          (e)     P.W.3, the doctor attached to the Government Hospital, Rajapalayam, on receipt of the
                  requisition, has conducted        post-mortem on the dead body of the deceased. He has
                  issued Ex.P-2, the post-mortem certificate, wherein he has opined that the deceased
                  would appear to have died 24 to 32 hours prior to post-mortem due to 100% burn injuries
                  and also the injury found on the skull.
          (f)     P.W.15, the Deputy Superintendent of Police of the said division took up investigation,
                  on receipt of the copy of the F.I.R. He proceeded to the spot and made an inspection in
                  the presence of the witnesses. He prepared Ex.P.7, the observation mahazar and Ex.P-
                  11, the rough sketch. He recovered the material objects from the place of occurrence
                  under a cover of mahazar. Since no dowry demand is noticed by him, he handed over the
                  entire records to the Inspector concerned for further investigation.
          (g)     P.W.16, the Inspector of Police, took up the matter for           further investigation. He
                  proceeded with the investigation. The case was altered to Sections 302 and 309, IPC. The
                  amended F.I.R. Ex.P-13, was despatched to the Court.
          (h)      On 18.11.2005, the accused, who was all along in Thiruppur, came to Murambu and
                   made a confession about the occurrence to P.Ws.7 and 14. On 19.11.2005, P.W.16
                   arrested the accused at the bus stop. When the accused voluntarily gave confessional
                   statement, it was also recorded in the presence of the witnesses. Then, the accused was
                   sent for judicial remand. Ex.P-16 is the Hyoid Bone report. Ex.P-5 is the               viscera
                   report. On completion of the investigation, the       Investigating Officer has filed the final
                   report.
        3. The case was committed to the Court of sessions and necessary charges were framed. In order to
substantiate the charges, the prosecution examined 16 witnesses and relied on 16 exhibits and 5 M.Os. On
completion of the evidence on the side of the prosecution, the accused was questioned under Section 313,
Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses. The accused
flatly denied them as false. No defence witness was examined. On hearing the submissions made and also
scrutiny of the materials available, the trial Court took the view that the prosecution has proved the case
beyond reasonable doubt and entered a judgment of conviction and sentence, which is the subject-matter
of challenge before this Court.
        4. Advancing arguments on behalf of the appellant, Mr. C. Meenakshi Ramaprabhu, the learned
counsel has made the following submissions:
           (a)     In the instant case, the prosecution had no direct evidence to offer and it rested its case
                   only on circumstantial evidence.          P.W.2, who was the neighbour, found the
                   accused/appellant coming out of the house in or about the time of occurrence with burn
                   injuries. Further, it is to be pointed out that it is admitted by the accused that while his
                   wife attempted to commit suicide, in order to save her, he took efforts, but he sustained
                   injuries and thus, he came out of the house with burn injuries and hence the evidence of
                   P.W.2 cannot be taken to be in favour of the prosecution.
           (b)     The other circumstance is the extra-judicial confession, which was alleged to have been
                   given by the accused to P.Ws.7 and 14 on 19.11.2005. It is pertinent to point out that the
                    occurrence has taken place on 27.7.2005, but the extra-             judicial confession was
                    alleged to have been made on 19.11.2005. It is further to be pointed out that these two
                    witnesses, to whom extra-judicial confession was made, did not produce the accused
                    before the police and hence there was a long interval. Thus, it would be nothing, but these
                    two witnesses have been introduced in order to shape and strengthen the prosecution
                    case, but in vain.
            (c)     Further, according to the police, he was arrested and his confessional statement was
                    recorded, but it would not lead to any inference or any decision or conclusion and under
                    these circumstances, it was of no legal consequence at all. Further, according to the post-
                    mortem doctor, death would have         occurred out of the injuries found on the skull and
                    also due to 100% burn injuries. In the cross-examination, he has clearly pointed out that
                    the injury on the skull would have been occurred due to the fall. There was no fracture
                    found. The case of prosecution was that the accused attacked her with the iron rod and
                    caused injuries, but no corresponding injury was found. Not even a suggestion was put to
                    the doctor by the prosecution. Hence, the medical evidence did not support the
                    prosecution case. Thus, the prosecution has not placed or proved any circumstances
                    pointing to the guilt of the accused and hence the accused/appellant is entitled for
                    acquittal. The lower Court has not considered the same, but has passed the judgment of
                    conviction and sentence erroneously.
         5. The Court heard the learned Additional Public Prosecutor on the above contentions and has paid
its anxious consideration on the submissions made.
         6. In the instant case, it is not in controversy that the wife of the accused was found dead in her
house at about 6.30 a.m. on 27.7.2005. When it was brought to the notice of the police by P.W.1, V.A.O., a
case came to be registered under Section 174, Cr.P.C. The inquest was made by the                     concerned
Revenue Divisional Officer and the dead body was subjected to post-mortem by P.W.3, the doctor, who has
issued Ex.P-2, the post-mortem certificate, wherein he has opined that the deceased would appear to have
died of burn injuries and also the injury found on the skull and thus, there is no doubt that she died out of
those injuries. The same is also not disputed by the appellant and hence, it has got to be recorded so.
         7. In order to substantiate the charges levelled against the appellant, the prosecution had no direct
evidence to offer. It has placed a few circumstances and has made an attempt to prove the same. The Court
is mindful of caution made by the Apex Court and also it is also a settled proposition of law that in a given
case like this when the prosecution rested its case on circumstantial evidence, all the circumstances
necessary must be placed and proved and they should make a complete chain even without a snap, pointing
to the hypotheses that except the accused no one could have committed the offence. The Court is afraid, if
this test is applied, whether the circumstances could be taken as proved.
         8. The first circumstance relied on by the prosecution is P.W.2, who saw the accused coming out of
the house in or about the time of occurrence. This fact is not disputed by the accused. According to the
prosecution, it was the accused who set her ablaze after attacking her with the iron rod. According to the
accused, she set fire herself in an attempt to commit suicide and he attempted to rescue her and in that
process, he sustained injuries and with the burn injuries, he came out of the house and proceeded to the
hospital. According to P.W.2, he saw the accused coming outside of the house with burn injuries. Thus, the
evidence of P.W.2 in no way would be helpful to the prosecution case, pointing to the guilt of the accused.
         9. The second circumstance relied on by the prosecution is the extra-judicial confession alleged to
have been made by the appellant to P.Ws.7 and 14. Admittedly, the occurrence has taken place on
27.7.2005. According to the prosecution, the extra-judicial confession was given to P.Ws.7 and 14 only on
19.11.2005, i.e. nearly after an interval of 4 months. Such an act of the accused coming back to his native
place and making such a confession to two persons is highly improbable and unbelievable. Thus, it casts a
doubt whether these two witnesses could have been introduced to strengthen the case, if possible. The
Court must look the attendant circumstance and hence the interval of four months would be sufficient to
reject that part of the evidence in respect of extra-judicial confession.
         10. The next circumstance relied on by the prosecution was the       medical opinion given by P.W.3,
the Doctor, who has conducted post-mortem. According to him, the death would have occurred due to the
injuries on skull and also due to 100% burn injuries. The specific case of the prosecution was that he
attacked his wife with the iron rod and caused injuries on skull. But there is no direct evidence. Since the
prosecution rested its case on circumstantial evidence, the Court must see whether such circumstances are
available. Even the post-mortem doctor has clearly stated in the cross-      examination that a sudden fall
would be sufficient to cause such injury on the head. On the contrary, not even one question was put to the
post-mortem doctor to prove the fact that the injury that was found on the skull of the deceased could have
been caused by the attack with iron rod. Hence, the prosecution has not proved the fact. On the contrary,
the defence made an attempt to disprove the same.
        11. Added circumstance was that originally, the case was registered under Section 174, Cr.P.C. Had
it been true that P.W.2, who has actually seen the accused coming out of the house with burn injuries, said
so to the police, the police personnel would have fixed the accused there itself and there was no need to
register the case under Section 174, Cr.P.C. But, the case was altered to Section 302, IPC after a long lapse
of time. Even, the Revenue Divisional Officer, who made an enquiry, has not even whispered anything
about the act of the accused. All would go to show that the prosecution has not proved the case either by
placing the circumstances necessary or proving the same, pointing to the complicity of the offender. The
lower Court has not considered either factual or legal positions. Hence, it is a fit case where the
accused/appellant is entitled for acquittal.
        12. In the result, the criminal appeal is allowed, setting aside the    judgment of conviction and
sentence imposed on the appellant by the trial Court. The appellant is acquitted of the charges levelled
against him and he is directed to be released forthwith unless his presence is required in        connection
with any other case. The fine amount if any paid by him shall be refunded to.
                                                                                            Appeal allowed.



                                      [2008 (1) T.N.L.R. 351 (Mad)]
                                         MADRAS HIGH COURT
BEFORE:
             M. JEYAPAUL, J.
                     ALAGESAN AND 6 OTHERS                                                      ...Petitioners
                                                 Versus
STATE BY THE INSPECTOR OF POLICE,
                        PATHIRIVEDU POLICE STATION                                           ...Respondent
       [Criminal Revision Case No. 211 of 2008 and M.P. No. 1 of 2008, decided on 3 March, 2008]
                                                                                    rd


        (A) Criminal Procedure Code, 1973—Section 91—Summoning of documents—Application
for, moved by the accused persons in a case of major offence of murder—Dismissal of—Legality—
Section 91, Cr.P.C. does not confer an absolute right on the accused to seek for production of any
documents—Burden on the person who prays for, to satisfy the Court that the production of such
document is material for arriving at a just decision in the case—Unless petitioners         disclose as to
why the document is required, the Court will not be in a position to satisfy itself as to the necessity or
the desirability of the production of such documents in the custody of any other person—Petitioners
have not made out a case for summoning these documents for the purpose of the trial of the case—
Conclusion of trial Court—Just and proper—No interference warranted.
                                                                                     (Paras 9, 10 and 19)
        (B) Criminal trial—Summoning of document—Statement under Section 107, Cr.P.C.—When
the document is not with the police, the question of summoning such document from the police does
not arise.
                                                                                                 (Para 17)
        Case law.—1999 SCC (Cri) 611; 2001 Cri LJ 569; 2001 Cri LJ 3918; 1990 LW (Cri) 305.
        Counsel.—Mr. S. Ananthanarayanan, for the petitioners; Mr. A. Saravanan, Government Advocate
(Cri. Side), for the respondent.
                                                 Important Point
         Unless the accused demonstrates that the documents sought for are relevant and necessary to serve
the ends of justice the Court cannot exercise its discretion under Section 91, Cr.P.C. in favour of the
accused.
                                                    JUDGMENT
         M. JEYAPAUL, J.—The revision is filed challenging the order of                dismissal passed by the
learned Principal Sessions Judge, Thiruvallur in Cri.M.P.No.1940 of 2007 filed under Section 91 of the
Code of Criminal Procedure.
         2. The petitioners are the accused in a case of major offence of     murder. During the pendency of
the trial, the petitioners filed an application under Section 91 of the Code of Criminal Procedure to summon
as many as five documents from the respondent.
         3. It is relevant to refer to the averment in the petition filed under Section 91 of the Code of
Criminal Procedure and the counter filed by the respondent.
         4. The petitioners have contended in the aforesaid petition seeking to summon the case diary of the
present case, case diary of the counter case, general diary of the present case, the proceedings under
Section 107 of the Code of Criminal Procedure including the statement of one Geja Thomas, the copy of
the accident register of the deceased Thirupathi and the case sheet of A-2, A-3, A-4 and one Parimala that if
the aforesaid records are kept in the custody of the respondent police, there is every chance for alteration
and manipulation of the records. The custody of the aforesaid documents is just and necessary for trial, it
has been further contended by the petitioners in the petition filed by them.
         5. In the counter, the respondent police has contended that the     petition has been filed at a belated
stage. The case of murder which was committed in the year 2006 is still pending disposal. The present
petition was filed after examination of the material witnesses. The vexatious petition has been filed just to
delay the criminal proceedings with a view to defeat the ends of justice. The petitioners are not entitled to
summon the case diaries of the present case and the counter case and the general diary of the present case.
As far as the proceedings under Section 107 of the Code of Criminal Procedure initiated by the Executive
Magistrate is concerned, the petitioners would have been supplied with those documents by the
Executive Magistrate. As far as the copy of the accident register of the           deceased Thirupathi and the
wound certificate and case sheet of A2, A3, A4 and Parimala, the same have already been supplied even
during the year 2003 under Section 207 of the Code of Criminal Procedure by the committal Court.
Therefore, the respondent would contend that the petition is not sustainable.
         6. The trial Court, having observed that the petitioners have not put forth any justifiable reason to
satisfy the Court to summon those documents under Section 91 of the Code of Criminal Procedure, chose
to dismiss the petition filed under Section 91 of the Code of Criminal Procedure.
         7. Learned counsel appearing for the petitioners would submit that the petitioners cannot be directed
to disclose the defence set up by them in the petition filed under Section 91 of the Code of Criminal
Procedure. Only during the course of pendency of trial, the petitioners have filed the petition under Section
91 of the Code of Criminal Procedure. Further, the case diary relating to the counter case, the proceedings
initiated earlier by the           executive Magistrate under Section 107 of the Code of Criminal Procedure,
the accident register copy of the deceased accused and the wound certificate and case sheet of A-2, A-3, A-
4 and Parimala are very much relevant for the purpose of strengthening the case of the defence. The
petitioners should be given an opportunity to contradict the versions of the witnesses examined on the side
of the prosecution with that of their statements given before the executive Magistrate. Therefore, he would
submit that the trial Court has totally ignored the plea of the petitioners and erred in dismissing the
petition depriving the right of the petitioners to defend them properly with the documents available with
the respondent.
         8. The learned Government Advocate (Criminal Side) would vehemently submit that the trial is
pending for quite a long time. No reason has been assigned in the petition praying to send for the
documents from the custody of the respondent. The petitioners are bound to satisfy the trial Court that the
documents sought for are very much necessary for the disposal of the criminal case. The petitioners have
come out with this untenable petition at a belated stage seeking to send for even the documents which had
been supplied to the petitioners under Section 207 of the Code of Criminal          Procedure by the committal
Court. He would lastly submit that the petitioners are not entitled to the case diary of the present case.
        9. As per Section 91 of the Code of Criminal Procedure, when the Court considers that production
of any document is necessary or desirable for the purpose of trial of a criminal case, such Court may issue
summons for the production of the document sought for. The Court has to judicially               consider whether
production of the document is relevant for the purpose of trial. Section 91 of the Code of Criminal
Procedure does not confer an           absolute right on the accused to seek for production of any documents.
The party who prays for issuance of summons for production of document has to necessarily demonstrate
before the Court that production of such document is material for arriving at a just decision in the case. If
the petitioners fail to establish that a particular document is necessary and desirable to be          summoned,
then the Court shall not summon the document.
        10. The petitioners need not disclose the defence he is going to set up through the documents
summoned. But, they have to state the circumstances which necessitated summoning the documents for the
just decision of the criminal case. Unless the petitioners disclose as to why the document is required, the
Court will not be in a position to satisfy itself as to the     necessity or the desirability of the production of
such document in the       custody of any other person.
        11. Section 172(3) of the Code of Criminal Procedure imposes a bar in summoning the case diary
by the accused. But, as far as summoning of the case diary relating to yet another criminal case, the
Honourable Supreme Court in State of Kerala v. Babau, 1999 SCC (Cri.) 611, has held that if the Court
comes to the conclusion that the production of a case diary of another case is necessary or desirable, then
the Court is entitled to summon such a case diary of another case under Section 91 of the Code of Criminal
Procedure de hors the provision of Section 172 of the Code of Criminal             Procedure for the purpose of
using the statements made in the said case for contradicting a witness. Here in the instant case, the
petitioners have also prayed for summoning production of case diary of the present case which is not
permissible under law.
        12. As far as the case diary in the counter case and the general diary of this case are concerned, of
course, the petitioners can invoke the provision of Section 91 of the Code of Criminal Procedure seeking
production of those documents, but, the petitioners have to satisfy the Court that those         documents are
necessary or desirable for the trial of the case. It is found that the petition filed under Section 91 of the
Code of Criminal Procedure is completely bereft of any particulars reflecting the necessity or desirability of
production of those documents for the purpose of trial of this case. A very vague averment is found to the
effect that production of such documents would bring truth to light and the custody of the same is necessary
for the trial. Such averments are not sufficient to convince the Court to arrive at a conclusion that those
documents are necessary for trial.
        13. The Andhra Pradesh High Court in S.Srinivasan v. Deccan              Petroleum Ltd., 2001 Cri.L.J.
569, has held that the Trial Court has to       consider the nature of the documents called for and the nature
of allegations levelled against the accused to determine whether the documents have any bearing on the
question involved in the case.
        14. That was a case where the accused has come out with an averment in the petition filed under
Section 91 of the Code of Criminal Procedure that the recoveries relied upon by the prosecution were not at
all genuine. No such specific averment is found in the application filed under Section 91 of the Code of
Criminal Procedure by the petitioners herein.
        15. The Delhi High Court in Pawan Duggal v. State, 2001 Cri.L.J. 3918, has observed that the
documents which the accused cannot procure for the purpose of putting his defence have to be
requisitioned by invoking Section 91 of the Code, if the Court is satisfied that those documents are
necessary or desirable for the purpose of trial. Here, in this case, as already pointed out by this Court,
there is no averment which reflects the necessity or        desirability of production of the documents sought
for.
        16. This Court in Karuppathal v. Palanisami Gounder and others, 1990 LW (Cri.) 305, has held
that
          “As long as the Court is satisfied that the document or thing sought for, has a bearing or is relevant
          to the case and that production or inspection will be necessary or desirable or will serve the ends
          of justice, the discretion will have to be exercised even at a stage before the accused enters into
         defence. The document or thing called for must have some relation or connection with the subject
         matter of investigation, enquiry or trial or other proceeding or some link in the chain of evidence.”
        Therefore, unless the accused demonstrates that the documents sought for are relevant and
necessary to serve the ends of justice, the Court cannot exercise its discretion under Section 91 of the Code
in favour of the accused/ petitioner.
        17. As far as the statement under Section 107 of the Code of Criminal Procedure in Na.Ka.
No.7630/03/A-2, dated 4.9.2003 is concerned, it is found that the petitioners were parties to such
proceedings. It is not the case of the respondent that those documents are lying with them. These
documents would have been circulated to the petitioners. Even if these documents have not been
circulated, the petitioners can apply for those documents and obtain the same. When the document is not
with the respondent police, the question of summoning such document from the respondent police does not
arise.
        18. Coming to the copy of the accident register of the deceased              accused Thirupathi and the
would certificate and case sheet of A2, A3, A4 and Parimala, the prosecution has taken a stand that those
documents have already been furnished to the accused by the committal Court under Section 207 of the
Code of Criminal Procedure. Even otherwise, the Court finds that the petitioners have come out with a
very vague averment in the petition seeking production of those documents. No particulars have been
furnished facilitating the trial Court to arrive at a conclusion that those documents warrant summoning on
account of their relevancy to the case and the       necessity to meet the ends of justice.
        19. The Court finds that the Trial Court has rightly come to the         conclusion that the petitioners
have not made out a case for summoning those documents for the purpose of the trial of the case. There is
no illegality or impropriety in the order passed by the learned Trial Judge. Therefore, the petition fails and
the same stands dismissed. The connected               Miscellaneous Petition also stands dismissed.
                                                                                             Petition dismissed.



                                       [2008 (1) T.N.L.R. 355 (Mad)]
                                          MADRAS HIGH COURT
BEFORE :
             S. PALANIVELU, J.
                                                R. KUMAR AND ANOTHER                              …Petitioners
                                                   Versus
                                         G. RAJAGOPAL                                         ...Respondent
              [Criminal Original Petition No.27470 of 2007, decided on 23 November, 2007]
                                                                          rd


        Criminal Procedure Code, 1973—Sections 482 and 190—Indian Penal Code, 1860—Sections
384, 406, 420, 422, 423, 424, 448, 477-A and 506—Quashing of proceeding—Allegation against
petitioner of fraudulently obtaining power of attorney and thereafter executing sale deed in favour of
his wife causing huge loss of respondent—Petition for quashing proceeding filed on two grounds viz.,
prima facie case is not made out and Court has no territorial jurisdiciton—Held, from material on
record it cannot be said that prima facie case is not made out—Further Magistrate of first class has
territorial      jurisdiction to take cognizance, no matter offence committed within territorial
jurisdiction or not—After taking cognizance Court may decide as to Court which has jurisdiction to
enquire into or try offence—Hence, complaint cannot be quashed—Petition dismissed.
                                                                                     (Paras 4, 7, 8 and 12)
        Case law.—1996 SCC (Cri) 820; 1999 Cr.LJ 4325—relied on.
        Counsel.—Dr. G. Krishnamurthy, for the petitioner; Mr. P. V. Sanjeevi, for the respondent.
                                                 JUDGMENT
        S. PALANIVELU, J.—This petition has been filed, praying to call for the records in C.C.No.11910 of
2007 on the file of III Metropolitan Magistrate, George Town, Chennai, and to quash the same.
         2. Petitioners are the accused in the Calendar Case, which is taken on file, on a private complaint
lodged by the respondent/complainant, alleging that the petitioners are liable for prosecution under Sections
384, 406, 420, 422, 423, 424, 448, 477-A and 506, IPC.
         3. The case of the respondent is that he applied for a housing loan with HDFC Bank and was
offered a sum of Rs.9.00 lakhs, which was limited to Rs.8.50 lakhs, and the said amount was received by
him in instalments, by mortgaging his property, sprawling to an extent of 1965 sq.ft., comprised in Survey
No.758/2, Madambakkam Village, Tambaram Taluk, Kancheepuram District. It is his further case that the
first petitioner approached him, representing that he was a builder, engaged in the construction of
houses/buildings to various persons; on that score, at the first instance, the respondent paid a sum of
Rs.3.00 lakhs to the first petitioner, for which the latter agreed to construct a house, but he delayed to
construct the house for the respondent; subsequently, the first petitioner fraudulently persuaded the
respondent to agree for discharging of loan by him on behalf of the respondent in instalments; so saying,
the first petitioner obtained General Power of Attorney on 11.06.2005 from the respondent, with an
authorisation to move the HDFC Bank, for further course of business; on the strength of the said Power of
Attorney deed, the first petitioner executed a sale deed in favour of his wife, namely, second petitioner,
with respect to the house which he constructed in the respondent’s land; the first petitioner also obtained
an undated cheque for a sum of Rs.3.00 lakhs from the respondent and, added to the above, from the very
inception of the nexus with the first petitioner, the respondent was totally deceived and cheated, with a
mala fide and criminal intention, to cause huge loss and that the first petitioner fraudulently        obtained all
the documents, which were entrusted to HDFC Bank, towards loan.
         4. The core of contention of the learned counsel for the petitioners is that the III Metropolitan
Magistrate, George Town, Chennai, has no               territorial jurisdiction over the matter and the allegations
in the complaint have been made on mere surmises and conjectures and that on an apprehension of a
complaint under Section 138 of the Negotiable Instruments Act, the respondent has hastened to file a false
private complaint, which is non est in the eye of law.
         5. Per contra, learned counsel for the respondent would submit that as far as the contention with
regard to criminal liability of the petitioners/      accused is concerned, the Court has to see, whether the
complaint prima facie makes out any cognizable offence against the petitioners and while the said exercise
is undertaken, the Court is not expected to go deep into the matter and discuss the genuineness of the
allegations found therein and that even at the time of framing of charges, the Court is not expected to probe
the case with reference to the merits of the case and also as to whether the offence could be proved by the
prosecution.
         6. In support of the said submission, learned counsel for the respondent garnered support from a
Full Bench decision of the Supreme Court in State of Maharashtra and others v. Som Nath Thapa and
others, 1996 SCC (Cri) 820, wherein it was observed as under :
          “So if on the basis of materials on record, a Court could come to the conclusion that commission
          of the offence is a probable consequence, a case for framing of charge exists. To put it differently,
          if the Court were to think that the accused might have committed the offence it can frame the
          charge, though for conviction the conclusion is           required to be that the accused has committed
          the offence. It is        apparent that at the stage of framing of a charge, probative value of the
          materials on record cannot be gone into; the materials brought on record by the prosecution has to
          be accepted as true at that stage.”
         7. Following the dictum laid down in the above said decision, it must be held that the Court, while
taking cognizance of an offence or at the time of framing charges, need not take pains to foresee the
consequences of the matter, but the materials of prosecution to show the prima facie case alone.
         8. As far as the averments contained in the present complaint are concerned, they prima facie show
the making out of a cognizable offence against the petitioners. Hence, on that score, the question of
quashing the complaint does not arise.
         9. The next limb of contention of the learned counsel for the petitioners is, with reference to the
territorial jurisdiction of the III Metropolitan Magistrate Court, Chennai. In this context, the learned counsel
would        submit that no cause of action has arisen within the territorial jurisdiction of the said Court and
the said Court has overstepped its powers to accept a complaint, which could not at all be maintained
before it and taking          cognizance of the matter on the basis of a basically illegal complaint would be a
classical instance of injustice.
        10. Repelling the said contention, learned counsel for the respondent would submit that even
assuming that the matter in question does not fall within the territorial jurisdiction, the Magistrate has got
power to take congnizance of the same.
        11. I find substance in the said submission of the learned counsel for the respondent, in view of a
decision of the Supreme Court. The principle with regard to this legal proposition is contained in Trisuns
Chemical        Industry v. Rajesh Agarwal and others, 1999 Cri. L.J. 4325, in the following terms :
          “It cannot be overlooked that the said provisions do not trammel the powers of any Court to take
          cognizance of the offence. Section 193 imposes a restriction on the Court of Session to take
          cognizance of any offence as a Court of original jurisdiction. But, “any” Magistrate of the First
          Class has the power to take cognizance of any offence, no matter that the offence was committed
          within his jurisdiction or not. The only restriction contained in Section 190 is that the power to
          take cognizance is “subject to the provisions of this Chapter”. There are 9 Sections in Chapter
          XIV most of which contain one or other restriction imposed on the power of a First Class
          Magistrate in taking cognizance of an offence. But none of them incorporates any curtailment
          on such powers in relation to territorial barrier. The jurisdictional aspect becomes relevant only
          when the question of enquiry or trial arises. It is, therefore, a fallacious thinking that only a
          Magistrate having jurisdiction to try the case has the power to take cognizance of the offence. If
          he is a Magistrate of the First Class, his power to take cognizance is not impaired by territorial
          restrictions. After taking cognizance, he may have to decide as to the Court which has jurisdiction
          to enquire into or try the offence and that situation would reach only during the post cognizance
          stage and not earlier.”
        12. Guided by the ratio laid down in the decision aforementioned, it must be observed that even if
the III Metropolitan Magistrate, Chennai, could not exercise territorial jurisdiction over the matter, the law
does not prevent him from taking cognizance of the matter. If he finds that he does not have territorial
jurisdiction, he may act thereon, in accordance with law, on a subsequent occasion. To put it in other
words, after taking cognizance of the matter also, during the subsequent proceedings of the case, he may
decide the issue with regard to territorial jurisdiction and, on that ground, there would be no quashment of
the complaint.
        13. In the light of the well settled legal principles, there could be no quashment of the proceedings
in C.C.No.11910 of 2007 on the file of III Metropolitan Magistrate, George Town, Chennai. The
petitioners may project their legal contentions before the trial Court and get the remedy.
        14. Criminal original petition is dismissed. Consequently, the connected Criminal M.P.Nos.1 and 2
of 2007 are also dismissed.
                                                                                            Petition dismissed.



                                       [2008 (1) T.N.L.R. 359 (Mad)]
                                          MADRAS HIGH COURT
BEFORE :
             S. PALANIVELU, J.
                                         A. RAJASINGH AND OTHERS                                 …Petitioners
                                                  Versus
THE FOOD INSPECTOR, LAKKAMPATTY
                                  PANCHAYAT, ERODE DISTRICT                             ...Respondent
            [Criminal Original Petition No.16672 of 2004, decided on 23 November, 2007]
                                                                       rd


       Criminal Procedure Code, 1973—Section 482—Prevention of Food Adulteration Act, 1954—
Section 16(1) (a) read with Section 2(ix) (k)—Prevention of Food Adulteration Rules, 1955—Rule
32(i)—      Quashing of proceeding—Prosecution for misbranding as mentioned on package best
within four months instead of best before certain months from manufacture or packaging—On
package date of        manufacture is mentioned and it is also mentioned ‘best before         certain
months’—Held by using this word only consumer cannot be misled—Hence, complaint liable to be
quashed—Petition allowed.
                                                                                          (Paras 13, 15 and 16)
         Case law.—2007 (1) LW (Cri.) 367—relied on; Cri. O.P. 15161 of 2004, decided on 9.6.2007—
referred.
         Counsel.—Mr. S. R. Rajagopal, for the petitioners; Mr. A. Saravanan, Government Advocate (Cri.
Side), for the respondent.
                                                   JUDGMENT
         S. PALANIVELU, J.—This petition has been filed, praying to quash the complaint in C.C.No.246 of
2004 on the file of Judicial Magistrate No.I, Gobichettipalayam, Erode District.
         2. Fourth petitioner is a manufacturer of wheat flour, under the name and style “Naga Whole Wheat
Atta”. It is stated in the petition that the product is of high quality and has earned goodwill in the market,
which is known for its huge demand. The respondent filed a complaint in C.C.No.246 of 2004, alleging
that he obtained samples of fourth petitioner’s product, by name, Naga Whole Wheat Atta, and despatched
the same for examination to Food Analysis Laboratory, King Institute Campus, Guindy, Chennai, on
10.12.2002 and the result disclosed that there was no adulteration. However, the complaint goes to the
effect that packet has been misbranded as “Best within four months” instead of “Best before ....... months
from manufacture or packaging”.
         3. The gravamen of the complaint is that the above said misbranding is in violation of Rule 32 (i) of
Prevention of Food Adulteration Rules,1955, and the declaration would deceive the attention of the
consumers and that only if the printing on the cover contains the brand as mentioned in the Rules, it would
be in accordance with law. Hence, it is stated that the manufacturer of the food product in question has
committed an offence under Section 7 (ii) read with Section 16 (1) (a) (i) read with Section 2 (ix) (k) of
the Prevention of Food Adulteration Act,1954, (in short, ‘the Act’) and Rule 32 (i) of the Prevention of
Food Adulteration Rules,1955, (in short, ‘the Rules’).
         4. In the petition, the petitioners, namely, accused 1 to 4, have                 mentioned the other
circumstances, which would vitiate the process adopted by the Food Inspector, to show that the complaint
does not stand legally.
         5. The first ground adduced, assailing the process, is that the         complainant has failed to give
notice in writing, as adumbrated in Section 11 (1) (A) of the Act, which is mandatory; hence, initiation of
prosecution against the petitioners does not conform to the legal procedure, and, as such, it would fall to the
ground. It is further stated that failure on the part of the complainant to exercise his rights to enquire
whether the vendor purchased the said package from an authorised dealer or received the same from the
manufacturer has not been verified, before launching the prosecution.
         6. Secondly, it is mentioned that under Section 11 (1), the provision requires the samples to be
divided into three parts and thereafter only, marking, sealing and fastening up each part are to be done and
that the statute requires obtaining signature of the person from whom the sample is taken, but the complaint
does not narrate the particulars and, hence, it is a sheer violation of the mandatory provision, as
aforementioned.
         7. Lastly, it is contended that under Section 11 (c) (i), the sample must be despatched for analysis to
the Public Analyst under intimation to the Local (Health) Authority and, thereafter, the remaining two parts
have to be sent to the local (health) authority, for the purposes of Section 11 (2) and Section 13 (2-A) and
(3-E), but, in this case, all the samples were sent to the Public Analyst, King Institute Campus, Guindy.
         8. On the strength of above said factual backdrop of circumstances, the petitioners would attack the
process, mentioned in the complaint.
         9. As far as the above said grounds are concerned, whether the settled and codified procedures have
been violated or not, could be gone into only after appreciation of oral evidence in that regard by the trial
Court, after examination of the parties. The niceties of the matter could be legally       discussed only on the
factual background, which would be obtained at the time of examination of witnesses and that stage has not
reached so far. The grievance of the petitioners cannot be countenanced at this stage, since this Court is not
sitting on appraisal of oral testimonies, which are yet to be recorded by the trial Court.
         10. Under the circumstances, the observation of this Court would be that only after recording of oral
evidence of the parties to the case, the finding, as to whether the prescribed procedures in the Act and the
Rules have been complied with, shall be rendered by the trial Court.
         11. Adverting to the legal scenario, learned counsel for the petitioners would very much stress his
contention that the respondent has interpreted the terms in Rule 32 (i) of the Rules in a wrong manner,
which would not get any support from the well settled legal principles.
         12. In this context, it is beneficial to extract Rule 32 of the Rules, which goes thus :
           “Rule 32:Package of food to carry a label.—Every package of food shall carry a label and unless
           otherwise provided in these rules, there shall be specified on every label—
       (i)      the month and year in capital letters up to which the product is best for consumption in the
                following manner, namely—
           “Best Before....Months and Year”
                           or
           “Best Before....Months from packing”
                           or
           “Best Before....Months from Manufacture”
                           or
           “Best Before up to Month and year...”
           (for the period up to)
                           or
           “Best before within..... Months and inclusive from the date of packaging/manufacture of 1st
           September
           Note: Blank be filled up) 2001 :]
         13. Learned counsel for the petitioners relied upon a decision of this Court in T.Prabhu & another
v. The State, 2007 (1) LW (Cri.) 367, wherein, on the discussion taken up in Rule 32, it was held that the
language “best before .... months”, could in no way be misled for the term “best before within twelve
months”. The operative portion of the said decision is as         follows :
           “Though it is specifically instructed in the Rules that “within” must be omitted after 01.09.2001,
           merely by adding such word, the             customers are not misled or misdirected. I do not find any
           difference otherwise in the meaning conveyed. The date of packing has been specifically
           mentioned as 26.05.2004. By using the language “best before ..... months”, the meaning to be
           conveyed is, the customers must use it before twelve months” and such meaning has been
           conveyed by this language “best before within twelve months”. Prior to 1.9.2001, it was the
           approved language by the Department. Under such circumstances, I do not find any merit in the
           prosecution for misbranding. Hence, the proceedings pending against the petitioners in
           S.T.C.No.1403 of 2005 on the file of the learned Judicial             Magistrate No.VII, Coimbatore,
           are liable to be quashed and it is, accordingly, quashed....”
         14. In a recent unreported decision of the Madurai Bench of this Court in Criminal O.P.No.15161 of
2004, dated 09.06.2007, the above decision has been referred to and a learned single Judge has refused to
take a different view from the one taken in the above said ruling.
         15. Even though the terminology found in both the terms differ in appearance, actually, no
consumer would definitely be misguided, if he happens to see the term “best within four months.” Even
if the words “best before four months from manufacture or packaging” are not there, and, instead, the
words “best within four months” are there, it will not, in any way, mislead the consumer and, by no stretch
of imagination, it could be termed that the product has been misbranded. It is to be seen that the product is
not adulterated and only an allegation of misbranding is there.
         16. As stated supra, it is to be held that no question of misbranding has arisen in this case and the
mere change of words would in no way              mislead the usage of the product among the public. Hence, it is
futile to contend that the product has been misbranded. As the subject in question has been repeatedly
enlightened by this Court as to the employment of words on the packets, it must be concluded that there is
no misbranding in this case, in legal parlance.
        17. In the light of the observations made above, the complaint in C.C.No.246 of 2004 on the file of
Judicial Magistrate No.I, Gobichettipalayam, is liable to be quashed, which is, accordingly, quashed. As
such, this petition is allowed. Consequently, the connected Criminal M.P.No.5965 of 2004 is closed.
                                                                                         Petition allowed.



                                   [2008 (1) T.N.L.R. 362 (Mad) (MB)]
                                          MADRAS HIGH COURT
                                           (MADURAI-BENCH)
BEFORE:
             G. RAJASURIA, J.
                                          K.K. RAMESH                                           ...Petitioner
                                                 Versus
                                    STATE                                              ...Respondent
 [Criminal O.P. (MD) Nos. 10194 and 9735 of 2007 and M.P. (MD) Nos. 1 and 2 of 2007, decided on 1 st
                                          October, 2007]
         Criminal Procedure Code, 1973—Section 482—Indian Penal Code, 1860—Sections 341, 324,
354, 506 (1), 420 and 468—Women                 Harassment (Prohibition) Act—Section 4—Quashing of
proceeding—Charge under various sections—Defence taken that Court below erred in not relying
expert opinion on handwriting which denies petitioner’s case—Held, except legal issue no other
matter can be considered under Section 482, Cr.P.C.—Matter regarding expert opinion under
Section 468 is a legal question hence proceeding quashed—Regarding other matters question is based
on facts—Hence, proceeding not to be quashed under other sections—Petition partly allowed.
                                                                                     (Paras 12, 13 and 14)
         Counsel.—Mr. R. Ramachandran, for the petitioner; Mr. Siva Ayyappan, Government Advocate
(Cri. Side), for the respondents.
                                                   JUDGMENT
         G. RAJASURIA, J.—Cri.O.P (MD)No.10194 of 2007 is focussed to call for the records pertaining to
the order dated 05.09.2007 passed in Cr.R.P.No.44 of 2007 on the file of the learned Principal District and
Sessions Judge, Madurai, confirming the order dated 22.05.2007 passed in Cr.M.P.No.5802 of 2006 on the
file of the learned Judicial Magistrate No.I, Madurai and set aside the same.
           2. Cri.O.P(MD)No.9735 of 2007 is focussed to call for the records pertaining to the order dated
05.09.2007 passed in Cr.R.P.No.45 of 2007 on the file of the learned Principal District and Sessions Judge,
Madurai,         confirming the order dated 22.05.2007 passed in Cr.M.P.No.5282 of 2006 on the file of the
learned Judicial Magistrate No.I, Madurai and set aside the same.
         3. A re’sume’ of facts absolutely necessary and germane for the        disposal of these petitions
would run thus:
         Initially, the police registered the case in Cr.No.833 of 2003 under Sections 341, 323, 354 and
506(2), I.P.C. Subsequently, it appears, at the instance of the accused, who is the petitioner herein, the
learned Sessions Judge directed investigation into the crime by C.B.C.I.D which after         investigation,
laid the police report as against the accused for the offence punishable under Sections 341, 324, 354,
506(1), 420, 468, 471, I.P.C and Section 4 of Women Harassment (Prohibition) Act. Thereupon, the
learned Magistrate took it on file as C.C.No.236 of 2005. Whereupon, the petitioner filed Cr.M.P.No.5282
of 2006 for discharge. However, the learned Magistrate dismissed the petition and framed charges for the
offences punishable under Sections 341, 324, 354, 506(1), 420, 468, 471, I.P.C and Section 4 of Women
Harassment (Prohibition) Act. It also appears, one other Cr.M.P. No.5802 of 2006 was filed under Section
91, Cr.P.C even before framing of charge for summoning certain documents and that was also dismissed.
        4. Being aggrieved by and dissatisfied with, those orders, the              petitioner filed these two
criminal original petitions, so to say, one as against the order of dismissal of the discharge petition and
another as against the dismissal of the petition under Section 91, Cr.P.C, on the main grounds inter alia
thus:
        The trial Court without considering the factual as well as the legal issues, passed orders dismissing
the petition. The trial Court also failed to consider the enmity of the de facto complainant as against the
petitioner and also the ill-will of the police towards him. It is also the grievance of the petitioner that he
being a social welfare worker and Human Rights activist, the police with the help of Vatchala, the de facto
complainant, engineered this false case; and that without considering the hand-writing expert’s        opinion,
which is in favour of the accused, the Court has gone to the extent of framing charges for the offence of
forgery also.
        5. Heard both sides.
        6. The learned counsel for the petitioner would reiterate the grounds as found set out supra.
        7. The learned Government Advocate (Criminal Side) would counter such arguments that all the
allegations/grounds set out by the petitioner could be considered only at the time of trial and this Court
while exercising the power under Section 482, Cr.P.C cannot look into all these aspects.
        8. At the outset itself, I would like to observe that this Court while exercising the power under
Section 482, Cr.P.C cannot ponder over the factual issues based on bare allegations. However, if there are
issues based on pure legal question of law involved, certainly it would be looked into.
        9. The nitty-gritty, the gist and kernel of the complaint of the de facto complainant, Vatchala is to
the effect that the petitioner herein used to move with the defacto complainant as family friend and well-
wisher; he taking undue advantage of such close relationship, intended to grab the money from them and
under the pretext of hushing up the complaints as against Vatchala and her family, he obtained amounts as
‘hush money’ payable to the police and other authorities; as such, the petitioner cheated her to the tune of
Rs.10,000/- (Rupees ten thousand only) and the petitioner also obtained Rs.2,000/- (Rupees two thousand
only) from her under the pretext of making arrangements for her to purchase a land etc. According to the
police, through one Sangili, the petitioner on one occasion, gave an alleged police summon addressed to
Vatchala as though the police wants her to appear in connection with some petition forwarded to the police
from the Chief Minister’s Cell; however, that alleged police summons was sent to the hand-writing
experts, for opinion and they arrived at the conclusion that they cannot give a conclusive opinion that the
impugned signature or hand-writing, is that of the petitioner.
        10. Placing reliance on such opinion of experts, the learned counsel for the petitioner would
strongly argue and convincingly too that in view of such hand-writing expert’s opinion, the framing of
charge under Section 468, I.P.C is totally untenable.
        11. The learned Government Advocate (Criminal Side) would advance his argument to the effect
that only during trial alone, all these factual intricacies could be decided and not at this stage.
        12. I am of the considered opinion that once the hand-writing expert’s opinion is in favour of the
accused and it is not raising the accusative finger as against the accused, certainly the learned Magistrate
was not justified in framing charge for the offence of forgery as against the accused and          accordingly,
the charge under Section 468, I.P.C has to be quashed.
        13. Relating to the charge under Section 420, I.P.C, the learned      counsel for the petitioner would
vehemently argue that merely based on statement of the de facto complainant, the charge under Section
420, I.P.C should not have been framed. Relating to this objection is concerned, I would observe that
simply because, it is based on oral evidence, this Court cannot interfere while exercising the power under
Section 482, Cr.P.C. To believe the de facto complainant or not, is a question of fact and after due cross-
examination alone, the trial Court would be able to come to a conclusion. In the F.I.R, the de facto
complainant narrated about the alleged cheating       committed by the accused and in such a case, this Court
cannot quash those charges. The charge relating to causing hurt etc, the police relies on the accident
register and a copy of it would show that she sustained simple injuries and it is also a matter of evidence
which should be considered by the trial Court.
        14. The other offences of criminal intimidation, outraging modesty and harassment to women, are
all based on oral evidence and this Court cannot interfere with it.
        15. With the above observation, Cri.O.P(MD)No.10194 of 2007 is partly allowed, setting aside the
charge under Section 468, I.P.C only. Relating to other charges framed, it is for the trial Court to proceed
with the trial as against the accused as per law. Consequently, connected M.P(MD)No.1 of 2007 is closed.
        16. Relating to Cri.O.P.(MD)No.9735 of 2007, I am of the considered opinion that the petitioner
was not justified in filing that application even before framing of charges. At that stage, it is was the duty
of the prosecution to place the records and it was not the duty of the accused to place the evidence to prove
his innocence. The learned Magistrate also in his order, gave a finding that no reason at all was found
stated in the petition.       However, while arguing the case before this Court, the learned counsel for the
petitioner would submit that for the purpose of proving that P.W.1 is not a witness of truth and that she
already committed misdeeds, he wanted those documents to be summoned.
        17. It is a trite proposition of law that at the time of trial, the accused should be given due
opportunity to cross-examine the witnesses, for which the documents required by the petitioner/accused
should be made available before the Court and then only, during cross-examination, the prosecution
witness could be confronted with those documents. Without sticking on to technicalities, the accused
should certainly be given an opportunity to get summoned the relevant documents provided those
documents are having connection with the witness. Accordingly, the trial Judge shall see to it whether those
documents are in any way connected with the prosecution witness. If that be so, without any further
probe, let summons be issued to the persons concerned to produce the documents before commencement of
the trial itself, so that the accused would have the opportunity of cross-examining the witness with
reference to those documents.
       18. With the above observation, Cri.O.P.(MD)No.9735 of 2007 is           disposed off. Consequently,
connected M.P(MD)No.1 of 2007 is closed.
                                                                                       Ordered accordingly.



                                   [2008 (1) T.N.L.R. 366 (Mad) (MB)]
                                          MADRAS HIGH COURT
                                            (MADURAI-BENCH)
BEFORE:
             G. RAJASURIA, J.
                       P. NEHRU AND OTHERS                                                      ...Petitioners
                                                   Versus
                                THE STATE                                                       ...Respondent
[Cri. R.C. (MD) Nos. 498 to 500 of 2007 and M.P. (MD) Nos. 1 of 2007, decided on 21 September, 2007]
                                                                                         st


       Indian Penal Code, 1860—Sections 120-B, 409, 477—Prevention of Corruption Act, 1988—
Section 13 (1) (c) and (d) r/w Section 109 of Indian Penal Code—Criminal Procedure Code, 1973—
Sections 397 and 401—Discharge—State Construction Corporation got assigned a contract work
which was sub-let to ‘T’—Petitioners are site engineer in Construction Corporation relating to such
work—Petitioner was under pressure to complete work within stipulated time—Machineries
provided by them to ‘T’—Rent was payable by ‘T’ and could be recovered from dues payable to
‘T’—Dues accumulated to extent of more than 50 lakhs rupees—These lapses cannot be said to be
accidental—At this stage it cannot be said that petitioners are not at all liable—Hence, no
interference warranted with dismissal of     application for discharge—Revision dismissed.
(Para 13)
       Case law.—2007 (1) SCC 49; 2000 (6) SCC 338—relied on.
        Counsel.—Mr. G.R. Edmund, for the petitioners; Mr. Siva Ayyappan, Govt. Advocate (Cri. Side),
for the respondent.
                                                 JUDGMENT
       G. RAJASURIA, J.—These criminal revision cases are focussed to call for the records in
Cr.M.P.Nos.1204 of 2006, 1205 of 2006 and 1202 of 2006 in Special Case No.1 of 2006 on the file of the
learned Chief Judicial          Magistrate, Madurai and set aside the orders dated 19.07.2007 and further
pass an order discharging the petitioners of the charges levelled as against them.
       2. The facts giving rise to the filing of these revisions could be    portrayed and parodied thus:
        The police registered the case in Cr.No.2 of 1998 for the offences punishable under Sections 120-
B, 409, 477-A and Section 13(1)(c) and (d) of P.C Act read with Section 109, I.P.C, which culminated in
filing of the charge-sheet; thereupon Cri.M.P.Nos. 1204 of 2006, 1205 of 2006 and 1202 of 2006 in Special
Case No.1 of 2006 on the file of the learned Chief Judicial          Magistrate, Madurai, have been filed by
the petitioners for discharge. Broadly, the facts are that the Tamil Nadu State Construction Corporation got
assigned a contract work by name “Periyar Linke Canal Work’ after Tamil Nadu Public Works Department
sublet it to one Thiagarajan. In making payments to him, there occurred various misdeeds attracting penal
provisions. The petitioners are the Site engineers in Tamil Nadu State Construction Corporation relating
to such work.
       3. Upon hearing both sides, the learned Sessions Judge dismissed those petitions.
        4. Being aggrieved by and dissatisfied with, the order of the learned Sessions Judge, these criminal
revision cases have been filed on the main grounds that the revision petitioners being the lower level
officials, so to say, Site Engineers, who are expected to maintain ‘M’ book strictly as per the actuals
maintained ‘M’ book. The situation prevailing in respect of the       contract work at the relevant time was
such that the contractor namely Thiagarajan had upper hand with the higher officials in the same
Department and thereby, he even before the commencement of the contract work, had obtained three
cheque payments vide Voucher Nos.207 to 208, dated 17.05.1993 itself; on a few days in the ‘M’ book
prepared by the Site       Engineers, the said Thiagarajan signed and thereafter, he virtually refrained from
signing; however, the petitioners were constrained to finish the work within a limited time and the work
was in progress and in such a case, they were made to release various types of machineries for carrying out
the work by Thiagarajan with the understanding that for such making available those machineries, rental
has to be recovered from the dues payable to Thiagarajan relating to the contract work. It so happened that
the said Thiagarajan did not sign ‘M’ book relating to he having used those machineries for carrying out the
work.
        5. The learned counsel for the petitioner would contend that the lapse was not a wilful one, but it
was because of the said Thiagarajan’s connection with the higher officials and that only resulted in the
revision petitioners not being able to obtain his signatures in ‘M’ book.
        6. Placing reliance on the records and the photocopy of the ‘M’ books prepared by them, the learned
counsel for the petitioners would argue that even without calling for report from the Site Engineers, straight
away, the higher officials released the payments and as a tip of the iceberg, those three cheques dated
17.05.1983 cited supra, were issued even before the formal agreement was entered into relating to the
contract work.
        7. The learned counsel for the petitioners would argue that even though the said Thiagarajan did not
sign as a token of he having utilized the machineries etc, yet the necessary recoveries were effected. But
in page No.14, (inner page No.47) of the additional typed set filed by the petitioners, it is found stated by
Kadar Mohideen, the Executive Engineer who probed into the matter that those rentals to an extent of
Rs.50,27,520/- (Rupees Fifty Lakhs Twenty-seven Thousand Five Hundred and Twenty only) were not
recovered from the said Thiagarajan in view of the lapse committed by the lower level officials.
        8. Whereas the learned counsel for the petitioners would submit that this is a clear misstatement and
he could torpedo such a statement by             highlighting that amounts were recovered generally from
Thiagarajan and the lower level officials cannot be faulted with and made a scope grant for the misdeeds of
their superiors.
        9. The learned Government Advocate (Criminal Side) would stress upon the fat that the said
statement of Kadar Mohideen is perfectly correct and the recoveries could not be effected in view of non-
obtention of the signatures of the said Thiagarajan in the ‘M’ book prepared by them. He would also narrate
that there was a big conspiracy and cahoot hatched         between them and in pursuance of that alone, all
these malpractices         occurred and it is not a mere accident or as put forth by the other side that owing to
Thiagarajan’s highhandedness only it occurred. He would also             submit that both lower and higher level
officials concerned have been         arrayed in this case.
         10. The learned counsel for the petitioners would also argue that the said Thiagarajan himself filed
the suit for recovery of huge amounts from the Department concerned by pleading that there was no over
payment and in fact, over and above what was already paid to him, they have to pay very huge sum also.
The said Thiagarajan is one of the accused in this case. It might be the case of Thiagarajan but during trial
alone, all these facts could be dealt with and adjudicated.
         11. The learned counsel for the petitioners would submit that the trial Judge without looking into the
documents, simply gave a finding that there was a prima facie case to frame charge. However, this Court
heard at length both sides on factual aspects and I am of the considered opinion that even though the
petitioners may have reasons for their non-obtention of the            signatures of the said Thiagarajan in the
relevant records, yet their liability stands out like a sore thumb ex facie and prima facie and during trial,
they could explain and expound their defence.
         12. At this juncture, I would like to recollect the following decisions of the Honourable Apex Court
relating to framing of charges:
       (i)      Lalu Prasad v. State of Bihar reported in (2007) 1 SCC 49.
      (ii)      State of M.P. v. Mohanlal Soni reported in (2000) 6 SCC 338.An excerpt from it, would run
                thus:
           “At the stage of framing charge, the Court has to prima facie               consider whether there is
           sufficient ground for proceeding against the accused. The Court is not required to appreciate
           evidence to conclude whether the materials produced are sufficient or not for convincing the
           accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a
           charge has to be framed. Per contra, if the evidence which the prosecution proposes to
           produce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-
           examination or rebutted by the defence             evidence, if any, cannot show that the accused
           committed the       particular offence, then the charge can be quashed.”
                                                                                             (emphasis supplied)
         13. The aforesaid decisions of the Honourable Apex Court would clearly indicate that at the time of
framing of charges, the Court is not expected to delve deep into all factual aspects and find out as to
whether the accused could be convicted or not. The conviction or acquittal should not be the approach of
the learned Judge at the time of framing of charge. He has only to look into the prima facie case that could
be found out from the records. Apparently, it is an admitted fact that as many as three engineers of the
same Department probed into the matter and gave statements and in those statements, they raised their
accusative fingers as against the petitioners herein and in such a case, it would be premature to hold that the
petitioners are not at all liable. However, I am of the considered opinion that before the trial Court, the
petitioners are at liberty to place all the records and put forth once again all points which were raised before
this Court and the trial Court also uninfluenced and untrammelled by any of the observations made by this
Court herein, shall deal with the matter.
         14. The learned counsel for the petitioners would make an extempore submission to the effect that a
time limit may be fixed for the disposal of the case and I could see considerable force in the submission and
accordingly, the trial Court shall dispose of the matter within a period of three months from the date of
receipt of a copy of this order and report compliance.
         15. With the above observation, these criminal revision cases are            dismissed. Consequently,
connected M.P(MD)Nos.1 of 2007 are dismissed.
                                                                                            Revisions dismissed.



                                        [2008 (1) T.N.L.R. 369 (Mad)]
                                           MADRAS HIGH COURT
BEFORE:
               M. JEYAPAUL, J.
                          MRS. MEENAKSHI SATHISH                                                     ...Petitioner
                                                     Versus
M/S. SOUTHERN PETROCHEMICAL INDUSTRIES
                       CORPORATION LTD. AND OTHERS                                                ...Respondents
   [Criminal Original Petition Nos. 5350 to 5352 of 2007 and M.P. Nos. 1 and 3 of 2007, decided on 22 nd
                                                 February, 2008]
        Criminal Procedure Code, 1973—Section 482—Negotiable                  Instrument Act, 1881—Section
138—Quashing of proceeding—                Complaint for dishonour of cheque—Petitioner who is accused
No. 4 stated that she resigned from partnership firm in March, 2001 and cheque was issued in
December, 2003—Complainant in reply stated that no public notice was given—Held, complainant
not show active involvement of petitioner and also not shown that she was                       responsible for
conduct of its business—Hence, proceeding cannot be continued—Proceeding quashed.
(Paras 15 to 18)
        Case law.—2002 (7) SCC 655; 2007 (2) Supreme 811—referred.
        Counsel.—Mr. D. Krishnakumar, for the petitioner; Mr. AL. Sundaresan, Senior Counsel for Mr.
AL. Gandhimathi, for the respondents.
                                                   JUDGMENT
        M. JEYAPAUL, J.—The petitioner ranked as fourth accused in three cases under Section 138 read
with Section 142 of the Negotiable Instruments Act in C.C.Nos.504, 461 and 679 of 2004, moves these
respective petitions seeking quashment of the said criminal proceedings.
        2. The first respondent is the complainant in C.C.Nos.504, 461 and 679 of 2004. It is alleged that
the first accused is a registered Partnership Firm consisting of accused 2 to 4 as its partners. It carried on
business in        fertilizers, chemicals, etc. Accused 2 to 4 are in charge of and responsible for the conduct
of the day to day affairs of the first accused firm. For the         outstanding liability, the subject cheques
bearing Nos.595350 dated 1.12.2003 for a sum of Rs.9,05,020/-, 599788 dated 26.12.2003 for a sum of
Rs.2,25,991/- and 599789 dated 31.12.2003 for a sum of Rs.15,47,102/- were issued by the first accused
partnership firm. But, the cheques were returned dishonoured when presented for payment. The fourth
accused, who is the petitioner herein received statutory notice and gave reply stating that she was no more a
partner in the first accused Partnership Firm. She had retired from the Partnership Firm as early as on
31.3.2001. But, the complainant has no          knowledge about the retirement of the fourth accused from the
first accused firm. No public notice was given about her retirement from the Partnership Firm. The third
and fourth accused are the partners who are in charge of day to day business along with the second accused
and with their consent and knowledge, the cheques were issued. With the aforesaid allegations, the three
cases were laid as against the first accused Partnership Firm and its partners.
        3. The petitioner/fourth accused would contend that she had retired from the first accused
Partnership Firm with effect from 1.4.2001. The records submitted to the Income Tax Department would
reveal that she had retired from the Partnership Firm. The second and third accused have reconstituted the
Partnership Firm after the retirement of the petitioner herein. The cheques were issued on 1.12.2003,
26.12.2003 and 31.12.2003 subsequent to the retirement of the petitioner from the Partnership Firm.
Neither was she a signatory to the cheque nor was she a partner continuing in the         Partnership Firm. Her
resignation from the Partnership Firm was intimated to the Sales Tax authorities. There is no specific
allegation attributed to the petitioner in the complaint. Never was she in charge of and responsible for the
conduct of the business of the Partnership Firm. Therefore, the            petitioner submits that the criminal
proceedings under Section 138 read with 142 of the Negotiable Instruments Act initiated as against her
will have to be quashed.
        4. The complainant/first respondent has taken a stand that the       complainant was not aware of the
retirement of the petitioner from the Partnership Firm. No publication in the Newspapers or in the gazette
was made as mandated under Section 72 of the Partnership Act. The complainant seriously disputes the
claim of the petitioner that she had already       retired from the Partnership Firm. Therefore, the petitions
have been filed devoid of merits and they deserve dismissal.
         5. Learned counsel appearing for the petitioner would vehemently contend that the documents
placed before this Court would clinchingly show that the petitioner had already retired from the Partnership
Firm even when the subject cheques were issued by the second accused on behalf of the first accused
Partnership Firm. Further, no averment is found to show that the petitioner actively associated with the
Partnership Firm in carrying on its business activities. Simple averment in the complaint that the petitioner
was in charge of and responsible for the conduct of the Partnership Firm cannot be a basis for proceeding
against the petitioner under Section 138 read with 142 of the Negotiable Instruments Act. Therefore, the
learned counsel appearing for the petitioner contends that the criminal proceedings as against the petitioner
are liable to be quashed.
         6. Learned senior counsel appearing for the first respondent/complainant would vehemently contend
that no publication as contemplated under Section 72 of the Indian Partnership Act was made by the
petitioner who allegedly retired from the Partnership Firm. Therefore, in the eye of the third parties, the
petitioner, who was originally, a partner of the firm        continues to be a partner even after the dissolution
of the Partnership Firm. Therefore, she cannot shirk her responsibility in view of the provision of Sections
45 and 72 of the Indian Partnership Act. He would further submit that sufficient averments have been made
in the complaint to show that the petitioner was also at the helms of the Partnership Firm. Therefore, the
disputed points will have to be raised only during the course of trial of the case, he further submits.
         7. The petitioner has produced the deed of reconstitution of the      Partnership Firm dated 1.4.2001.
It is found that the said deed of reconstitution was not a registered one. Therefore, such a document cannot
be given much credence while exercising the power under Section 482 of the Code of Criminal Procedure.
Only the trial Court will have to go into the question whether there was such an unregistered deed of
reconstitution of the firm executed by and between the parties. A resignation letter alleged to have been
sent to the Sales Tax Officer, Circle-II, Thirupunithura has also been filed by the petitioner without any
authentic seal over there. Therefore, the truth and validity of such a document cannot be decided by this
Court. Of course, the petitioner has produced the Income Tax returns of the reconstituted firm to show
prima facie before the Court that the reconstituted firm had filed returns informing the Income Tax
authorities that the firm was already reconstituted consisting of the second and third accused alone. Of
course, the said returns also would show that the fourth accused does not continue in the original
Partnership Firm constituted by accused 2 to 4.
         8. Section 45 of the Partnership Act, 1932 reads as follows:—
          “Liability for acts of partners done after dissolution.—(1) Notwithstanding the dissolution of a
          firm, the partners continue to be liable as such to third parties for any act done by any of them
          which would have been an act of the firm if done before the dissolution, until public notice is
          given of the dissolution:
          Provided that the estate of a partner who dies, or who is adjudicated an insolvent, or of a partner
          who, not having been known to the person dealing with the firm to be a partner, retires from the
          firm, is not liable under this section for acts done after the date on which he ceases to be a
          partner.”
         There might have been dissolution of a Partnership Firm. But, in the eye of law, the partners would
continue to be liable to the third parties who had not been put on public notice about the dissolution of the
firm and       retirement of the partner from the Partnership Firm so far as the activity of one of the partners
in the Partnership Firm is concerned.
         9. Section 72 of the said Act reads as follows:—
          “Mode of giving public notice.—A public notice under this Act is given—(a) Where it relates to
          the retirement or expulsion of a          partner from a registered firm, or to the dissolution of a
          registered firm, or to the election to become or not to become a partner in a registered firm by a
          person attaining majority who was admitted as a minor to the benefits of partnership, by notice to
          the Registrar of Firms under Section 63, and by publication in the Official Gazette and in at least
          one vernacular newspaper circulating in the district where the firm to which it relates has its place
          of business, and
            (b)      in any other case, by publication in the Official Gazette, and in at least one vernacular
                     newspaper circulating in the     district where the firm to which it relates has its place or
                     principal place of business.”
         Admittedly, the first accused firm is an unregistered Partnership Firm. Therefore, Section 72(b) of
the Partnership Act, 1932, squarely applies to the case on hand. In a case where the Partnership Firm was
not a registered one, then the retirement of a partner shall be published in the official        gazette and also in
one of the vernacular Newspapers which has wide                  circulation in the district where the firm has its
place of business.
         10. The conjoint reading of Section 45 and Section 72 of the Partnership Act, 1932 makes it clear
that even in a case where the Partnership Firm was an unregistered one, in order to save the third parties
who are dealing in business with the Partnership Firm, public notice in the official gazette and also in the
local newspaper about the retirement of a partner is very much required for the purpose of putting the third
parties to notice about its reconstitution and the cessation of liability of the partner who had             already
retired.
         11. In this case, as rightly pointed out by the learned senior counsel appearing for the complainant,
the petitioner, who allegedly retired from the Partnership Firm on the basis of the unregistered deed of
reconstitution, has not chosen to give any public notice as mandated under Section 72 of the Partnership
Act, 1932 to shirk her liability as contemplated under Section 45 of the said Act. Therefore, even assuming
for the sake of         argument that the fourth accused had already left the Partnership Firm, she is liable for
the acts of the reconstituted Partnership Firm as her retirement was not published in terms of Section 72(b)
of the said Act.
         12. Now, the Court will have to see whether there is sufficient                   averment as against the
petitioner herein to prosecute her under Section 138 of the Negotiable Instruments Act. It has been averred
in the complaint laid under Section 138 read with 142 of the Negotiable Instruments Act that the petitioner
was also in charge of and responsible for the conduct of the day to day affairs and business of the first
accused firm. It has also been alleged that only with the consent and knowledge of the petitioner herein, the
cheques were issued.
         13. The learned counsel appearing for the petitioner cited an authority in Katta Sujatha v. Fertilizers
& Chemicals Travancore Limited, 2002 (7) SCC 655, wherein the Honourable Supreme Court has held that
when there is no allegation that a partner was in charge of and was responsible for the conduct of the
business of the partnership firm and that the offence was committed with her consent or connivance or that
the same was attributable to any neglect on her part in the matter of issuance of the subject cheque, a
complaint against her cannot be sustained. On a careful perusal of the            complaint, it is found that those
two requirements as contemplated in the aforesaid authority have been specifically pleaded in the present
complaints where the petitioner has been arrayed as fourth accused.
         14. The Honourable Supreme Court in N.K.Wahi v. Shekhar Singh and others, 2007 (2) SCC 811,
has observed as follows:—
           “To launch a prosecution, therefore, against the alleged directors there must be a specific
           allegation in the complaint as to the part played by them in the transaction. There should be clear
           and         unambiguous allegation as to who the directors are incharge and responsible for the
           conduct of the business of the Company. The          description should be clear. It is true that precise
           words from the provisions of the Act need not be reproduced and the Court can always come to
           a conclusion in facts of each case. But still in the absence of any averment or specific evidence the
           net result would be that complaint would not be entertainable.”
         In the aforesaid judgment, the Honourable Supreme Court has ruled that the simple averment that
the accused directors were responsible for carrying on the business of the company and the liability of the
accused persons jointly and severally is not sufficient to hold that they are              vicariously liable for the
liability of the company.
         15. The question may arise as to what sort of parts played by the partners concerned will have to be
adverted to in the complaint. When it is a matter of commercial transaction, it may be a case where such
partnership would have proceeded in clinching a commercial contract between the                  parties. He or she
may be involved in mobilising loan from the complainant. She might have involved in preparing some
documents clinching the transaction. She might have also signed the cheque on behalf of the firm or
company as the case may be. Such active involvement of the partner in the affairs of the firm can be
highlighted in the complaint to show prima facie that a partner or a director of a Partnership Firm or a
company, as the case may be, was responsible for the conduct of its business.
        16. The averment found in the complaint that the petitioner also was in charge of and responsible
for the conduct of the business and the vague allegation that the cheque was issued with her consent and
knowledge are not sufficient pleadings to show prima facie that she was responsible for the conduct of the
business of the company.
        17. Though the petitioner could not establish that she is not liable for the act of the other partners of
the firm right from her alleged date of retirement, the Court find that the petitioner cannot be prosecuted
with the aforesaid vague allegations which does not indicate her active role in the business of the
Partnership Firm. A sleeping partner who had not played any active role in the business of the Partnership
Firm cannot be directed to face the criminal liability under Section 138 read with 142 of the Negotiable
Instruments Act.
        18. In view of the above, the criminal proceedings as against the           petitioner ranked as fourth
accused in C.C.Nos.504, 461 and 679 of 2004 on the file of Judicial Magistrate I, Coimbatore stand
quashed. The criminal original petitions stand allowed. The connected miscellaneous petitions stand closed.
                                                                                               Petition allowed.

                                        [2008 (1) T.N.L.R. 375 (Mad)]
                                            MADRAS HIGH COURT
BEFORE:
              P.R. SHIVAKUMAR, J.
                       KANNAN                                                                       ...Appellant
                                                 Versus
                               STATE                                                              ...Respondent
                    [Criminal Appeal No. 1026 of 2002, decided on 26 th February, 2008]
        The Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, 1989—Section
3 (1) (x)—Scope and application—            Allegation against appellant of insulting complainant in
presence of others mentioning name of his caste—Threatened to beat him with slipper—Record
reveals that complainant is Christian and not a member of schedule caste—Certificate presented
here prepared       after eight months of occurrence—No concrete proof that complainant is member
of schedule caste—Case not proved beyond               reasonable doubt—Hence, conviction cannot be
sustained—Set aside—Appeal allowed.                                                (Paras 10 to 12)
        Counsel.—Mr. V. Arul, for the appellant; Mr. R. Muniapparaj, Government Advocate (Criminal
Side), for the respondent.
                                                  JUDGMENT
        P.R. SHIVAKUMAR, J.—The accused in Sessions Case No.52 of 2000 on the file of the Principal
Sessions Judge (Special Court under the SC & ST Act), Chengalpattu, has preferred the present appeal
against his conviction for an offence under Section 3 (1) (x) of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred as the Act) and the punishment
imposed thereon by the judgment of the Sessions Court, dated 19.06.2002.
        2. The case of the prosecution in brief can be stated thus:
      (i)     P.W.1, Chelladurai was a member of the Scheduled Caste and he was functioning as
              Treasurer of Ambedkar Makkal Iyakkam. For the timber purchased from the accused, he had
              paid a sum of Rs.3,500/- and according to him, no amount was due regarding the said dealing.
              On 16.07.1998 P.W.1 had gone to Kanchipadi Village in connection with his business. While
              he was talking with one Govindasamy Reddy near Dhroupathy Amman Temple at Kachipadi,
              the appellant/accused who was already present in the said place of occurrence, demanded a
              sum of Rs.500/- from P.W.1. P.W.1 replied no amount was due from him. Enraged by the said
              reply the accused made an attempt to assault P.W.1. As P.W.1 showed resistance, the
              appellant/accused insulted him in the      presence of others mentioning the name of his caste
               and threatening to beat him with slipper. Govindasamy, Palayam, Dhandukan and P.W.2-
               Arumugam were the eye-witnesses to the occurrence, who pacified the accused as well as
               P.W.1 and        prevented further untoward incident. Thereupon, Challadurai (P.W.1) gave a
               type- written complaint under Ex.P1 to the Sub Inspector of Police, Kanakamma Chatram
               Police Station. P.W.4- Parthasarathy Raja, the then Sub Inspector of Police attached to the
               said police station, received the said complaint and         registered a case in Cr.No.381 of
               1998 at Kanakamma Charam Police Station for offences punishable under Sections 341 and
               294(B), IPC and 3(x) of the Act (the case seems to have been registered under Section 3(x) of
               the Act instead of the correct provision 3(1)(x) of the Act). P.W.6-Sanjaynag, who was
               working as the Joint Superintendent of Police, Thiruthani, took up the investigation of the
               case, visited the scene of occurrence,          prepared necessary documents, examined the
               witnesses and recorded their statement and also instructed the Inspector of Police to obtain
               the community certificate of the accused as well as P.W.1 from the Tahsildar. As he was
               transferred before ever he could complete the investigation, his successor, namely P.W.7-
               Shalini Singh, who took charge as Assistant Superintendent of Police, Thiruthani, took up
               further investigation of the case, completed the investigation and submitted a final report
               alleging commission of an offence punishable under Section 3(1)(x) of the Act. After
               furnishing copies under Section 207, Cr.P.C. and       following the necessary formalities, the
               committal Magistrate namely, the learned Judicial Magistrate No.2, Thiruthani,
               committed the case for trial to the Principal Sessions Judge, Chengalpattu (Special Court
               under the SC and ST Act).
        3. The Special Court took the case on file as S.C.No.52 of 2000 framed a charge against the
appellant/accused for an offence under Section 3(1)(x) of the Act and recorded the plea of the accused, who
pleaded not guilty. In the trial that followed the plea of the accused i.e., plea of innocence made by the
accused, seven witnesses were examined as P.W.1 to P.W.7, five           documents were marked as Ex.P-1 to
Ex.P-5 on the side of the prosecution. When the accused was questioned under Section 313, Cr.P.C
regarding the incriminating materials available in the evidence adduced on the side of the prosecution, the
accused stated that the evidence against him were false and contended that a false case had been foisted
against him. No witness was examined and no document was marked on the side of the accused. No
material object was produced on either side.
        4. The learned Principal Sessions Judge, Chengalpattu, after analyasing the evidence in the light of
the submissions made by the Public Prosecutor as well as the defence counsel, came to the conclusion that
the charge under Section 3(1)(x) of the Act stood proved beyond reasonable doubt held the
appellant/accused guilty of the offence, convicted him for the said offence and sentenced him to undergo
rigorous imprisonment for one year and to pay a fine of Rs.1,000/- in default, to undergo simple
imprisonment for two months.
        5. Aggrieved by the said order of conviction and sentence, the          appellant/accused has brought
forth this appeal before this Court on various grounds set out in the appeal petition.
        6. This Court heard the submissions made by Mr.V.Arun, learned              counsel appearing for the
appellant/accused and Mr.R.Muniapparaj, learned Government Advocate (Criminal Side) representing the
respondent/State. The materials available on record were also perused.
        7. The accused, who was convicted by the trial Court for an offence punishable under Section
3(1)(x) of the Act, is the appellant herein. To establish an offence punishable under Section 3(1)(x) of the
Act, the prosecution must prove that the person allegedly insulted was a member of a         Scheduled Caste
or Scheduled Tribe. In this case, the learned counsel for the appellant, without adverting to other aspects of
the case, confined his argument with regard to the above aspect alone. According to the contention raised
by the learned counsel for the appellant, the first and foremost    requirement to sustain a conviction for an
offence under Section 3(1)(x) of the Act has not been satisfied by the prosecution. According to the
submissions made by the learned counsel for the appellant, the alleged victim, namely P.W.1 Chelladurai
was a born Christian, he continued to profess Christianity even as on the date of occurrence and a false
certificate seems to have been obtained from the Revenue Authority for the purpose of this case long after
date of alleged occurrence. Though the alleged victim P.W.1 would contend that he was a Christian till
1990 and in the year 1990 he converted to Hinduism, no proof was forthcoming to show when, where and
how he converted to Hinduism from Christian, the learned counsel for the appellant contended.
        8. The learned counsel has also pointed out the fact that nothing is found in Ex.P2, the community
certificate issued by the Tahsildar, Thiruvallur, as to when the conversion was made. The learned counsel
for the appellant has also pointed out that there was absence of evidence to show that either his parents or
P.W.1 was a member of a Scheduled Caste even prior to their conversion to Hinduism and the year in
which they converted from                 Hinduism to Christianity. According to the submissions made by the
learned counsel for the appellant the said defect and discrepancy found in the          evidence adduced on the
side of the prosecution will be enough to hold that the prosecution has failed to prove that the alleged
victim P.W.1 was a member of a Scheduled Caste as on the date of occurrence to attract the provisions of
the said Act and that the learned Principal Sessions Judge, has lost sight of the above said defect and
arrived at a wrong conclusion that the prosecution was able to prove its case beyond reasonable doubt.
        9. On the other hand, Mr.R.Muniapparaj, Government Advocate                (Criminal Side), representing
the State, contended that the Constitution of India guarantees a fundamental right to everyone to profess
and practise the religion of his choice; that the evidence of P.W.1 and Ex.P-2 Community Certificate would
conclusively prove that though P.W.1 was a Christian, he subsequently embraced Hinduism and thus
became a member of a Scheduled Caste; that the certificate issued by the competent authority, namely the
Tahsildar, Thiruvallur would conclusively prove the community status of P.W.1 which had got to be
accepted by the Court and that therefore, there was nothing wrong in the judgment of conviction and the
order of sentence of the trial Court. The learned Government Advocate (Criminal Side) also contended that
the well considered judgment of the trial Court should not be disturbed by this Court in this appeal.
        10. It is true that our Constitution guarantees a fundamental right to everyone to profess and practise
the religion of his choice. Here the dispute is not with regard to the right of P.W.1 to profess and practice
the religion of his choice. The dispute relates to the contention of the prosecution that though P.W.1 was
originally a Christian, he subsequently converted to             Hinduism and thereby became a member of a
Scheduled Caste. In this         regard, except the interested testimony of P.W.1, there is no other evidence to
show that he had converted to Hinduism from Christianity. The               certificate issued by any recognised
agency of Hindu religion evidencing the observation of the formalities for such conversion has not been
produced. Whether there was any change of name at the time of alleged conversion has not been spoken to
by any one of the witnesses. P.W.1 was not a layman. Admittedly he was a retired teacher. Therefore the
S.S.L.C/E.S.L.C          certificate, Teacher Training Certificate, Service Record or pension book would have
been available with him. They would show his original community and religion. None of the said
certificates has been produced. On the other hand Ex.P-2 certificate seems to have been obtained 8 months
after the alleged occurrence. Therefore, this Court cannot brush aside as           unsustainable the contention
of the learned counsel for the appellant that the said certificate could have been obtained only for the
purpose of the case on hand. The learned counsel has also brought to the notice of the Court, the absence of
any special note in the community certificate marked as Ex.P-2 to the effect that the certificate holder who
was originally a Christian, had either converted or reconverted to Hinduism with effect from a particular
date. The conversion to be recognised should have been published in the Official Gazatte. The petitioner
has also not produced such a gazatte.
        11. Apart from the doubt that arises regarding the alleged conversion to Hinduism, there is a vital
factor which was not considered by the trial Court. There is no evidence to show that before the family of
P.W.1              converted to Christianity, they were members of a Scheduled Caste. The Constitution
guarantees right to profess any religion which includes a right to conversion to any religion. But caste is a
stigma or status attached by birth which cannot be acquired or changed. In the case on hand, though there is
some evidence, of course insufficient, to prove that P.W.1 re-          embrace Hinduism, there is no evidence
to show that he or his parents were originally members of Hindu Adi Dravida community before their
conversion to Christianity. The mere fact that P.W.1 was the Treasurer of Ambedkar People Iyakkam will
not be enough to show that he was a member of a                Scheduled Caste. The membership of Ambedkar
Makkal Iyakkam is not proved to be restricted to the members of Scheduled Caste alone. The admission
made by P.W.1 that he was a member of the said movement for well over three decades is enough to accept
the contention of the learned counsel for the appellant that even while he was a Christian, he happened to
be a member of the said movement and therefore the mere fact that he happened to the treasurer of the said
movement would not be enough to show that either he or her parents or grand parents were members of a
Scheduled Caste before their conversion to Christianity. The community certificate Ex.P-2 was obtained 8
months after the occurrence. There is every possibility of holding that if at all he had converted to
Hinduism that could have been done after the occurrence for the purpose of getting the Ex.P-2 certificate. It
should also be noticed that there is nothing to show that P.W.1 had converted to Hinduism before the
occurrence. Therefore, the contention of the learned counsel for the appellant that the prosecution has
miserably failed to establish that P.W.1 was a member of Scheduled Caste as on the date of occurrence has
got to be countenanced.
        12. In view of the foregoing discussions, this Court comes to the    conclusion that the trial Court
has erred in coming to the conclusion that the charge under Section 3(1)(x) of the Act had been proved
beyond reasonable doubt; that the learned Principal Sessions Judge should have considered the above said
aspect and held that the accused was not proved to be guilty of the said offence and that the accused is
entitled to be acquitted. Accordingly, the appeal succeeds. The judgment of conviction and the order of
sentence passed by the learned trial Judge are hereby set aside. The appellant/     accused is acquitted of
the offence which he stood charged. The fine amount paid by the appellant/accused is directed to be
refunded. The bail bond executed by the appellant is hereby cancelled.
                                                                                           Appeal allowed.



                                      [2008 (1) T.N.L.R. 379 (Mad)]
                                          MADRAS HIGH COURT
BEFORE:
             D. MURUGESAN AND V. PERIYA KARUPPIAH, JJ.
                     DASARATHAN AND HARIRAMAN @ NARAYANASWAMY                                   ...Appellants
                                               Versus
                    STATE                                                                      ...Respondent
                  [Criminal Appeal No. 727 of 2005, decided on 25 th February, 2008]
       Indian Penal Code, 1860—Section 302/149—Evidence Act, 1872—Sections 3 and 32—
Murder—Case based on circumstantial evidence—Though there were eye-witness but turned
hostile—Two dying          declarations—On basis of first dying declaration complaint lodged—Both
dying declarations not show any concrete involvement of A-1 in alleged occurrence—No overt act of
A-2 as spoken by deceased to effect that he had caused injuries with Aruval while other accused
caught hold of him—Dying declaration not safe to rely on—Hence, appellant entitled to benefit of
doubt—Conviction set aside—Appeal allowed.
(Paras 9 and 10)
       Counsel.—Mr. R. Karthikeyan, for the appellant; Mr.V.R. Balasubramanian, Additional Public
Prosecutor, for the respondent.
                                                  JUDGMENT
        V. PERIYA KARUPPIAH, J.—This appeal is directed against the             judgment of conviction and
sentence passed by the Additional Sessions Judge/Fast Track Court No.1, Chidambaram, Cuddalore
District in S.C.No.341 of 2004 dated 11.08.2005 against A-1 and A-2 sentencing A-1 to undergo life
imprisonment for offence under Section 302 read with 149, I.P.C., and to pay a fine of Rs.5,000/- and in
default to undergo 6 months simple imprisonment; and A-2 guilty of offence under Section 302, I.P.C., and
sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/- and in default to undergo
for 6 months simple imprisonment.
        2. A-1 is the father of A-2 and father-in-law of the deceased Mahalingam. A-5 Jyothi is the wife of
the deceased. A-6 Kannan is the paramour of A-5. There was a dispute between the deceased and his wife
regarding the illicit relationship of A-5 with A-6. There was also a dispute between the deceased and A-2
regarding the money transaction of Rs.80,000/- given by the         deceased to A-2 to purchase a land. It is
the case of the prosecution that on 27.08.1999, all the accused had hatched a conspiracy to kill
Mahalingam. On this back ground, on 29.08.1999, at about 10.00 p.m., the deceased was         sleeping in a
cot in A-1’s house, all the accused gathered with deadly            weapons. A-2 and A-3 with a common
intention to kill the deceased stood in front of A-1’s house, A-4 and absconding accused Fakrudin Ali
Ahamed stood near the cot where the deceased was sleeping in order to prevent him from moving and A-2
and A-3 cut the deceased on his face, hands, legs and at his back with Aruval and on sustaining several cut
injuries, the deceased Mahalingam died at Government Hospital at Chennai on 01.09.1999. In
continuation of the said incident, A-1 and A-4 had also participated in the offence as the members of
unlawful assembly and had helped A-1 and A-3 in committing the murder of Mahalingam and therefore, all
the accused are liable to be punished under Section 120 (B), 147, 148 and 302 read with 149, I.P.C.
        3. The trial Court had examined P.Ws.1 to 27 and had produced Exs. P-1 to P-24 and M.Os. 1 to 7
in order to substantiate the case of the prosecution. The trial Court had perused the evidence both oral and
documentary and the material objects and had come to the conclusion of acquitting A-3 to A-6 from all the
charges and A-1 to A-2 from the charge of conspiracy under Section 120(B) and the charges under Section
147 and 148, I.P.C. but had convicted A-1 for the offence under Section 302 read with 149, I.P.C., and had
convicted A-2 for the offence under Section 302, I.P.C to undergo life imprisonment and to pay a fine of
Rs.5000/- and in default to undergo six months simple imprisonment for each of the accused.
        4. Mr.R.Karthikeyan, learned counsel for the appellant would raise an important point that the
conviction of A-1 and A-2 could not be arrived on the sole basis of the dying declarations of the deceased,
when all the other witnesses have turned hostile without substantiating the case of the       prosecution and
the conviction and sentence passed by the trial Court is also not in accordance with law and is in total
contradiction with the prosecution case. He would further submit that the trial Court had disbelieved the
unlawful assembly theory and had acquitted all the accused for the offence under Sections 147 and 148,
I.P.C., whereas A-1 was convicted under Section 302 read with 149, I.P.C., which is totally against law.
Moreover, he would submit that the charges framed against A-2 was with specific overt act that he had also
attacked the deceased along with A-3 whereas the dying declarations said to have been given by the
deceased would implicate A-2 to the extent that he had only abetted the unknown three persons to come
and finish the deceased Mahalingam which is contrary to the case of the prosecution. He would also submit
that there was no implication of A-1 in the dying declaration of the deceased and still the trial Court had
convicted A-1 for the offence under Sections 302 read with 149, I.P.C., which is not correct. He has also
submitted that the first dying declaration which is said to have been given in the form of complaint and the
second dying declaration given before the Magistrate were marked as Exs.P-13 and P-15 respectively. We
could see number of contradictions between the prosecution witnesses and the dying declarations given by
the deceased and therefore, it is not safe to follow the contradicted dying declarations and come to a
conclusion of         convicting the accused. Therefore, he would submit that A-1 and A-2 deserve to be
acquitted since there was no case made out against them even on the basis of the dying declarations-Ex.P-
13 and P-15.
        5. The learned Additional Public Prosecutor Mr.V.R.Balasubramanian would contend that despite
the witnesses of the prosecution turning hostile, the dying declarations given by the deceased Mahalingam
in the form of complaint-Ex.P-13 and before the Judicial Magistrate as Ex.P-15 have no material
contradictions and the cause of death of Mahalingam was also mentioned in Ex.P-1 that A-1 was speaking
outside the room with the       persons who were brought for attacking the deceased and therefore, the dying
declarations-Exs.P-13 and P-15 would implicate all the accused and since both the dying declarations are
not inconsistent with each other, the trial Court is also quite correct in coming to the conclusion of
convicting A-1 and A-2. He has prayed for dismissal of the appeal confirming the judgment of conviction
and sentence passed against A-1 and A-2 by the trial Court.
        6. We have given our anxious thought over the arguments advanced by both sides.
        7. It is not disputed that most of the witnesses have turned hostile and the case was decided only on
the circumstantial and medical evidence. The eye-witnesses who were examined to support the prosecution
case did not support the prosecution case before the Court. The trial Court had               relied upon the
complaint given by the deceased by way of dying declaration-Ex.P-13 which is the first dying declaration
and the actual dying declaration given by the deceased before the Judicial Magistrate, the second dying
declaration-Ex.P-15 and had come to the conclusion of deciding the case against A-1 and A-2.
        8. Now we have to carefully peruse both the dying declarations-Ex. P-13 and P-15 in order to
decide the legality of the judgment of the trial Court. In the complaint Ex.P-13, we could see that on
29.08.1999 at 10.00 p.m. when the deceased Mahalingam was lying on a cot at the house of A-1, he saw his
father-in-law, A-1 going outside and speaking to somebody, his brother-in-law – A-2 had instructed those
persons to cut and kill him and immediately, the three persons cut him and caused injuries and when he
made alarm, they went along with the weapons in their hands and A-1 and A-2 had planned to commit
murder him. Whereas, the dying declarations given before the Magistrate in Ex.P-15, he did not speak
about the conversation made by A-1 who went outside immediately on the arrival of A-2 with three
persons. However, he would state that A-1 was fleeing away from the house and A-2 had pointed out the
deceased to the persons he brought and immediately three persons had attacked with the Aruval in their
hands and caused cut injuries on the head, face and hands of the deceased. Immediately A-2 and other
persons had fled away from the scene of occurrence. The neighbours admitted the deceased in the hospital.
        9. In both the dying declarations, we could see that there was no overt act spoken by the deceased
Mahalingam against A-1 except, the plan to commit murder. The said plan was not spoken to by the
deceased in the second dying declaration. Similarly, in both the dying declarations, the overt act of A-2 was
spoken to as the abetment to kill the deceased Mahalingam and upon that abetment, three persons with
weapon had attacked the       deceased and caused injuries. Both the dying declarations did not show any
concrete involvement of A-1 in the alleged occurrence. In both the dying declarations, there was no overt
act of A-2 as spoken by the deceased Mahalingam to the effect that he had caused injuries with Aruval on
him while A-4 and yet another absconded accused Fakrudin Ali Ahamed had caught the deceased in the cot
as framed in the charge against A-2. The evidence of prosecution would also go a long way to show that the
weapon was seized in pursuance of the confession statement given by A-2 leading to recovery of M.O.6 as
if A-2 alone had caused the injuries on the deceased. The recovery of M.O.6 was evidenced by the seizure
mahazar-Ex.P-6. When we peruse the evidence of P.W.12 coupled with M.O.6, we could see that the said
weapon-M.O.6 was recovered from Sthapadi Lake and A-2 had                identified the same that it was used
by him in the occurrence. The said evidence of P.W.12 and the recovery of M.O.6 that it was used by A-2
for the commission of the offence is totally contradictory to the case as spoken by the deceased
Mahalingam in the dying declarations-Exs.P-13 and P-15. The charge framed as against A-2 also deadly
against the incident spoken by the deceased Mahalingam against A-2 in the said dying declarations. It is a
settled law that the dying declarations, being the last information given by the deceased, can be relied
upon provided there is no contradictions in the previous dying declaration and to the case of prosecution.
There is no doubt that the dying declarations if admitted, the accused had no opportunity to cross-examine
the deponent since the deponent would be a dead person. Therefore, much caution must be exercised before
relying upon the dying declarations against the accused. We have already seen that the dying
declarations given by the deceased on two occasions did not implicate A-1 and the overt act spoken by the
deceased person against A-2 was totally against the case and evidence adduced by the prosecution.
        10. Therefore, we are of the considered view that it is not safe to rely upon the dying declarations of
the deceased Mahalingam given in Exs.P-13 and P-15 and to bring home the accused 1 and 2 that the
charges framed against them are proved. In the given circumstances, we are of the firm view that the
benefit of doubt should have been given to the accused 1 and 2 since the dying declarations given by the
deceased are totally contradictory to the case of the prosecution. Therefore, the judgment of conviction and
sentence passed against A-1 and A-2 by the trial Court is not sound and legal. Therefore, it is necessary to
set aside the conviction and sentence passed against A-1 and A-2 and accordingly the same is set aside.
        11. In fine, the judgment of conviction and sentence passed against A-1 and A-2 by the trial Court
in S.C.No.341 of 2004 dated 11.08.2005 are set aside and the appeal is allowed. The bail bonds executed
by the accused, if any, shall stand cancelled.
                                                                                              Appeal allowed.



                                       [2008 (1) T.N.L.R. 383 (Mad)]
                                           MADRAS HIGH COURT
BEFORE:
             M. JEYAPAUL, J.
                     J.M. ARUMUGHAM                                                               ...Petitioner
                                                   Versus
                      STATE AND OTHERS                                                          ...Respondents
              [Criminal Original Petition No. 18533 of 2007, decided on 27 th February, 2008]
        Criminal Procedure Code, 1973—Section 363 (5)—Right to Information Act, 2005—Supply
of record of Court—Right of third parties—Discharge of accused persons in case of corruption—
Public prosecutor moved application seeking certified copies of paper of case for preferring
revision—Magistrate rejected application on ground that third party cannot seek those paper—
Legality of—Held, in view of coming into force of Right to Information Act, third party can seek
paper from Court.                                                         (Paras 8 to 14)
        Counsel.—Mr. S. Jayakumar, for the petitioner; Mr. A. Saravanan, Government Advocate (Cri.
Side), for the respondent 1st , Mr. V. Gopinath, Senior Counsel for Mr. L. Mahendran, for the respondents 2
to 8.
                                                   JUDGMENT
        M. JEYAPAUL, J.—The petition is filed seeking to set aside the order in Crl.M.P.No.1116 of 2007
on the file of the learned Chief Judicial Magistrate, Salem declining to grant certified copies of the
documents pertaining to the Special C.C.No.14 of 2004 on his file.
        2. A case in Special C.C.No.14 of 2004 was filed against respondents 2 to 8 under Section 13(2)
read with 13(1)(c) of the Prevention of Corruption Act and Section 109 of the Indian Penal Code read with
Section 13(2) read with Section 13(2)(e) of the Prevention of Corruption Act, for acquisition of properties
disproportionate to the known source of their income. Later on, they were discharged from the proceedings
in Special C.C.No.14 of 2004, by the common order dated 6.11.2006 passed by the learned Chief Judicial
Magistrate, Salem.
        3. The petitioner, who is the former Public Prosecutor for Salem              District and a practising
Advocate from the District and Sessions Court, Salem, filed a petition in Crl.M.P.No.1116 of 2007, before
the learned Chief Judicial Magistrate, Salem seeking certified copy of the First Information Report, charge-
sheet, docket-sheet endorsement, various petitions, counters and orders passed thereon and the statements
recorded under Section 161 of the Code of Criminal Procedure for the purpose of preferring revision
against the discharge of the accused from the aforesaid case before the High Court.
        4. The learned Chief Judicial Magistrate, Salem, having observed that no substantive reason was
assigned for seeking certified copies of these documents, that the petitioner was not an affected person as
contemplated under Section 363(5) of the Code of Criminal Procedure Code, that Section 363(6) of the of
Code of Criminal Procedure can be invoked only before the High Court and that Rule 339 of the Code of
Criminal Procedure contemplates furnishing of the records of the Criminal Case only to the parties
concerned and not to third parties, chose to dismiss the petition seeking copies of the aforesaid documents.
        5. The petitioner assails the aforesaid order rejecting his plea seeking certified copy of those
documents for the purpose of preferring revision before this Court challenging the discharge of respondents
2 to 7 in Special C.C.No.14 of 2004 on the file of the learned Chief Judicial Magistrate, Salem.
        6. Learned counsel appearing for the petitioner would submit that Section 363(6) of the Code of
Criminal Procedure contemplates supply of copies of any judgment or order of a Criminal Court to any
person for that matter on payment of fees as per the rules framed by the High Court.               Referring to
Order XII, Rule 3 of the Rules of the High Court Madras         Appellate Side, 1965, he would further submit
that on the request of any party certified copies of judicial records can be granted to persons who are not
party to the proceedings. Referring to the judgment pronounced by the bench of our High Court, the learned
counsel appearing for the petitioner would submit that in a similar case, our High Court has taken a view
that even a third party is entitled to copies of the records in the Criminal Court. Therefore, the impugned
order passed by the learned Chief Judicial       Magistrate, Salem is liable to be set aside.
        7. Learned Government Advocate (Criminal Side) would submit that Section 363(6) of the Code of
Criminal Procedure contemplates only issuance of grant of copies of the judgment or order of a Criminal
Court to a third party in terms of the rules framed by the High Court. No rule invoking the aforesaid law
was framed by our High Court. Therefore, the petitioner being a third party is not entitled to copies of any
judgment or order of a Criminal Court. Even assuming for the sake of argument that de hors any rule
framed by the High Court, the petitioner can invoke Section 363(6) of the Code of Criminal Procedure, he
can obtain only a certified copy of judgment or order passed by the Criminal Court and not other records
not contemplated therein. He would further contend that Order XII, Rule 3 of the Rules of High Court
Madras Appellate Side, 1965, does not apply to the records still lying with the trial Court and not reached
the portals of the High Court. Further, the Rules of High Court Madras Appellate Side, 1965 was not
enacted drawing powers under Section 363(6) of the Code of Criminal Procedure. Therefore, Order XII,
Rule 3 of the Rules of High Court Madras Appellate Side, 1965 does not apply to the fact situation. It is his
vehement submission that if the copies of documents maintained by the Criminal Court is parted with to a
third party, there is every chance for misuse of those documents which may land an innocent person into
trouble at the hands of unscrupulous elements. There may also be miscarriage of justice if such documents
are furnished to a third party who is not entitled to such documents and permit him to use it as a weapon to
wreak vengeance against an innocent person. Therefore, he would submit that the petitioner, who is a third
party, is not entitled to any of the documents maintained by the Criminal Court.
         8. As rightly pointed out by the learned Chief Judicial Magistrate, Salem in the impugned order,
Section 363(5), will not apply to the facts of this case inasmuch as the petitioner who is neither a party to
the proceedings nor a close relative to the parties to the proceedings, can be termed as persons “affected by
the order”. Likewise, Rule 339 of the Code of Criminal Procedure contemplates issuance of copies of the
records of the Criminal Court to the parties concerned on payment of proper stamp duty. The petitioner,
who is a third party cannot be considered as a party concerned in the aforesaid proceedings in Special
C.C.No.14 of 2004 on the file of the Chief Judicial Magistrate, Salem.
         9. The question is whether the petitioner, being a third party aggrieved by the order of discharge
passed by the Chief Judicial Magistrate in a           sensational case under the Prevention of Corruption Act
can seek for         certified copies of the material records therein. Section 363(6) of the Code of Criminal
Procedure reads as follows:—
          “The High Court may, by rules, provide for the grant of copies of any judgment or order of a
          Criminal Court to any person who is not affected by a judgment or order, on payment, by such
          person, of such fees, and subject to such conditions, as the High Court may, by such rules,
          provide.”
         The Parliament, in its wisdom, has thought it fit to grant copies of any judgment or order of a
Criminal Court even to a third party as per the terms and conditions of the rules framed by the respective
High Court. Unfortunately, our High Court has not framed any rule right from the year, 1973. The question
that arises for consideration is whether the right of a third party conferred under Section 363(6) of the Code
of Criminal Procedure to seek certified copies of any judgment or order of Criminal Court can be taken
away just because the High Court has not framed necessary rule therein.
         10. In the considered opinion of this Court, the failure on the part of High Court in framing rules as
indicated by the Parliament cannot take away the valuable right of a third party to obtain a copy of the
judgment or order of a Criminal Court. Even when the Parliament has intended something and the High
Court has not carried its intention to its logical end, the benevolent provision will have to be necessarily
extended to the party entitled to enjoy the right recognised therein. This Court has already held in D.
Jayakumar v. State rep by the Inspector of Police, Vigilance & Anti-Corruption Wing, Dindigul in Crl.O.P.
(MD) No.10290 of 2007 by order dated 4.10.2007, that a third party is entitled to certified copies of all the
material documents in a criminal case.
         11. There is no doubt that all the documents sought for by the           petitioner/third party are only
public documents. They do not fall under the classified information category. It is not the case of the first
respondent State that supply of copies of the criminal records in C.C.No.14 of 2004, would jeopardise the
interest of the State. After all the petitioner wants to challenge the order of discharge passed by the learned
Chief Judicial           Magistrate as a citizen concerned with the criminal administration in the country.
Further, the right to Information Act, 2005 prohibits divulging of information which would impede the
process of investigation or apprehension or prosecution of offenders. In other respects, furnishing of
information from the Court records are not prohibited under the Right to Information Act, 2005.
         12. It is true that Section 363(6) of the Code of Criminal Procedure contemplates only copies of
judgment or order of a Criminal Court to any third party. When a party concerned can invoke Rule 339 of
the Criminal Rules of Practice to obtain any portion of the record of a criminal case on payment of stamp
duty, the Court finds that such a concession also will have to be extended notwithstanding the scope of
Section 363(6) of the Code of Criminal Procedure to third parties also.
         13. Admittedly, the documents are still lying on the file of the trial Court. It has not reached the
portals of the High Court. Order XII, Rule 3 of the Rules of High Court Madras Appellate Side, 1965 will
apply only in case where the documents have come to the file of the High Court. Further, as rightly pointed
out by the learned Government Advocate (Criminal Side), the rules of the High Court Madras Appellate
Side, 1965 have not been framed by the High Court empowered under Section 363(6) of the Code of
Criminal Procedure. Therefore, I find without any hesitation that the Rules of High Court Madras
Appellate Side, 1965 does not apply to a case where a third party seeks certified copies of the records of the
trial Court which have not come to the High Court in connection with any case pending before this Court.
        14. The Right to Information Act, 2005 created a dent in the so called “privacy” being so far
maintained by the authorities concerned. The Courts also will have to be alive to the intendment of the
Right to Information Act, 2005 to share vital information to the parties concerned. Any narrower
interpretation of the law and imposition of any restriction on the right of the third party to know what is
actually going on at the portals of the criminal justice system will not advance the interest of justice. For
all these reasons, the Court finds that the documents sought for by the petitioners in C.C.No.14 of 2004,
will have to be granted to him.
        15. In view of the above, setting aside the order passed in Crl.M.P. No.1116 of 2007 in Special
C.C.No.14 of 2004 on the file of the learned Chief Judicial Magistrate, Salem, he is directed to issue
certified copies of all the documents the petitioner has sought for in Crl.M.P.No.1116 of 2007 in Special
C.C.No.14 of 2004. The petition stands allowed.
                                                                                             Petition allowed.



                                   [2008 (1) T.N.L.R. 387 (Mad) (MB)]
                                         MADRAS HIGH COURT
                                           (MADURAI BENCH)
BEFORE:
             M. CHOCKALINGAM AND S. PALANIVELU, JJ.
                       JAMES                                                               ...Appellant
                                                  Versus
                     STATE                                                              ...Respondent
                  [Criminal Appeal (MD) No. 653 of 2007, decided on 6 March, 2008]
                                                                       th


       Indian Penal Code, 1860—Sections 354, 376 and 323—Scheduled Caste and Scheduled Tribes
(Prevention of Atrocities) Act, 1989—Section 3 (2) (v)—Conviction and sentence—Legality of—
Appreciation of evidence—Alleged husband of prosecutrix turned hostile—She was not the wife of
such person at the time of evidence at all—Presence of P.W.3 and P.W.4 evident from evidence but
not         mentioned in the report—Injury alleged to have sustained but no corresponding medical
evidence is available—Medical evidence— Neither external injury nor evidence of sperms—Medical
examination after 7 days of the occurrence—No explanation offered—             Material objects were
produced along with the report but shown to have recovered after 6 days—Object not placed for
chemical           analysis—Not only flaw in investigation but also false part of the     prosecution
case—Evidence of prosecutrix not corroborated by            medical evidence—Existence of occurrence
could not be inferred either by direct evidence or by circumstances—Conviction and         sentence—
Set aside—Accused acquitted.                         (Paras 8 to 13)
       Case law.—2006 (1) MLJ (Cri) 52.
       Counsel.—Mr. R. Shanmugasundaram, Senior Counsel for Mr. S. Ravi, for the appellant; Mr. V.
Kasinathan, Additional Public Prosecutor, for the respondent.
                                              Important Point
        In a case of rape, the Court need not look for any corroboration and can sustain a conviction on the
solitary and uncorroborated testimony of the prosecutrix, but the evidence of the prosecutrix must inspire
the confidence of the Court.
                                                   JUDGMENT
        M. CHOCKALINGAM, J.—Challenge is made to a judgment of the                 Principal Sessions Division,
Karur, made in S.C.NO.102 of 2003 whereby the sole accused/appellant stood charged, tried and found
guilty as follows:
CHARGES                                GUILTY                     SENTENCE
354, IPC                               Not guilty
3(1)(xi), S.C./S.T. Act                Not guilty
376, IPC                     Guilty               7 years RI and a fine of
                                                           Rs.1000/- i/d 6 months RI
3(2)(v), SC/ST Act                     Guilty              Life imprisonment and a fine
                                                          of Rs.1000/- i.d. 6 months RI
323, IPC                     Not guilty
506(2), IPC                            Not guilty
        2. The short facts necessary for the disposal of this appeal can be stated thus:
           (a)     P.W.1 is the wife of P.W.2. They were living at Old Maniyarampatti. They belonged to
                   Chakkaliar community, which would be coming under the S.C./S.T. (Prevention of
                   Atrocities) Act. They were doing coolie work. On 14.5.2002 at about 11.00 a.m., as usual
                   she went to Ponnanaiyaru Dam for taking firewood. At that time, the accused/appellant
                   met her and informed her that she could go nearby Semmalai Adivaram where she could
                   pick firewood. Accordingly, he took her. When she was found aloof, he pushed her down
                   and committed sexual assault despite her resistance. She raised distressing cry. P.Ws.3
                   and 4 who were nearby, also heard the same. They advised her immediately to go to the
                   place and inform to the relatives. Accordingly, she returned and informed to P.W.2, her
                   husband, and accompanied by P.W.2, she went to the Panchayat President and others.
                   On their advice, they proceeded to the respondent police station. On 18.5.2002 at about
                   12 noon, when P.W.10, the Inspector of Police of the respondent police station, was on
                   duty, she gave Ex.P1, the report, on the strength of which a case came to be registered in
                   Crime No.24 of 2002 under Sections 376(b) and 506(2) of IPC. The printed FIR, Ex.P10,
                   was despatched to the Court. She also produced M.Os.1 to 3, the clothes, which were
                   worn by her at the time of occurrence.
           (b)     The Investigator, P.W.10, took up investigation, proceeded to the scene of occurrence,
                   made an inspection and prepared a rough sketch, Ex.P11. She was also sent to the
                   Government Hospital for medical examination. P.W.9, the doctor,                   medically
                   examined her and also gave a certificate which is found in Ex.P7. Pending the
                   investigation, the accused was arrested on 21.6.2002 at about 3.00 a.m., at
                   Maniyarampatti Road junction, and he was also sent for medical examination. P.W.8, the
                   doctor, examined him and found him to be potent. A certificate was issued to him which
                   is marked as Ex.P6. Further, on coming to know that she belonged to S.C.
                   community, a certificate was obtained from the Tahsildar.
           (c)     The case was taken up for further investigation by P.W.12, the Deputy Superintendent of
                   Police of the concerned         division, who further proceeded with the investigation and
                   filed the final report on completion of the investigation, under Sections 376, 506(1) and
                   323 of IPC and Section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act.
        3. The case was committed to Court of Sessions, and necessary charges were framed. In order to
substantiate the charges, the prosecution         examined 12 witnesses and also relied on 12 exhibits and 3
material objects. On completion of the evidence on the side of the prosecution, the accused was questioned
under Section 313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution
witnesses, which he flatly denied as false. No defence witness was examined. The trial Court heard the
arguments advanced and also looked into the materials available. After doing so, it found the
appellant/accused guilty as per the charges and awarded punishment as referred to above, which is the
subject matter of challenge before this Court.
         4. Advancing arguments on behalf of the appellant, the learned senior counsel
Mr.R.Shanmugasundaram made the following submissions:
       (i)   The prosecution was successful enough in proving the fact that the alleged victim belonged to
             the scheduled caste community by furnishing a certificate thereto.
      (ii)   It was a case where the prosecution relied upon the evidence of P.W.1, the victim. Even her
             husband P.W.2, was treated hostile. P.Ws.3 and 4, who, according to P.W.1, saw the
             occurrence, have also turned hostile, and thus, the entire case is rested upon the evidence of
             P.W.1. The Court can sustain a conviction merely on the evidence of P.W.1 provided if it is
             reliable and acceptable. In the instant case, there are number of circumstances pointing to the
             fact that her evidence was thoroughly false, and the entire complaint itself was with a view to
             get the monetary benefit from the Government.
     (iii)   According to Ex.P1, her marriage took place two years prior to the occurrence; but, at the
             time of the examination before the Court, she has categorically admitted that her marriage
             took place before eight years. Even her evidence would clearly reveal that she lived with
             P.W.2 for a period of one year, and thereafter, she was living for sometime with one
             Subramanian who is the younger brother of P.W.2, on marriage. During the relevant period,
             when she was examined in Court, she has well admitted that she was living with one
             Aundiappan, her sister’s husband. All would go to show that even the allegation that P.W.2
             was her husband was nothing but a falsehood.
     (iv)    According to her, at the time of occurrence, P.Ws.3 and 4 were very well available, and they
             also witnessed the occurrence, and immediately, they advised her to go to the place and
             inform to the villagers. A reading of Ex.P1 does not disclose the presence of either P.W.3 or
             P.W.4. In such circumstances, it is highly improbable that such an occurrence has taken
             place.
      (v)    In view of the sexual assault, one would naturally expect her to immediately go to the village,
             get the assistance of others and then go to the police station. The alleged occurrence has
             taken place on 14.5.2002; but, the complaint was given only on 18.5.2002. Thus, there was a
             delay of 4 days. In a case of rape, such a delay was inordinate. But, no explanation was
             forthcoming. On the contrary, she has well admitted that the accused was brought to the
             village, and he was enquired even before the complaint was lodged. But, according to the
             Investigator, the accused was arrested later when he gave a confessional statement and was
             sent for judicial remand.
     (vi)    According to her, she was pushed down and she sustained an injury on the nose, and she has
             got injuries in 4 or 5 places, and two were bleeding injuries. But, nothing is available to
             substantiate the same either by medical evidence or by any other            evidence. Hence, it
             would thoroughly falsify that part of the case.
    (vii)    Further, P.W.9, the doctor, who medically examined her, has given a categorical opinion that
             there was no indication of rape found therein.
   (viii)    In the instant case, she came out with a story to state that she has got menstrual period. The
             lower Court has also pointed out that there was menstrual period, and semen could not be
             found out. But, in the instant case, the lower Court has not pointed out that the menstrual
             period has taken place preceding the        occurrence. Under the circumstances in the absence
             of any      symptoms of sexual assault, such an occurrence could not have taken place at all.
     (ix)    It is true that P.W.2 has been examined before the Court. When he was examined, he was
             treated hostile. But, his evidence was available to indicate that on the date of occurrence, he
             was not available in the village; that when he returned to the village next day, she was found
             weeping; and that when questioned, she informed him that it was the accused who assaulted
             her when she went over to take firewood. At that juncture, the evidence of P.W.2 would
             clearly indicate that this was only manipulated.
      (x)    Further, though the complaint was given on 18.5.2002, the      material objects were recovered
             on 20.5.2002. But, Ex.P-1, the complaint, would reveal that M.O.1, blouse, M.O.2, saree,
             and M.O.3, petticoat, were all produced along with Ex.P-1. If to be so, they should have been
               recovered on 18.5.2002 itself. But, Form 95 would indicate that they were all recovered only
               on 20.5.2002; but, they were not produced on that day. When Form 95 was filed before the
               Court on 20.5.2002, it has been returned by the Court stating that it must be presented along
               with the material objects. It is curious to note that all these material objects were placed
               before the Court only on 4.7.2002, and these material objects were not at all sent for
               analysis.
     (xi)      It is pertinent to note that it was nothing but a false case, and it was only for the purpose of
               getting monetary benefit. P.W.1 has well admitted that she got the amount of Rs.25,000/-
               from the State Government, and the balance of Rs.75,000/- is to be paid by the Government.
               All would go to show that it was nothing but a false case and for monetary benefit. No one of
               the above aspects has been considered by the trial Court; but, it found him guilty, and hence,
               he is entitled for acquittal in the hands of this Court.
        5. The Court heard the learned Additional Public Prosecutor on the above contentions and made its
anxious consideration on the submissions made.
        6. The gist of the case of the prosecution as could be seen from the materials placed before the
Court, was that P.W.1, the wife of P.W.2, went for taking firewood on 14.5.2002 at about 11.00 a.m., at
Ponnainaiyaru Dam where on meeting her, the accused told her that she could pick firewood only from
Semmalai Adivaram, and so saying he took her there, pushed her down and forcibly committed sexual
assault. It is the further case of the prosecution that the same was known to P.Ws.3 and 4, and on their
advice, she came back to the village and informed to P.W.2 and then gave a complaint on 18.5.2002, and it
was proceeded accordingly. It is well settled proposition of law that in a case of rape, the Court need not
look for any corroboration. The Court is mindful of the decision of the Apex Court reported in 2006 (1)
MLJ (Cri) 52 (State of M.P. v. Dayal Sahu), wherein it has been held thus:
          “A plethora of decisions by this Court as referred to above would show that once the statement of
          the prosecutrix inspires confidence and is accepted by the Courts as such, conviction can be based
          only on the solitary evidence of the prosecutrix, unless there are compelling reasons and no
          corroboration would be required unless there are compelling reasons which necessitate the Courts
          for corroboration of her statement. Corroboration of testimony of the proseecutrix as a condition
          for judicial reliance is not a requirement of law but a        guidance of prudence under the given
          facts and circumstances. It is also noticed that minor contradictions or insignificant discrepancies
          should not be a ground for throwing out an otherwise reliable               prosecution case. Non-
          examination of the doctor and non-production of doctor’s report would not be fatal to the
          prosecution case, if the statements of the prosecutrix and other prosecution witnesses inspire
          confidence. It is also noticed that the Court while acquitting the accused on benefit of doubt
          should be cautious to see that the doubt should be a reasonable doubt and it should not reverse the
          findings of the guilt on the basis of irrelevant circumstances or mere technicalities.”
        7. From the very reading of the above decision, it would be quite clear that in a case of rape, the
Court need not look for any corroboration and can sustain a conviction on the solitary and uncorroborated
testimony of the prosecutrix.; but, the evidence of the prosecutrix must inspire the           confidence of the
Court. If it does not inspire the confidence of the Court, there was no option for the Court than to acquit
the accused. In the instant case, circumstances are so many which would caste doubt on the evidence of
P.W.1.
        8. The first line of the FIR would start that her marriage took place before two years with P.W.2.
The evidence given by her before the Court, was that her marriage took place 8 years before with P.W.2;
that she lived with him only for one year; that thereafter, she married one Subramanian, the younger brother
of P.W.2; and that during the relevant period, when she was examined before the Court, she was living with
one Aundiappan, her sister’s husband. This part of the evidence would clearly indicate that she was not the
wife of P.W.2 at the time of evidence at all.
        9. The next circumstance is that the evidence would indicate that in the nearby place of occurrence,
P.Ws.3 and 4 were present, and they heard the distressing cry of P.W.1, and further, they advised her to go
to the     village and inform the villagers. But, nowhere it is stated in Ex.P1, the report, as to the presence
of P.Ws.3 and 4 at all. P.W.1 has deposed before the Court that she sustained an injury on her nose and on
the backside including a bleeding injury also. But, no corresponding medical evidence is available. All
would go to show that not only they are exaggerations, but also they are nothing but false.
        10. As far as the alleged commission of rape by the accused is             concerned, she was examined
by P.W.9, the Medical Person, on 21.5.2002, and the doctor has given a certificate that there is no evidence
of any        external injuries and no evidence of sperms, wherefrom it cannot even be inferred that the rape
could have been committed on her. The explanation sought to be tendered by the prosecution, was that after
the commission of rape, she had the menstrual period, and hence, semen could not be found out. This
cannot be accepted for the following reasons. Firstly, according to the evidence, the menstrual period was
4 days prior to the occurrence. Further, the occurrence has taken place on 14.5.2002. She has given the
complaint on 18.5.2002. If to be so, why she was examined by the doctor on 21.5.2002, no explanation is
offered. Had it been true that such a rape has taken place, there is all possibility of any symptoms that
could be easily fixed by testing the clothes. While the occurrence has taken place on 14.5.2002, she has
given the complaint on 18.5.2002 after a period of four days.            According to Ex.P1, the report, M.Os.1
to 3, blouse, saree and petticoat respectively, were produced along with Ex.P1. But, Form 95 would
indicate that they were recovered only on 20.5.2002. When Form 95 was presented before the Court, it was
without the material objects. The Court has           returned it for production along with the material objects.
But, curiously the material objects were produced only on 4.7.2002, for the reasons best known to the
Investigator.
        11. Added circumstance is that all these material objects were not at all placed for chemical
analysis. All would go to show not only a flaw in investigation, but also false part of the prosecution case.
        12. Apart from the above, she has candidly admitted in her evidence that the accused was brought to
the village and enquired by the police even before the complaint was given, and it becomes doubtful
whether Ex.P-1 has come into existence as put forth by the prosecution.
        13. As far as the evidence of P.W.2 is concerned, though he was treated hostile, he has
categorically stated that on the day of occurrence, he was absent, and on the next day, he was informed by
P.W.1 that she was         assaulted by the accused. Now, all would go to show that not only the       evidence
of P.W.1 was not corroborated by the medical evidence, but also all attendant circumstances would clearly
reveal that it was nothing but false evidence. As pointed out by the learned senior counsel for the appellant,
a suggestion was also made to the witness by way of question before the lower Court that the case itself
was only foisted for the purpose of getting the monetary benefit from the Government. She has well
admitted in the cross-examination that she has received the amount from the State Government. In such
circumstances, it was not a case where the Court either by direct evidence or by circumstances attendant
could even infer that such an       occurrence could have taken place. The lower Court should have acquitted
the accused. Hence, the judgment of the lower Court has got to be made undone only by upsetting the
same. Accordingly, it is set aside, and the appellant is acquitted of all the charges levelled against him. He
is directed to be set at liberty forthwith unless his presence is required in connection with any other case.
The fine amount if any paid by him, will be refunded to him.
        14. In the result, this criminal appeal is allowed.
                                                                                                Appeal allowed.



                                        [2008 (1) T.N.L.R. 394 (Mad)]
                                           MADRAS HIGH COURT
BEFORE:
              S. PALANIVELU, J.
                                      K.V. RAMASAMY                                       ...Petitioner
                                               Versus
                             THE STATE OF TAMIL NADU                                   ...Respondent
                  [Criminal Appeal No. 685 of 2004, decided on 16 th February, 2008]
       Narcotic Drugs and Psychotropic Substances Act, 1985—               Section 37—Suspension of
sentence—Recovery of 22 Kg of ganja from bed room—Prosecution proved case beyond doubt—
Conviction— Petitioner sought suspension of sentence as he paid fine and is old person—Held,
charges proved beyond reasonable doubt and petitioner possessed ganja above commercial quantity
limit and it could be presumed that he is likely to commit any offence while on bail—Hence, relief
as sought cannot be granted.                             (Paras 11 to 13)
         Counsel.—Mr. R. Gandhi, Senior Counsel, for the petitioner; Mr. R. Dhanapal Raj, Spl. Public
Prosecutor for Customs, for the respondent.
                                                      JUDGMENT
         S. PALANIVELU, J.—The petitioner has filed this miscellaneous            petition praying to suspend the
sentence of 10 years’ rigorous imprisonment imposed on him in C.C.No.43 of 2003 on the file of
Additional District and Sessions Judge-cum-Special Court for Essential Commodities, Coimbatore and
enlarge him on bail, pending disposal of the Criminal Appeal No.685 of 2004.
         2. The trial Court after thoroughly narrating, considering and analysing the facts and merits of the
case, reached a conclusion that the petitioner is guilty of the charges framed.
         3. The factual matrix of the case goes thus:—
         On 23.10.2002, at about 10.30 a.m., P.W.2, the Superintendent of Customs Preventive Unit, who
is empowered to conduct search and seizure as per provisions, on a tip-off, conducted search in the
presence of two       independent witnesses and found ganja, which was spread in the petitioner’s bed room
for drying and seized the same. It was recovered under a cover of mahazar. It was totally weighing 22 Kgs.
On chemical analysis, it was         reported that the contraband was ganja.
         4. Earlier the petitioner moved this Court for identical relief in          Criminal M.P.Nos.2215 and
2216 of 2005 in C.A.No.685 of 2004 and the same suffered dismissal, since the fine was not paid, by
means of order dated 11.04.2005. Thereafter, the petitioner paid fine of Rs.1,00,000/- (Rupees One Lakh
Only) before the trial Court on 22.06.2007 and produced the receipt therefor.
         5. Learned senior counsel Mr. R. Gandhi appearing on behalf of the petitioner would vehemently
contend that since the petitioner has paid the fine and he being a senior citizen, he has to get suspension of
sentence. It is his further argument that a reading of the judgment of the trial Court would show that the
petitioner has got very good case in the appeal and it could easily be established that he is not guilty and
that there is no likelihood for him to commit such offence in future.
         6. Repelling the above said contentions, the learned standing counsel for the respondent Mr. R.
Danapalraj would submit that even though part of Section 32-A has been held as unconstitutional by the
Hon’ble Supreme Court, since the petitioner’s case could not be brought within the purview of Section 37
of NDPS Act, no suspension of sentence can be granted.
         7. In support of his contention, the learned senior counsel garnered support from a decision of the
Hon’ble Supreme Court of India reported in (2004) 13 Supreme Court Cases, Mansingh v. Union of India,
wherein it is held that since the accused had undergone more than seven years of imprisonment and in case
of his being paid the fine amount imposed by the trial Court, execution of sentence of imprisonment shall
remain suspended. In the above said case, the learned counsel for the appellant before the                 Supreme
Court had placed reliance upon a decision reported in (2000) 8 SCC Page 437, Dadu v. State of
Maharashtra. In the present case on hand, the petitioner has served three years and ten months of sentence
imposed by the trial Court. Further, in the case on hand, the contraband was above the commercial quantity
viz., 22 Kgs of ganja. Hence, the petitioner cannot take recourse to the said decision.
         8. Learned standing counsel for the respondent would place reliance upon a decision of the Hon’ble
Supreme Court, reported in 2004 (2)              Supreme 689 (Union of India v. Mahaboob Alam), in which an
earlier       decision of the Court in Dadu Didier v. Chief Secretary, Union Territory of Goa reported in
(1990) 1 SCC Page 95, has been referred which is as            follows:—
             “8.    In the case of Dadu alias Tulsidas etc. v. State of Maharashtra, 2000 (8) SCC 437, this
                    Court held that though a part of       Section 32-A, insofar as it ousts the jurisdiction of the
                    Court to suspend the sentence awarded to the convict under the Act is unconstitutional,
                    still held that the whole of the section would not be invalid and the restriction imposed by
                    the       offending section was distinct and severable. It further held that the legislative
                    mandate under that section has to be followed by the Courts while granting bail to the
                    offenders under the Act.”
        It was further observed that following the above dangerous stand arising out of narcotics trend,
though the Court has power of granting the bail in support of the language of Section 32-A, that the same
should be done only and strictly subject to the conditions spelt out in Section 37 of the Act. He also cited a
decision of this Court in 1994(2) LW Page 549, S.A.Jamal Shah v. Intelligence Officer, Directorate of
Revenue, Intelligence Tiruchirapalli, wherein the import of Section 37 of NDPS Act, as discussed by the
Supreme Court has been referred to and principles therein have been followed. In the result, this Court has
concluded that there is no justification for the suspension of sentence as far his release on bail, pending
disposal of appeal.
        9. In J.T.2001 (7) SC 560, State of Madhya Pradesh v. Kajad, the Supreme Court has enunciated
legal principle in this subject as regards the scheme of NDPS Act thus:—
            “6.     In Maktool Singh v. State of Punjab, JT 1999 (2) SC 176 : 1999 (3) SCC 321, this Court
                    considered the scope of Section 37, along with the scheme of the Act and held:
          “The only offences exempted from the purview of the aforesaid rigours on the bail provisions are
          those under Sections 26 and 27 of the Act. The former is punishable upto a maximum
          imprisonment for three years and the latter upto a maximum implementation for one year. For all
          other offences, the Court’s power to release an accused on bail during the period before conviction
          has been thus drastically curtailed by providing that if the public prosecutor opposes the bail
          application, no accused shall be released on bail, unless the Court is satisfied that there are
          reasonable grounds for believing that he is not guilty of such offence.”
       10. In this context, it is profitable to extract Section 37 of the NDPS Act, reads thus:—
        “Offences to be cognizable and non-bailable.—(1) Notwithstanding anything contained in the
        Code of Criminal Procedure, 1973—
          (a)       every offence punishable under this Act shall be cognizable
          (b)       no person accused of an offence punishable for a term of imprisonment of five years or
                    more under this Act shall be released on bail or on his own bond unless
       (i)     the public prosecutor has been given an opportunity to oppose the application for such release,
               and
      (ii)     where the public prosecutor opposes the application, the Court is satisfied that there are
               reasonable grounds for believing that he is not guilty of such offence and that he is not likely
               to commit any offence while on bail.
             (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in
                    addition to the limitations under the Code of Criminal Procedure, 1973 or any other law
                    for the time being in force, or granting of bail.”
         11. As per the above said provision, a curtail is imposed on the power of the Court in order to curb
the menace of illicit drug trafficking. It is well-settled that liberal approach in the matter of bail under the
Act is uncalled for. As per the above said provision, the Court should get satisfaction that reasonable
grounds are available to the effect that the accused is not guilty of offence and another principle is that he is
not likely to commit any        offence, while on bail. Insofar as the first part of the provision is concerned, a
thorough reading of the judgment of the trial Court would go to show that the charges have been proved
against the accused beyond reasonable doubt and for the present, this Court is unable to get satisfaction in
this regard. As for the latter part of provision, since it is established before the trial Court that the appellant
was in possession of 22 Kgs of ganja, which is above the commercial quantity limit, it could be presumed
that he is likely to commit any offence while on bail. No satisfaction is obtained in this score also.
         12. Following the well-settled principles laid down by the Apex Court, observed in this matter, the
relief of suspension of sentence could not be granted. The Supreme Court has come down heavily in the
matter of           suspension of sentences in this regard, violating the provisions of the Act by ignoring
mandatory requirements of Section 37 of NDPS Act and the                  conditions governing the grant of bail
under the Code of Criminal Procedure.
         13. In the light of the above said observations, it is held that the     petitioner is not entitled to get
suspension of sentence and the petition has to face dismissal. In fine, the petition is dismissed.
                                                                                            Petition dismissed.



                                    [2008 (1) T.N.L.R. 397 (Mad) (MB)]
                                           MADRAS HIGH COURT
                                            (MADURAI BENCH)
BEFORE:
             M. CHOCKALINGAM AND S. PALANIVELU, JJ.
                      SUBBIAH AND OTHERS                                                          ...Appellants
                                              Versus
                     STATE                                                                       ...Respondent
                [Criminal Appeal (MD) No. 465 of 2000, decided on 21 st February, 2008]
        (A) Indian Penal Code, 1860—Sections 302 read with 34—          Conviction under—Awarded
imprisonment for life—Sustainability of—Appreciation of evidence—Deceased died out of homicidal
violence—First accused attacked with aruval but not on the vital parts—Provisions of Section 326,
IPC, attracted—Other two accused persons attacked the deceased with sticks on the head—Medical
evidence—Skull injury was the cause of death—No intention to cause death—Death caused by their
act by attacking on the head—          Provisions of Section 304, Part I, IPC, attracted—Conviction
and sentence accordingly modified.                                 (Paras 7 to 15)
        (B) Criminal trial—Sentence—Imprisonment for life—Two               accused attacked on the
deceased by sticks on the head—Death due to head injury—Death caused by their act—No intention
to cause the death—Conviction under Section 304, Part I, IPC, would be just to meet the ends of
justice.                               (Paras 12 to 14)
        Counsel.—Mr. S. Subaharan, for Mr. A. Padmanabhan, for the appellant; Mr. P.N. Pandithurai,
Additional Public Prosecutor, for the respondent.
                                                     JUDGMENT
          M. CHOCKALINGAM, J.—Challenge is made to the judgment of the IInd Additional Sessions
Division, Thiruchirappalli dated 17.04.2000 made in S.C.No.4 of 2000, whereby the appellants/accused
stood charged, tried and found guilty under Sections 302 read with 34, IPC and awarded imprisonment for
life for each of them.
          2. The short facts that are necessary for the disposal of this appeal can be stated as follows:
        (i)     P.W.1 to P.W.4 and P.W.15 all belong to Perur Village, within the jurisdiction of the
                respondent police station. Due to previous enmity, on the date of occurrence, that was on
                22.9.1998 at about 8.00 p.m., when the deceased by name Andhra @ Rathinam along with
                P.W.15 was proceeding from the West to the East to board a bus to Jayamkondam, P.W.1 to
                P.W.4 were standing and chatting there. At that time, when the deceased was crossing the
                house of the first accused, A.1 just sprank an aruval from the house and his brothers, A.2 and
                A.3 came with sticks. The first accused uttering the words “I would not leave you” on so
                saying, he      attacked the deceased with aruval on different parts of the body while A.2 and
                A.3 attacked with sticks on the head. This was witnessed by PW.1 to PW.4 and PW.15.
                When they came near the occurrence place, Andhra @ Rathinam was found dead. On
                hearing alarm, all the accused fled away from the place of        occurrence.
       (ii)     P.W.15, who witnessed the occurrence proceeded to the respondent police station. He gave a
                complaint Ex.P-13 at about 11.30 p.m., to P.W.17, the Inspector of Police, Incharge of the
                said circle, who registered a case in Crime No.530/1998 under Section 302, IPC, on the
                strength of the said complaint. Printed F.I.R. Ex.P-15 along with complaint Ex.P-13 was sent
                to the Court.
      (iii)     P.W.17, the Inspector of Police, took up investigation and        proceeded to the spot, made an
                inspection at about 6.30 a.m. on 23.9.1998 and prepared an observation mahazar Ex.P-4 and
               also a rough sketch Ex.P-16. He recovered bloodstained mud M.O.5 and sample mud M.O.6
               in the presence of witnesses under the cover of mahazar Ex.P-5. The dead-body and the place
               of         occurrence were photographed through P.W.9 photographer. Photographs and the
               negatives were marked as M.O.7 and M.O.8 (series). In the presence of witnesses and
               panchayatdars, the investigator conducted inquest on the dead body. He issued an inquest
               report Ex.P-17. The dead-body was sent to the Government Hospital for the purpose of
               autopsy. PW.10 doctor, attached to the Government Hospital, Musiri, conducted autopsy on
               the dead-body. He issued post-mortem certificate Ex.P-7 wherein he found that the deceased
               would appear to have died of shock and haemorrhage as a result of injury to skull cavity,
               about 18 - 20 hours prior to post-mortem.
     (iv)      The investigator came to know that the first accused surrendered before the Judicial
               Magistrate Court No.3, Tiruchirappalli on 25.9.1998. He made an application for the police
               custody, which was ordered on 9.10.1998. At the time of investigation, he volunteered to
               give a confessional statement and the same was recorded in the presence of witnesses and the
               admissible part of that confession was marked as Ex.P-1. Pursuant to the confession, he
               produced M.O.2 aruval from a bush and the same was recovered under the cover of mahazar
               Ex.P-2. Following the same, the third accused was arrested on 12.1.1999 at Musiri Bus Stand
               at about 12.00 noon in the presence of witnesses. During the course of investigation, he also
               volunteered to give a              confessional statement and the same was recorded in the
               presence of witnesses and the admissible part of that confession was marked as Ex.P-18.
               Pursuant to the confession, he produced two sticks, which were marked as M.O.3 and M.O.4
               and the same was recovered under the cover of mahazar Ex.P-3. Both these accused were sent
               for remand. A requisition was made for the purpose of analysis of the material objects. All
               the material      objects recovered from the place of occurrence and from the dead body were
               sent for chemical analysis, which resulted in two         reports viz., chemical analysis report
               Ex.P-11 and serological report Ex.P-12.
      (v)      On completion of the investigation, P.W.17, filed a final report against the accused/appellants
               as per the charges. The case was committed to the Court of Sessions. Necessary charges were
               framed.
         3. In order to substantiate the charges levelled against the appellants/accused, the prosecution
marched 17 witnesses and relied on 18 Exhibits and 11 MOs. On completion of the evidence on the side of
the prosecution, the accused were questioned under Section 313, Cr.P.C., on the incriminating
circumstances found in the evidence of the prosecution witnesses, which was flatly denied by the
accused/appellant as false. On the side of the defence, neither witness was examined nor exhibit was
marked. The trial Court after hearing the arguments advanced by either side and on considering the
materials available on record, took the view that the prosecution had proved the case beyond reasonable
doubts and found the accused/appellant guilty of the charges and awarded life imprisonment, which is the
subject-matter of the appeal before this Court.
         4. Advancing his arguments on behalf of the appellant, Mr. S.Subaharan, learned counsel appearing
for the appellants, would submit as follows:—
       (i)     The prosecution rested its case on direct evidence. They are P.W.1 to P.W.4 and P.W.l5. Out
               of whom, P.W.1 and P.W.3 have turned hostile. A careful scrutiny of the evidence of the
               other witnesses viz., P.W.2, P.W.4 and P.W.15 would clearly indicate that their evidence is
               contrary to each other. All the witnesses have clearly spoken before the Court that the first
               accused cut the deceased on the head but no corresponding injury was found.
      (ii)     The post-mortem doctor P.W.10 has clearly opined in his post-mortem certificate Ex.P-7 that
               the injury No.8, inflicted on skull was fatal and it had caused the death. But, it is quite clear
               that it could not have been caused by aruval. Thus, that injury could not have been caused by
               A.1. Hence, he is not responsible for the cause of death.
     (iii)     However, such injury could have been caused by a stick and that too only one injury was
               noticed on the skull. All the witnesses would speak that A.2 and A.3 had attacked the
               deceased with sticks on the face repeatedly. If that be so, the prosecution was unable to fix
               liability on A.2 and A.3 also, who could not have caused the injury on skull.
    (iv)        Other ocular testimony projected by the prosecution did not corroborate with the medical
                evidence.
      (v)       The recovery of weapon of the crime viz., M.O.2 aruval, M.O.3 and M.O.4 sticks, pursuant to
                the alleged confession by A.1 and A.3 were nothing but a subsequent introduction to
                strengthen the prosecution case if possible.
     (vi)       There was no common intention among the accused to cause death of the deceased. There is
                nothing to indicate that they have acted in a common intention. A.1, who uttered the words
                that the deceased could be finished of, though wielded the aruval, he did not attack him on
                the head but inflicted injuries on the non-vital parts even as per the post-mortem certificate
                Ex.P-7. Insofar as A.2 and A.3, they attacked only with sticks. If they had common intention,
                they would also have attacked the deceased with aruval but they attacked with sticks only,
                which would go to indicate that they could not have any common intention to cause the death.
                Hence, this legal aspect has got to be considered by the Court.
        5. The Court heard the learned Additional Public Prosecutor on the above contentions.
        6. The Court paid its utmost attention to the submissions and made a thorough scrutiny on the entire
materials available on record.
        7. It is not a fact in controversy that one Andhra @ Rathinam was done to death in the incident that
took place at about 8.00 p.m., on 22.9.1998 at the place of occurrence due to homicidal violence. Following
the inquest made by the investigator, the dead-body was subjected to post-mortem by doctor P.W.10 who
has given his opinion in the post-mortem certificate Ex.P-7 that the deceased would appear to have died of
shock and haemorrhage due to injury to skull cavity. The fact that the deceased died out of homicidal
violence was never questioned by the appellants. Hence, without impediment, it has got to be factually
recorded so.
        8. In order to substantiate the charges levelled against the accused/appellants, the prosecution rested
its case on 5 occurrence witnesses, out of whom P.W.1 and P.W.3 have turned hostile. Hence, P.W.2,
P.W.4 and P.W.15 were the only available occurrence witnesses. P.W.15 was the informant. All these
three witnesses have spoken in one voice that at the time of             occurrence, they were all standing and
chatting near the occurrence place, when the deceased was proceeding from the West to the East. At that
time, when the deceased was crossing the house of A.1, the first accused wielded an aruval from the house
and A.2 and A.3 joined him and attacked with sticks. Insofar as this part, all the three witnesses have given
a cogent, reasonable evidence and their evidence was actually corroborated by the medical evidence. As
could be seen from the evidence of post-mortem doctor, P.W.10, injury found on the skull cavity of the
deceased should have been caused by sticks and other injuries should have been caused by an aruval.
Weapon of the crime has also been recovered in the presence of witnesses pursuant to the confession given
by A.1 and A.3.
        9. The contention put forth by the learned counsel for the appellants in respect of the recovery of
the weapon of the crime has got to be rejected. The prosecution has proved the case beyond reasonable
doubts that it was the accused who attacked the deceased and caused the death instantaneously.
        10. Insofar as the second line of argument in respect of the common intention, the Court is of the
considered opinion that there is nothing to indicate that the accused had any common intention to cause the
death of the deceased.
        11. The first accused had attacked with aruval but he had not             attacked the deceased on any
vital parts. Under the circumstances, the act of first accused would attract only the penal provision of
Section 326.
        12. Insofar as A.2 and A.3, according to the witnesses, they attacked the deceased on the head and
the doctor P.W.10 has opined that the skull injury was the cause for the death. Thus, both A.2 and A.3 were
responsible for the injury on the skull.
        13. Taking into consideration that A.2 and A.3 took sticks to attack the deceased, it would clearly
indicate that, it would not have been their intention to cause the death but at the same time, they have
caused the death by their act by attacking on the head.
        14. Taking into consideration the factual circumstances, the Court is of the considered opinion that,
in the instant case, the act of the accused viz., A.2 and A.3 would only attract the penal provision of 304
(Part-I) and awarding 7 years’ rigorous imprisonment would meet the ends of justice.
       15. In the result, the judgment of conviction and sentence imposed on the accused/appellants are set
aside. Instead, the appellant/A.1 is convicted under Section 326, IPC and awarded 3 years’ rigorous
imprisonment. Both A.2 and A.3 are convicted under Section 304 (Part-I), IPC and awarded 7 years’
rigorous imprisonment. The period of imprisonment already undergone by the accused/appellants shall be
given set off. It is reported that the appellants/accused are on bail. The bail bonds executed by them stands
cancelled. The Court concerned is directed to secure the presence of the appellants/accused and commit
them into jail to undergo the remaining period of sentence.
                                                                                           Order accordingly.



                                      [2008 (1) T.N.L.R. 402 (Mad)]
                                         MADRAS HIGH COURT
BEFORE:
             D. MURUGESAN AND V. PERIYA KARUPPIAH, JJ.
                                 RAMESH                                                       ...Appellant
                                                  Versus
THE STATE OF TAMIL NADU REP. BY INSPECTOR OF POLICE
                       TINDIVANAM POLICE STATION, VILLUPURAM                               ...Respondent
                     [Criminal Appeal No. 191 of 2007, decided on 25 th February, 2008]
        Indian Penal Code, 1860—Section 302—Arms Act, 1959—Sections 3 read with 25 (1-B) (a)—
Conviction and sentence—Legality of— Appreciation of evidence—Four eye-witnesses—Out of
them two turned hostile—Their evidence does not support the case of prosecution—One witness
examined to speak about the overt act attributed to accused—But she has not supported the case of
the prosecution—She is the wife of the deceased—Another witness is the father of the deceased—He
stated that he had not put any thumb-impression on the complaint—Complaint alleged to be bearing
thumb-impression of the father of the deceased lacks credibility—Evidence of single         witness left,
does not inspire confidence—Gun, weapon of assault—Licensed one and the licence stands in the
name of co-accused who was acquitted by the trial Judge—Prosecution not successful in
establishing the case that gun in question was used by the accused—Licensing authority himself was
not sure about the fact whether the gun was licensed or unlicensed—Investigating Officer is not
competent to speak about the same—Conviction and sentence awarded is unsustainable—Set aside—
Accused is released forthwith.
                                                                                        (Paras 13 to 19)
        Case law.—1976 SCC (Cri) 160; 2001 SCC (Cri) 323; 1976 SCC (Cri) 527; 2000 SCC (Cri) 113;
2006 (1) SCC 661; 2007 (1) SCC (Cri) 28; 1980 SCC (Cri) 985.
        Counsel.—Mr. K. V. Sridharan, for the appellant; Mr. P. Kumaresan, Additional Public
Prosecutor, for the respondent.
                                              Important Point
       As the licensing authority himself was not sure about the fact whether the gun recovered was
licensed or unlicensed, the Investigating Officer is not competent to speak about the same.
                                                 JUDGMENT
       D. MURUGESAN, J.—The appellant is A.1. He was put up on trial along with A.2 in S.C.No.51 of
2006 on the file of the learned Additional District and Sessions Judge, Tindivanam. By the judgment dated
10.1.2007, he was found guilty for the offences under Section 302, I.P.C. and under Section 3 read with
25(1-B)(a) of the Arms Act. He was sentenced to undergo life imprisonment and to pay a fine of
Rs.1,000/-, in default to undergo rigorous imprisonment for three months for the offence under Section 302,
I.P.C and to undergo one year’s rigorous imprisonment and to pay a fine of Rs.1,000/- and in default to
undergo rigorous imprisonment for three months for the offence under Section 3 read with 25 (1-B)(a) of
the Arms Act. The learned trial Judge however acquitted A.2.
        2. The case of the prosecution is that P.W.1 is the father of the       deceased and he is a resident of
Nathamedu at Tindivanam. P.W.3 is the wife of P.W.1. P.W.4 is the daughter of the second accused and
the sister of the first accused and the marriage between deceased and P.W.4 took place about eight years
prior to the date of occurrence. From the date of marriage, both the deceased and P.W.4 were living
separately in a house. There was often quarrel between the husband and wife and, therefore, P.W.4 left the
marital house to join with her parents.
        3. In order to bring back his wife P.W.4, the deceased went to his         in-laws, house at 12 to 12.30
midnight on 12/13.4.2005. When he requested his wife to come back with him, the second accused shouted
at the deceased as to how he could come and call back his wife when she did not like to live with him. As
the quarrel persisted, A.2 asked his son A.1 to pick up the gun belonging to him and shoot the deceased.
Hence, the first accused/the       appellant herein shot the deceased on his chest followed by P.W.4, who is
none other than the wife of the deceased and one Padma, who was also residing there, attacking the
deceased with stick on his head. Though the deceased tried to escape from the scene, due to pellet injuries
on his chest, he could not run and fell down and ultimately died on the spot. The above incident was
witnessed by P.W.1, P.W.2, P.W.3, P.W.4 - a neighbour and P.W.5. P.W.1 thereafter went to Tindivanam
Police Station and gave a complaint Ex.P-28 to P.W.16, the Sub-Inspector of Police, Tindivanam Police
Station. The said complaint was registered in Crime No.554 of 2005 under Sections 341, 294(b) and 302,
I.P.C. read with Section 25(1-B)(a) and 3(1) of the Arms Act. He prepared Ex.P-29, the printed First
Information Report and submitted to Judicial Magistrate No.I, Tindivanam and sent the other copies to his
Superior Officers.
        4. On receipt of the copy of the First Information Report, P.W.17, the Inspector of Police,
Tindivanam Police Station took up the investigation and proceeded to the scene of occurrence on 13.4.2005
and prepared an observation mahazar, Ex.P-30 and drew a rough sketch Ex.P.31 in the presence of P.Ws.6
and 11. He also seized blood stained earth - M.O.10 and sample earth - M.O.11 under Ex.P-32, in the
presence of the same witnesses and P.W.9, the Scientific Assistant, Regional Forensic Science Laboratory,
Villupuram. He conducted inquest over the dead body in the presence of panchayatdars and witnesses and
Ex.P-33 is the inquest report. At that time he examined P.Ws.1 to 5 and recorded their statements. Then he
sent Ex.P-5 requisition to the Medical Officer, Government Hospital, Tindivanam though P.W.13 to
conduct post-mortem on the body of the deceased. In the same requisition he has also mentioned to
preserve the pellets found in the body of the      deceased as well as viscera for chemical examination.
        5. P.W.8, the Senior Civil Surgeon attached to the Government           Hospital, Tindivanam on receipt
of Ex.P-5 requisition conducted post mortem at about 1.00 p.m. on the body of the deceased, which was
identified by P.W.13, the Head Constable. P.W.9 took M.Os.6 and 7 photographs on the chest portion of
the deceased and had advised the Medical Officer to collect the tissues in and around the pellet injuries for
analysis. P.W.8 noted the following injuries:—
          “External Injuries:—
            (1) A pellet injury scatterly arranged with about 135 black charred spots each measuring
                    about 0.3 cm x 0.3 cm seen on both sides of the chest wall below the clavicles, about 3
                    cm below Right and Left clavicles and on right arm; about three in number. The chest
                    wall around the pellet injury is cherry red in colour and a circular zone of echymosis seen
                    around the entrance wound. A tatoo mark Jayanthi seen on Right side of the chest below
                    clavicles. Fluid blood oozing from entrance wound of pellet injury.
            (2) Contusion of about 2 x 1 cm on left parietal region.
               Internal Examination:—
               Head and Neck: No fracture of skull bones. Membranes intact. Brain about 1400 grams and
               congested.
          Hyoid Bone:— Intact. Thorax:—No fracture of ribs on exploration of pellet injury wound, inter
          costal muscles were present pierced and teared by numerous pellets and inter costal muscles were
          charred and reddish in colour about 1500 ml. of fluid blood (Haemothorax) present in the thoracic
          cavity. Heart:—Anterior wall of the heart was penetrated by about 8 pellets. On c/s. Clotted
          blood present in the left chamber of the heart. Lungs:—Right lung about 450 grams and pierced
          by many pellets and reddish in colour. Left lung about 400 grams and pierced by many pellets and
          reddish in colour. On c/s of lungs about 20-30 black coloured shots have been recovered and
          collected for chemical analysis. Some of them were covered by        tissues. Abdomen:—Stomach:
          Contained about 100 ml of undigested food particles. Liver:—about 1400 grams on C/s.
          Congested. Spleen: 175 grams congested on c/s. Kidneys:—150 grams each, congested on c/s.
          Small Intestine: Distended with air. Bladder: Empty on C/s. (n.c.) organs were normal. Pelvis:
          Intact. Spinal Column normal.”
        P.W.8 issued the post-mortem certificate, Ex.P-9 with her opinion that the deceased would appear
to have died of shock and haemorrhage and         irreversible shock due to injuries sustained by him to the
chest wall-vital organs—lungs and heart about 10 to 18 hours prior to autopsy. After post-mortem P.W.13
received M.O.9, the blood stained lungi which was found on the body of the deceased and handed over the
same to P.W.17.
        6. P.W.17, sent Ex.P-21 requisition to Judicial Magistrate No.1, Tindivanam to send the viscera
preserved by P.W.8 for chemical analysis. P.W.15 obtained orders from Judicial Magistrate No.1 and sent
the same for chemical analysis through Ex.P-22. Exs.P-6 to P.8 are the Chemical Examiners’ Reports.
P.W.17 arrested both the accused at 1.00 p.m. on 13.4.290905 at Tindivanam to Marakkanam Cross Road,
through Ex.P-34 Arrest card and examined them in the presence of P.W.7 and P.W.12. At that time the first
accused gave a voluntary confession statement, the admissible portion of which is Ex.P-3. Then the first
accused took P.W.17 and his team along with the witnesses to a lake bund near Narikuravar colony and
identified M.Os.5, 1, 2, 3 and 12 and the same were seized under Ex.P-17 in the presence of the same
witnesses. From there he took P.W.17 and his team to his house at Narikuravar Colony and produced 650
gm weighing pellets used for the gun, which was seized under Ex.P-18 in the presence of the same
witnesses. Out of 650 grams pellets P.W.17 has taken 50 grams - M.O.4 series for chemical examination
and the remaining are M.O.13 series. Then the accused were taken to the police station and sent for judicial
remand. P.W.15 is the Head Clerk in Judicial Magistrate Court No.I, Tindivanam. In his evidence he has
deposed that on 25.4.2005 P.W.17 sent Ex.P-23 requisition to subject the case properties for chemical
examination and the same were sent thorough Ex.P-24 letter. Ex.P-25 is the Chemical Examiner’s Report
and Exs.P-27 and P-8 are the Serologists’ Reports received from the Laboratory.
        7. P.W.17 submitted a requisition Ex.P-35 on 25.4.2005 to Judicial Magistrate No.I, Tindivanam
to send M.Os.1 to 4, 6 to 8 for chemical        examination. After obtaining orders, he sent the same to the
Director of Forensic Science Laboratory, Chennai for chemical examination. P.W.10 is the Scientist
Assistant Grade-I and Fire Arms Expert, who after examining the case properties received by him issued
Ex.P-8 report. P.W.17 examined P.Ws.8 and 10 on 8.9.2005 and recorded their statements. Then he
addressed to the District Collector, Villupuram through the District Superintendent of Police to know
whether the accused are having licence to use the Gun. P.W.14 the District Collector, Villupuram District,
on receipt of Ex.P-19 requisition from the Superintendent of Police seeking prosecution, after perusing the
records and after obtaining opinion from the Assistant Director of            Prosecution, accorded Ex.P-20
prosecution sanction order under Section 39(3) of the Arms Act to prosecute the accused. P.W.17 also
examined P.W.14 and recorded his statement. After completing the investigation, P.W.17 laid the final
report against the accused before the Court.
        8. To prove its case, the prosecution had examined P.W.1 to 17 and marked Exs.P-1 to P.35 apart
from producing M.Os.1 to 13. When the           accused were questioned under Section 313 of the Code of
Criminal          Procedure as to the incriminating materials appearing against them, they denied the entire
case of the prosecution as false. However, the learned trial Judge had accepted the case of the prosecution
as against A.1/the appellant herein; found him guilty, convicted and sentenced him as stated earlier. The
learned trial Judge on the other hand did not accept the case of the prosecution in so far as A.2 is concerned
and acquitted him. Questioning the conviction and sentence, the present appeal has been preferred by A.1
        9. We have heard Mr. K.V. Sridharan, learned counsel appearing for the appellant and Mr. P.
Kumaresan, learned Additional Public Prosecutor for the State.
        10. Mr. K.V. Sridharan, learned counsel would submit that the         presence of P.Ws.1 and 3, who
were examined to speak about the occurrence as eye-witnesses, is highly doubtful. He would submit that
though P.W.16, the Sub-Inspector of Police had deposed that P.W.1, the father of the             deceased had
lodged the complaint at about 2.30 p.m. on 13.4.2005 and after registering the complaint he obtained his
thumb-impression, the evidence of P.W.1 is otherwise. According to P.W.1 though he went to the police
station and lodged the complaint, he specifically disowns any thumb impression obtained by P.W.16.
Therefore, the complaint Ex.P-28 had not been            established by the prosecution, through the author of
the scribe. He would also submit that even the copy of the complaint was not marked through P.W.1. But it
was marked only through P.W.16, the Sub-Inspector of Police who, recorded the First Information Report.
Neither the complaint nor the evidence of P.W.1 indicate the presence of the other eye-witness namely,
P.W.3. Hence, the learned counsel would submit that it would be highly unreliable to place any conviction
on the accused on the basis of the evidence of P.W.1. In so far as the evidence of P.W.3 is concerned,
learned counsel would submit that her presence is doubtful, as her presence was not spoken to by P.W.1,
the other eye-witness. Further, even in the inquest report, her presence was not mentioned. Though P.W.3
had spoken about the head injury inflicted on the deceased by P.W.4 and one Padma with stick, the post-
mortem doctor, P.W.8 has reported that there is no such injury on the head. Hence, the learned counsel
would submit that the presence of P.W.3 in the scene of occurrence is doubtful. Learned counsel would
also submit that yet another witness examined on behalf of the prosecution namely, P.W.2 had turned
hostile and he had not supported the case of the prosecution. P.W.4, the wife of the deceased was also
examined to speak about the         occurrence but she also turned hostile. Learned counsel also submits that
the opinion of the Forensic Expert as to the finger print of A.1 having not found in the gun, the use of the
gun by A.1 itself is doubtful. He would also submit that even though P.W.9 had recommended to send the
gun for      examination of a finger print expert, the investigating officer had not done so, which throwing
serious doubt about the use of the gun by A.1/the          appellant. He would also submit that the Ballistic
Expert’s report also does not support the case of the prosecution. In this regard he would draw our
attention through the evidence of P.W.10, the Ballistic Expert, where he had stated that there was no
evidence that the gun was fired in close range and he could not see any small particles of explosives in the
gun, if the gun is fired in the close range. Learned counsel would also argue that the prosecution had failed
to establish that M.O.1, the gun was a prohibited arm to bring home the offence under the provisions of the
Arms Act. He would submit that even the District Collector P.W.14 had not stated as to whether the gun
was licensed or unlicensed. In the absence of the same, the Gun cannot be considered to be a prohibited
arm and, therefore, the charge under the provisions of the Arms Act itself is unsustainable.
        11. Mr. P. Kumaresan, learned Additional Public Prosecutor              appearing for the State on the
other hand submits that the evidence of P.Ws.1 and 3 should be accepted and for the said statement, the
learned Additional Public Prosecutor would draw our attention to the fact that though P.W.1 had disowned
his thumb impression in the complaint Ex.P-28, he had            admitted the contents of the complaint, in his
evidence. He had also spoken about the occurrence and had specifically implicated the accused. Learned
counsel would also submit that the evidence of P.W.3 has been rightly             accepted by the learned trial
Judge as she has also deposed of having seen the first accused/appellant shooting at the deceased on his
chest. He would further submit that the conduct of inquest is only to find out the cause of death and the
mere fact that the name of P.W.3 has not been mentioned in the inquest report would not be a ground to
disbelieve her evidence of having seen the occurrence. Learned Additional Public Prosecutor would also
submit that the arrest and recovery has been established through the         attesting witness namely, P.W.7,
the Village Administrative Officer. Having regard to the evidence of P.Ws.1 and 3 as to the occurrence and
also as to the specific overt acts caused by A.1 on the deceased coupled with the evidence of P.W.7, the
Village Administrative Officer as to the recovery of M.O.1, the learned trial Judge had correctly come to
the conclusion as to the guilt of the appellant/first accused and, therefore, had rightly convicted him.
Insofar as the submission as to the Arms Act, learned Additional Public Prosecutor would submit that the
fact remains that the gun was licensed in favour of A.2 and the same has been unauthorisedly used by A.1.
The         Investigating Officer had deposed that he had made an investigation as to whether the gun was
licensed or not, through the District Collector and he received a letter Ex.P-20 from the District Collector
stating that the gun was unlicensed. He would further submit that in the absence of any other        evidence,
the evidence of the Investigating Officer can be accepted in this regard.
       12. We have carefully considered the arguments advanced on either side. Law as to how the
evidence of a hostile witness can be considered is laid down by the Apex Court in the judgment reported in
1976 S.C.C.(Cri.) 160 (Satpaul v. Delhi Administration) wherein it has been held as follows:—
         “Even in a criminal prosecution when a witness is cross-examined and contradicted with the leave
         of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as
         washed off the record altogether. It is for the judge of fact to consider in each case whether as a
         result of such cross-examination and contradiction, the witness stands thoroughly discredited or
         can still be      believed in regard to a part of his testimony. If the Judge finds that in the process
         the credit of the witness has not been completely shaken, he may after reading and considering the
         evidence of the witness, as a whole, with due caution and care, accept, in the light of the other
         evidence on the record, that part of his testimony which he finds to be creditworthy and act upon
         it. If in a given case, the whole of the testimony of the witness is impugned, and in the process,
         the       witness stands squarely and totally discredited, the Judge should, as a matter of prudence,
         discard his evidence in toto.”
       The Apex Court in the subsequent judgment reported in 2001 S.C.C. (Cri.) 323 (Gura Singh v. State
of Rajasthan) has also held as follows:—
         “It is a misconceived notion that merely because a witness is            declared hostile, his entire
         evidence should be excluded or rendered unworthy of consideration. ......In a criminal trial where a
         prosecution witness is cross examined and contradicted with the leave of the Court by the party
         calling him for evidence cannot, as a matter of general rule, be treated as washed off the record
         altogether. it is for the Court of fact to consider in each case whether as a result of such cross-
         examination and contradiction the witness stands discredited or can still be believed in regard to
         any part of his testimony. In appreciate cases the Court can rely upon the part of testimony of such
         witness if that part of the deposition is found to be credit worthy.”
        The very same view has been taken in the judgments reported in 1976 S.C.C. (Cri.) 527 (Dalbir
Kaur v. State of Punjab) and 2000 S.C.C. (Cri.) 113 (Raman Bhai @ Naranbhai Patel v. State of Gujarat).
Law on the above is also reiterated in the judgment reported in 2006(1) S.C.C. (Cri.) 661 (Radha Mohan
Singh v. State of Uttar Pradesh).
            “7.    .....It is well settled that the evidence of the prosecution witness cannot be rejected in
                   toto merely because the          prosecution chose to treat him as hostile and cross-examined
                   him. The evidence of such witness cannot be treated as              effaced or washed off the
                   record altogether but the same can be accepted to the extent his version is found to be
                   dependable on a careful scrutiny thereof.”
        Recently the judgments in Sat Paul’s case and Gura Singh’s case were quoted with approval by the
Apex Court in the judgment reported in 2007(1) S.C.C. (Cri.) 28 (Santhosh Kumar v. State of Madhya
Pradesh).
        13. Keeping the above Law in mind, the evidence of the hostile           witnesses should be considered.
The prosecution had examined P.Ws.1 to 4 as eye-witnesses. P.Ws.2 and 4 were examined to speak about
the specific overt act said to have been caused by A.1 in firing the deceased on his chest with M.O.1. Both
of them have turned hostile and a careful scrutiny of their evidence does not support the case of the
prosecution. On the other hand P.W.2 in her re-examination made on behalf of the accused had stated that
she heard that the deceased was shot down by one Iyyampettai namely, P.W.1. This evidence of P.W.2
supports the defence taken by the accused during the trial wherein even P.W.1 was questioned that it was
P.W.1, who had fired the deceased and the case was foisted on the accused to save him. Hence, the
evidence of P.W.2 no way supports the case of the prosecution. P.W.4, the another hostile witness is none
other than the wife of the         deceased. Though she has been examined to speak about the actual specific
over act attributed to A.1, she has not supported the case of the prosecution. P.W.1 had in fact stated that
P.W.4 had also assaulted the deceased              indicating her presence at the time of occurrence. However,
her evidence is otherwise, not only having seen A.1 shooting the deceased but also the                prosecution
theory that she had also attacked the deceased, is falsified, as a necessary consequence the evidence of
P.W.2 is also false.
        14. This leaves us, the remaining two witnesses namely, P.W.1 and P.W.3. P.W.1 is the father of
the deceased. As rightly pointed out by the learned counsel for the appellant, P.W.1 had specifically stated
in his       evidence that no thumb-impression was obtained by P.W.16. Of course the learned Additional
Public Prosecutor had submitted that P.W.1 had not           disowned the contents of Ex.P-28 and therefore his
evidence can be accepted. We could have accepted the said statement, in the event, P.W.1 had come to the
Court and accepted the contents of the complaint as such. But in the given case, he had completely
contradicted the evidence of P.W.16 by stating that he had not even put any thumb impression on the
complaint. In any event, the complaint that bears the thumb impression of P.W.1 lacks                  credibility.
While we refer to the above, we may reasonably come to the conclusion that the contents of the complaint
Ex.P-28 also cannot be taken into consideration. In that context the submission of the learned Public
Prosecutor that insofar as the contents are accepted, the evidence of P.W.1 cannot be discarded, cannot be
accepted. It has also been settled that if the genesis of the First Information Report itself is doubtful or
fabricated, the entire prosecution case must be disbelieved. This Law is held by the Apex Court in the
judgment reported in 1980 S.C.C. (Cri.) 985 (Murudanal Augusti v. State of Kerala). If the evidence of
P.W.1 is eschewed from consideration then we have left only with the evidence of P.W.3.
        15. The presence of P.W.3 is highly doubtful for the following         reasons:—
        Though P.W.1, who is said to have lodged the complaint immediately after the occurrence has not
referred the name of P.W.3 having present at the time of occurrence in the complaint, yet, for the first time
in Court P.W.1 makes an attempt to make an improvement by stating that she was also present at the scene
of occurrence. Secondly the inquest was conducted immediately after the occurrence and during the course
of inquest, the presence of P.W.3 was not noticed by the Investigating Officer. Of course the learned
Additional Public Prosecutor would be right in submitting that the inquest is only for the purpose of
ascertaining the cause of death and not for any other purpose. But to find out as to the presence of a
witness, the      reference to the name of the witness may throw some light in support of the prosecution,
as to the evidence spoken to by the said witness of having witnessed the occurrence. Only to that limited
extent, we are inclined to consider the evidence of the Investigating Officer, who conducted the      inquest.
Therefore, non-reference the name of P.W.3 in the inquest report coupled with the fact that her name does
not finds place in the complaint Ex.P-28, leads us to doubt the presence of P.W.3 in the scene of
occurrence. Hence, insofar as the evidence of the four eye witnesses are concerned, there is nothing to
implicate the accused in the commission of the offence.
        16. Further the evidence of P.Ws.1 and 3 could be discarded for the simple reason that both of them
have spoken to the fact that the deceased was attacked by both the accused and one Padma along with
P.W.4 on his head with stick. This evidence is not supported by medical evidence. P.W.8, the Post-mortem
Doctor while certifying the injuries had not referred to any injury sustained by the deceased on the head. In
the absence of any         corresponding injury on the head of the deceased, the evidence of P.Ws.1 and 3
that P.W.4 and one Padma assaulted the deceased with stick on his head cannot be believed.
        17. We now come to the recovery, which is much spoken to by P.W.7, the Village Administrative
Officer. Law on the recovery is by now well settled by the Apex Court. The conviction and sentence
cannot be based solely on the basis of recovery, as the recovery would be only an additional circumstance
to support the prosecution case let in through the other evidence. The prosecution had not established the
recovery to the satisfaction of the Court. Firstly the prosecution has not marked the recovery mahazar for
the gun and only the signature of P.W.7, the Village Administrative Officer was marked as Ex.P-4. It is
seen from the records that on 13.4.2005 the first accused/appellant had produced a gun from the hut. The
evidence of P.W.1 is that he has also produced a gun to the police station during the course of investigation.
In these circumstances, the burden on the prosecution is heavy to establish that the Gun which was actually
used by the first accused/        appellant was the one seized from the accused. But, in the absence of any
actual seizure mahazar and only the signature of P.W.7 was marked as Ex. P-4, we are not inclined to
accept the recovery as well. M.O.1 is the iron barrel portion of the country made gun. M.O.2 is the broken
wooden piece butt attached to the iron pipe. Though M.Os.1 and 2 had been produced, since no mahazar
had been marked, in our considered opinion, the same is fatal to the prosecution case. Except the evidence
of P.Ws.1 to 4 as eye-witnesses and the recovery aspect, no other materials are produced before the Court
to implicate the accused in offence of murder. Hence, we are of the considered view that the prosecution
had not proved the case beyond reasonable doubt as to the commission of the offence by the first
accused/appellant.
        18. Insofar as the charges relating to the provisions of the Arms Act is concerned, the evidence of
P.W.14, the District Collector is relevant. The burden is on the prosecution to prove that M.O.1 is the
prohibited weapon, to bring home the offence under the provisions of the Arms Act. But the same has not
been established by the prosecution. On the contrary, the prosecution has come forward with a case that
the gun M.O.1 was a licensed one and the licence stands in the name of A.2. All that has been put-forth
before the Court is that the licensed gun had been taken and used by A.1, who is the son of A.2, for the
commission of the offence. The District         Collector has not deposed that the gun was either licensed or
unlicensed. It must be kept in mind that the District Collector is the authority to grant licence under the
Arms Act. He being the licensing authority was not heard as to whether the gun said to have been used in
the commission of offence was either licensed or unlicensed and if the gun was licensed, it was in whose
name. Further, as we have found that the prosecution has not succeeded in its case to prove that the gun in
question was, in fact, used by A.1 for the commission of the offence, the charge under the Arms Act is not
established. The argument of the learned Public Prosecutor that in the absence of any other evidence, the
evidence of the Investigating Officer alone would be           sufficient for sustaining a conviction, in our
considered opinion, cannot be accepted on the facts of this case. As the licensing authority himself was not
sure about the fact whether the gun was licensed or unlicensed, the              Investigating Officer is not
competent to speak about the same. Hence, it would be highly unsafe to rely upon the evidence of the
Investigating Officer alone to come to the conclusion that the gun was a licensed one.
        19. For all these reasons, we find that the judgment of Court below in holding the first
accused/appellant guilty cannot be sustained and                   consequently, the conviction and sentence
imposed on the appellant/A1 by the trial Court are set aside and the criminal appeal is allowed. The
appellant/A.1 is released forthwith, if his presence is not required in       connection with any other case.
Fine amount, if any, paid is ordered to be refunded. In so far as the material objects are concerned,
M.Os.1,2,3,4,5,8,12 and 13 are ordered to be handed over to the Arsenal. M.O.6 and M.O.7 are ordered to
be kept along with the records. M.O.9, M.O.10 and M.O.11 are ordered to be destroyed after the period of
appeal to the Supreme Court expires.
                                                                                              Appeal allowed.



                                   [2008 (1) T.N.L.R. 412 (Mad) (MB)]
                                          MADRAS HIGH COURT
                                           (MADURAI BENCH)
BEFORE:
           M. CHOCKALINGAM AND S. PALANIVELU, JJ.
                     CHINNAMANI @ MURUGAN                                                        ...Appellant
                                             Versus
THE INSPECTOR OF POLICE, MANUR
                   POLICE STATION, DISTT. TIRUNELVELI                                          ...Respondent
               [Criminal Appeal (MD) No. 29 of 2006, decided on 30 th January, 2008]
       Indian Penal Code, 1860—Sections 302 and 307—Conviction and sentence under—
Sustainability of—Appreciation of evidence—      Accused had not completed his 18 years of age at
the time of the alleged occurrence—Evident from the school certificate—Accused initially neither
produced before the competent authority as          prescribed under Juvenile Justice (Care and
Protection of Children) Act, 2000 nor tried by the Juvenile Justice Board—Trial by Principal
Sessions Court got vitiated—Course to be adopted in such circumstances—Accused has presently
completed 23 years—Trial again by the Juvenile Justice Board is not lawful—Accused set at liberty
considering the fact—Appeal stands disposed off.
                                                                                  (Paras 5 to 10)
       Case law.—(2003) 10 SCC 291; 2000 (II) CTC 123; AIR 1985 SC 118.
       Counsel.—Mr. G. Bhagavath Singh, for the appellant; Mr. P.N. Pandithurai, Addl. Public
Prosecutor, for the respondent.
                                               Important Point
      When the Act provides for enquiry by Juvenile Justice Board with regard to the offence reportedly
committed by a juvenile in conflict with law, the trial by the Sessions Court is not sustainable.
                                               JUDGMENT
       S. PALANIVELU, J.—Challenge is made to the judgment of the learned Principal Sessions Judge,
Tirunelveli, dated 23.03.2004, made in Sessions Case No.143/2003, wherein the appellant/sole accused has
been found guilty under Sections 302 and 307, IPC, convicted thereunder and sentenced to undergo life
imprisonment and to pay a fine of Rs.1,000/-, in default to  undergo six months’ rigorous imprisonment
for the charge under Section 302, IPC and seven years rigorous imprisonment and to pay a fine of
Rs.1000/- with default sentence six months R.I. for the charge under Section 307, IPC.
        2. The first charge goes to the effect that the accused used to have tea in the Tea Stall run by the
deceased Malaiyappan and his wife Petchiammal in Sethurayanputhur Middle Street promising to pay the
money later; that on 30.01.2002 afternoon while Petchiammal was in her Tea Stall, as usual, the accused
asked her to provide tea to him, for which she refused; that on the same day at about 5.00 p.m. again the
accused demanded her to give tea and on that occasion also she refused; that the accused abused her; that
since the deceased Malaiyappan reprimanded, the accused got enraged with this, the accused cut him by
means of an aruval on his left side head, left eye, left cheek, left side forehead, left wrist and left little
finger indiscriminately, causing his death despite efforts taken for treatment.
        The next charge framed against the accused is that at the time of the above said occurrence, the
accused assaulted Petchiammal also by means of an aruval on her right upper hand and chest and causing
injuries and hence he is liable to be punished under Section 307, IPC.
        3. The accused was produced before the Judicial Magistrate No.V,Tirunelveli, who remanded him
to judicial custody on 01.02.2002. Thereafter, he came out on bail, trial was conducted, in which he was
found guilty of the charges aforesaid and imposed with the punishments as stated above.
        4. Learned counsel for the appellant/accused would submit that on the date of the alleged
commission of offence, the appellant had not completed the age of 18 years and hence he was a juvenile in
conflict with law defined under Section 2(l) of the Juvenile Justice (Care and Protection of Children) Act,
2000 (hereinafter referred to as “the Act”) and hence he should have been tried by the Juvenile Justice
Board constituted under the provisions of the said Act.
        5. A copy of the certificate issued by the Headmaster of Sri Manthiramoorthy Higher Secondary
School, Tirunelveli Town, has been produced, in which, it is stated that the appellant had studied 6th
standard in the said school during 1997-1998 and his date of birth was 04.05.1984. This Court on
11.12.2007, while dealing with the appeal and setting the appellant free on his executing a personal bond
for a sum of Rs.5000/- to the satisfaction of Juvenile Justice Board, Tirunelveli, directed the Board to hold
an enquiry to decide the age of the appellant as on 30.01.2002 and submit a report and accordingly upon an
enquiry, the Juvenile Justice Board submitted a report on 09.01.2008 stating that as on 30.01.2002 the
appellant had completed 17 years, 8 months and 26 days considering his date of birth as 04.05.1984 as
mentioned in the school certificate. Hence, it is clear that the appellant had not completed his 18 years of
age at the time of the alleged occurrence. The Hon’ble Supreme Court in the decision reported in (2003) 10
SCC 291, Khunnu Yadav v. Rajesh Madurya and another, while discussing the provisions of the Juvenile
Justice Act, 1986 has held that the crucial date for determining the status of a person as juvenile is the date
when the       accused was brought before the competent authority and not the date when the offence was
committed.
        6. An obligation has been cast on the Court that where such a plea is raised having regard to the
beneficial nature of the socially oriented legislation, the same should be examined with great care. When
the Act provides for enquiry by Juvenile Justice Board with regard to the offences reportedly committed by
a juvenile in conflict with law, the trial by the Sessions Court is not sustainable. In the decision reported in
2000 (II) CTC 123, Ramasamy v. State, a Division Bench of this Court, while discussing about the
provisions contained in Section 10(A) of the Tamil Nadu Borstal Schools Act and the Indian Penal Code,
has categorically held that in any case, an adolescent offender, who was convicted for a capital offence and
sentenced to imprisonment for life, in respect of whom an order is made under Section 10(A) of the Tamil
Nadu Borstal Schools Act, can be detained in a Borstal School,            following a decision rendered by the
Apex Court in Elumalai v. State of Tamil Nadu, AIR 1985 SC 118. The Division Bench, after discussing
the merits of the case, quashed the sentence sustaining the conviction on the appellant therein.
        7. Coming to the circumstances under which the appellant herein was dealt with by the lower
Courts, he was initially not produced before the competent authority as prescribed under the Act and he
was not tried by the Juvenile Justice Board. For these reasons, the trial in S.C.No.143/2003 by the
Principal Sessions Court, Tirunelveli, got vitiated.
        8. The next question arises for consideration is, what course of action has got to be adopted on
account of vitiation of the trial. It may be             considered whether the case can be forwarded to the
Juvenile Justice Board to conduct the trial adopting the procedures contained in the Act, but that exercise
could not also be undertaken in view of the fact that the appellant has presently completed 23 years of age.
Similarly, the matter to be tried again by the Juvenile Justice Board is not lawful.
        9. In the light of the above observations, we are of the considered opinion that the trial in
S.C.No.143/2003 on the file of Principal Sessions Court, Tirunelveli, is vitiated and no further proceedings
could be                undertaken in this matter, since the appellant has completed 23 years of age and,
therefore, the appellant is set at liberty.
        10. With the aforesaid observation, the appeal stands disposed off. M.P.1/2007 is closed.
                                                                                        Appeal disposed off.

                                   [2008 (1) T.N.L.R. 415 (Mad) (MB)]
                                         MADRAS HIGH COURT
                                           (MADURAI BENCH)
BEFORE:
             A. SELVAM, J.
M/S. J.K. INDUSTRIES LTD. REP.
                                 BY ITS ASSISTANT AREA MANAGER                                   ...Appellant
                                                   Versus
                         BABU                                                                  ...Respondent
                       [Criminal Appeal No. 1389 of 2003, decided on 24 March, 2008]
                                                                         th


        Criminal Procedure Code, 1973—Section 378—Negotiable                      Instruments Act, 1881—
Sections 138 read with Section 142—               Acquittal under—Complaint not been properly filed—
Assistant Area Manager of the complainant has no locus standi to file complaint—Finding recorded
by appellate Court—Conviction and sentence awarded by trial Court set aside—Legality of—Board
of Directors have delegated power only to the Regional Manager—No power delegated to Assistant
Area Manager—Regional Manager is the delegate of the Board of Directors—He is not authorised to
delegate his power or duty in favour of the Assistant Area Manager—Complaint has not been
properly filed—No interference warranted—Appeal dismissed.
                                                                                            (Paras 14 to 16)
        Case law.—1997 (2) Crimes 115; 2005 (2) CTC 417.
        Counsel.—M/s. Aiyer and Dolia, for the appellant; Mr. A. Jayaramachandran, for the respondent.
                                               Important Point
        An agent cannot delegate his power or duties to another in whole or in part without the express
authority of the principal or authority derived from the statute.
                                                  JUDGMENT
        A. SELVAM, J.—The judgment dated 14.02.2001 passed in Criminal Appeal No.48 of 1998, by the
Additional District and Sessions Court (Fast Track Court No.1), Madurai, is now under challenge.
        2. The appellant herein as complainant has lodged the complaint in question under Sections 138
read with 142 of the Negotiable Instruments Act, on the file of the Judicial Magistrate Court No.1, Madurai
and the same has been taken on file in Calendar Case No.375 of 1995, wherein the present respondent has
been shown as accused.
        3. It is stated in the complaint that the complainant has been          manufacturing tyres at Door
No.82, Madurai-Aruppukkottai Road and the same is being managed by its Assistant Area Manager by
name Rajagopal. The said Rajagopal has been authorised to institute the present proceeding. The accused
has been running a business under the name and style of Babu Tyres. From the year, 1992 both the
complainant and the accused are having business transactions. Under the said circumstances, the accused is
bound to pay Rs. 4,34,043/- to the complainant and in order to discharge the same, the accused has given
the cheque in question and the same has been            presented in the concerned bank for collection. The
concerned bank has retuned the same stating ‘funds insufficient’ and subsequently, a telegram as well as
statutory notice have been given to the accused and even after    receipt of the same, the accused has failed
to discharge his liability. Under the said circumstances, he is said to have committed offence under Section
138 of the Negotiable Instruments Act.
        4. On the side of the complainant, PWs.1 to 4 have been examined and Exs.P-1 to P-13 have been
filed. When the accused has been questioned         under Section 313 of the Code of Criminal Procedure, as
respects the        incriminating circumstances appearing in evidence against him, he denied his complicity
in the crimes. On the side of the accused, D.W.1 has been examined and Exs.D-1 to D-5 have been filed.
        5. The trial Court, after considering the evidence available on record, has found the accused guilty
under Section 138 of the Negotiable               Instruments Act and sentenced him to undergo six months’
simple imprisonment. Against the conviction and sentence passed by the trial Court, the accused as
appellant has preferred Criminal Appeal No.48 of 1998 on the file of the first appellate Court.
        6. The first appellate Court, after reappraising the evidence available on record, has found that the
complaint has not been properly filed and the Assistant Area Manager of the complainant has no locus
standi to file the complaint and under the said circumstances, has allowed the appeal and consequently, set
aside the conviction and sentence passed by the trial Court. Against the judgment passed by the first
appellate Court, the present       criminal appeal has been filed.
        7. The learned counsel appearing for the appellant/complainant has contended with great
vehemence that the Assistant Area Manager of the complainant has been delegated to institute the present
proceeding and the first appellate Court has failed to consider the contention raised on the side of the
complainant and erroneously set aside the conviction and sentence passed by the trial Court and therefore,
the judgment passed by the first appellate Court is liable to be set aside.
        8. In support of his contention, he has drawn the attention of the Court to the following decisions;
           (a)      The first and foremost decision is reported in 1997(2) Crimes 115 (Sagayadurai v. J.D.
                    Electronics) wherein this Court has held that the Court is empowered to take cognizance
                    if    complaint is preferred by the firm, a company under Section 138 of the Negotiable
                    Instruments Act, through the manager of the company.
           (b)      The second decision is reported in 2005(2) CTC 417 (K. Ramachandra Rao and others v.
                    State of A.P., rep. by the Public Prosecutor and another) (Full Bench of the Andhra
                    Pradesh High Court) wherein it has been held that a        complaint under Section 138 of
                    the Negotiable Instruments Act, can be filed by duly appointed power-of-attorney agent.
        9. From the decisions referred to supra, it is made clear to the Court that a company can file a
complaint under Section 138 of the Negotiable Instruments Act, by a duly appointed power-of-attorney
agent.
        10. The learned counsel appearing for the respondent/accused has also equally contended that the
board of directors of the complainant have       appointed the Regional Manager to look after its affairs and
the Regional Manager has no locus standi to appoint the Assistant Area Manager viz., Rajagopal to institute
the present proceeding and therefore, the complaint itself has been filed erroneously and the first appellate
Court, after considering the above legal aspect, has rightly allowed the appeal and thereby set aside the
conviction and sentence passed by the trial Court and therefore, the present criminal appeal deserves
dismissal.
        11. At this juncture, it would be more useful to look into Rule 174 (3) of the memorandum and
articles of association of the complainant and the same reads as follows;
          “Subject to Section 292 of the Act, the Directors from time to time, and at any time, may delegate
          to any person so appointed, any of the powers, authorities and discretions for the time being vested
          in the Directors other than the power to make calls or to make loans to borrow moneys and may
          authorise the members for the time being of any such local board, or any of them, to fill up any
          vacancies therein, and to act notwithstanding vacancies; and any such appointment or delegation
          may be made on such terms and subject to such              conditions, as the Directors may think fit,
          and the Directors may at any time remove any person so appointed and may annul or vary any
          such delegation.”
        12. From the close reading of the said rule the delegation powers            completely vests with the
Directors and they can appoint any person to perform any act. In the instant case, the Directors of the
complainant have not delegated any power to the Assistant Area Manager viz., Rajagopal to institute the
present proceeding. Only the Regional Manager has delegated necessary power to the said Rajagopal to
institute the present proceeding.
         13. At this juncture, a nice legal question arises as to whether a delegate can further delegate.
The axiomatic maxim is “Delecata Protestas non protest delegari”. The maxim lays down the general rule
that an agent cannot delegate his powers or duties to another, in whole or in part, without the express
authority of the principal or authority derived from the statute.
         14. In the instant case, as noted down earlier, the Regional Manager has given necessary
authorisation to the Assistant Area Manager to file the complaint. The Regional Manager is the delegate it
the Board of Directors and he is nothing but a delegate and as per the maxim referred ‘to earlier, he cannot
delegate his power or duty in favour of the Assistant Area Manager.
       15. In the light of the discussion made earlier, it is very clear that the present complaint has not been
properly filed and the first appellate Court after considering the above legal aspect, has clearly held that the
present complaint is not legally maintainable and therefore, the argument advanced by the learned counsel
appearing for the appellant/complainant is sans merit and whereas the argument advanced by the learned
counsel appearing for the respondent is really having attractive force.
       16. In fine, this criminal appeal deserves dismissal and accordingly is dismissed. The judgment
dated 14.12.2001, passed in Criminal Appeal No.48 of 1998, by the Additional District and Sessions Court
(Fast Track Court No.1), Madurai is confirmed.
                                                                                             Appeal dismissed.



                                    [2008 (1) T.N.L.R. 418 (Mad) (MB)]
                                           MADRAS HIGH COURT
                                             (MADURAI BENCH)
BEFORE:
              A. SELVAM, J.
                                                              KRISHNAMMAL                          ...Petitioner
                                                    Versus
                               REVENUE DIVISIONAL OFFICER TUTICORIN AND OTHERS                   ...Respondents
                     [Criminal Revision No. 654 of 2007, decided on 18 March, 2008]
                                                                          th


        Criminal Procedure Code, 1973—Sections 211 and 216—Scope of—Either the prosecution or
the person interested has no right to ask Court either to alter the existing charges or to add new
charges—Trial Court has framed charge under Section 302, IPC on the basis of available material on
records—Application by interested person             praying to frame additional charges under Sections
302 read with 34, 120-B, 201, 217, 218, 220, 331, 342, 348 and 367, IPC was totally     unwarranted—
Rightly dismissed—Revision petition against             dismissed.
                   (Paras 9 to 12)
        Counsel.—Mr. R. Anand, for the petitioner; Mr. L. Murugan, Government Advocate, (Criminal
Side), for the 1st respondent; Mr. K. Jeganathan, for the 2 to 11 respondents.
                                              Important Point
       Neither the prosecution nor the person interested has right to file petition by invoking either of the
Sections 211 or 216, Cr.P.C., so as to delete the existing charges or add new charges.
                                              JUDGMENT
       A. SELVAM, J.—The order dated 17.08.2007, passed in criminal      miscellaneous petition No. 269
of 2007 in Sessions Case No.223 of 2006, by the Additional Sessions-cum-Fast Track Court No.1,
Tuticorin, is now under challenge.
       2. The wife of the deceased by name Krishnammal has filed criminal miscellaneous petition No.
269 of 2007, praying to frame additional charges under Sections 302 read with 34, 120-B, 201, 217, 218,
220, 331, 342, 348 and 367 of the Indian Penal Code. The Court below has come to the conclusion to the
effect that framing of additional charge does not arise at this stage. Against the order passed by the Court
below, the present criminal revision case has been filed.
        3. The learned counsel appearing for the revision petitioner has     repeatedly contended that all the
accused have committed offences under Sections 302 read with 34, 120-B, 201, 217, 218, 220, 331, 342,
348 and 367 of the Indian Penal Code, but, the Court below has framed a charge simplicitor under Section
302 of the Indian Penal Code and in order to frame additional charges, the revision petitioner as petitioner
has filed criminal miscellaneous petition No.269 of 2007, but, the Court below without considering the
contentions urged on the side of the revision petitioner, has erroneously dismissed the same and therefore,
the impugned order passed by the Court below is liable to be set aside and necessary direction to be given
to the Court below for framing additional charges.
        4. The learned counsel appearing for the respondents 2 to 11 has also equally contended that the
revision petitioner has no locus standi to file the present petition for framing additional charges and the
power of framing charges, additional charges and altering the same, vests with the Court and the Court
below, after considering the rival contentions raised on either side, has rightly rejected the claim of the
revision petitioner and therefore, the impugned order passed by the Court below is not liable to be
interfered with.
        5. For analysing the divergent submissions made by either counsel, it would be more useful to look
into the relevant sections of the Code of     Criminal Procedure.
        6. Section 211 of the Code of Criminal Procedure reads as follows:
           “ (1) Every charge under this Code shall state the offence with which the accused is charged.
             (2) If the law which creates the offence gives it any specific name, the offence may be
                   described in the charge by that name only.
             (3) If the law which creates the offence does not give it any specific name, so much of the
                   definition of the offence must be stated as to give the accused notice of the matter with
                   which he is charged.
             (4) The law and section of the law against which            the offence is said to have been
                   committed shall be mentioned in the charge.
             (5) The fact that the charge is made is equivalent to a statement that every legal condition
                   required by law to constitute the offence charged was fulfilled in the particular case.
           (6)    The charge shall be written in the language of the Court.
           (7)    If the accused, having been previously convicted of any         offence, is liable, by reason
                  of such previous conviction, to enhanced punishment, or to punishment of a different
                  kind, for a subsequent offence, and it is intended to prove such previous conviction for
                  the purpose of affecting the punishment which the Court          may think fit it award for
                  the         subsequent offence, the fact, date and place of the previous conviction shall be
                  stated in the charge; and if such         statement has been omitted, the Court may add it
                  at any time before sentence is passed.”
       7. Section 216 of the Code of Criminal Procedure reads as follows:
          “(1)    Any Court may alter or add to any charge at any time before judgment is pronounced.
           (2)    Every such alteration or addition shall be read and explained to the accused.
           (3)    If the alteration or addition to a charge is such that proceeding immediately with the trial
                  is not likely, in the opinion of the Court, to prejudice the accused in his defence or the
                  prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration
                  or addition has been made, proceed with the trial as if the altered or added charge had
                  been the original charge.
`          (4)    If the alteration or addition is such that proceeding immediately with the trial is likely, in
                  the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the
                  Court may either direct a new trial or adjourn the trial for such period as may be
                  necessary.
           (5)      If the offence stated in the altered or added charge is one for the prosecution of which
                    previous sanction is necessary, the case shall not be proceeded with until such sanction is
                    obtained, unless sanction had been already obtained for a prosecution on the same facts
                    as those on which the altered or added charge is founded.”
         8. Section 211 of the said Code deals with contents of charge and Section 216 of the said Code
deals with the powers of the Court to alter or add to any charge at any time before judgment is pronounced.
         9. From the conjoint reading of the provisions of the said sections, it is pellucid that only the Court
is having power to frame charge or alter it or add new charges at any time before judgment is pronounced.
Neither the prosecution nor the person interested, has right to file petition by invoking either of the said
sections so as to delete the existing charges or add new charges. In short, either the prosecution or the
person interested has no right to ask the Court either to alter the existing charges or to add new charges.
         10. In the instant case, the Court below after considering all the materials available on record, has
framed a charge simplictor under Section 302 of the Indian Penal Code against the accused found therein.
After        framing a charge under Section 302 of the Indian Penal Code, the revision petitioner has filed
criminal miscellaneous petition No.269 of 2007, praying to frame additional charges against the accused
under Sections 302, read with 34, 120-B, 201, 217, 218, 220, 331, 342, 348 and 367 of the Indian Penal
Code. The Court below has found that the charge under Section 302 of the Indian Penal Code has been
framed on the basis of available material on records. Since the Court below has framed charge under
Section 302 of the Indian Penal Code, on the basis of available records, it is totally unwarranted on the part
of the revision petitioner to file criminal miscellaneous petition No. 269 of 2007 and further, as stated
earlier, the revision petitioner has no right to file the present petition under Section 216 of the Code of
Criminal Procedure and further it is totally unwarranted on her part.
         11. In fact, the revision petitioner has made a faint attempt to dictate the Court below so as to frame
charges as per the sections mentioned supra. Since the petition itself is not legally maintainable, it is
needless to say that the order passed by the Court below is perfectly correct and the same needs no
interference. Therefore, the argument advanced by the learned counsel appearing for the revision petitioner
is totally against law and whereas the argument advanced by the learned counsel appearing for the
respondents 2 to 11 is really having acceptable force.
         12. In fine, this criminal revision case deserves dismissal and           accordingly is dismissed. The
order dated 17.08.2007, passed in criminal miscellaneous petition No. 269 of 2007 in Sessions Case
No.223 of 2006, by the Additional Sessions-cum-Fast Track Court No. I, Tuticorin, is confirmed.
                                                                                             Revision dismissed.



                                    [2008 (1) T.N.L.R. 421 (Mad) (MB)]
                                          MADRAS HIGH COURT
                                            (MADURAI BENCH)
BEFORE:
             A. SELVAM, J.
                      M. KUMAR AND ANOTHER ETC.                                                   ...Appellants
                                                Versus
                     STATE                                                                       ...Respondent
                [Criminal Appeal Nos. 118 and 517 of 2005, decided on 28 th March, 2008]
       (A) Narcotic Drugs and Psychotropic Substances Act, 1985— Sections 8(c) read with 21(c)
and 29—Conviction and sentence— Legality of—Appreciation of evidence—Documentary evidence
available on record fully established the due compliance of mandates of Sections 42 (2), 50 and 51 of
the Act—Accused are in possession of commercial quantity of heroine—Proved by prosecution—
Percentage of particular substance need not be looked into and total     quantity must be taken into
consideration—Plethora of evidence to prove alleged seizure—Accused persons admitted their
involvement in the crime—Independent witnesses supported the version of the prosecution in part—
Default sentence to the extent of three years not reasonable—One year would be sufficient to meet
the ends of justice—Conviction and sentence confirmed subject to slight   modification in default
sentence.
                                                                               (Paras 19, 26, 29, 33 and 35)
       (B) Criminal trial—Conviction—Percentage of particular                substance need not be looked
into—And total quantity must be taken into consideration.
(Para 26)
       (C) Criminal trial—Panch witnesses—Omission on their part to support prosecution case is
not fatal to the prosecution case if from material on record and evidence of seizing authority the
Court is satisfied that the seizure is genuine and the same is made out.
                                                                                                   (Para 28)
       (D) Criminal trial—Independent witnesses—Role of—Discussed.
                                                                                              (Para 33)
       Case law.—JT 1994 (2) SC 108; 1998 Cri LJ 132 (Raj); 2000 Cri LJ 4293 (Ori); 1999 SCC (Cri)
79; 2005 SAR (Cri) 765 (SC); 2004 SCC (Cri) 1.
       Counsel.—Mr. M. Ramasubramaniam, for the appellant in Crl.A.No. 118/2005; Mr. T. Sekar, for
appellant in Cri.A.No. 517/2005; Mr. C.          Arul Vadivel and Sekar, Special Public Prosecutor, (for
customs), for the respondent in both the appeal.
                                             Important Point
      Punishment warrants only on the basis of small quantity or commercial quantity or a quantity
between the two and not on the basis of percentage of the substance.
                                            JUDGMENT
        A. SELVAM, J.—These criminal appeals have been directed against the conviction and sentence
dated 14.02.2005, passed in Calendar Case No.652 of 2001, by the special Court (for EC and NDPS Act
cases), Pudukottai.
        2. The epitome of the prosecution case can be stated like thus:
        The first accused has gone to Karambiam village so as to see the accused 2 and 3. The accused 2
and 3 have told the first accused that one Vethamurthi is having brown sugar and the accused 2 and 3 have
also told the first accused that on 05.07.2001, they will come to Tiruchirapalli so as to sell brown sugar and
accordingly, on 06.07.2001, all the accused have been found in Karumandabam Jaya Nagar First Street.
The first accused has been found in possession of two brown sugar packets (weighing of 1.020
Kilograms) and under the said circumstances, all the accused are said to have committed offences under
Sections 8(c) read with 21(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
        3. The prosecuting agency after conducting investigation, has laid a final report on the file of the
trial Court. The trial Court, on the basis, of the accusation made against the accused, has framed a charge
under the said sections and the same has been read over and explained to them. The                accused have
denied the charge and claimed to be tried.
        4. On the side of the prosecution, PWs.1 to 6 have been examined and Exs.P-1 to P-31 and MOs.1
to 8 have been marked. When the accused have been questioned under Section 313 of the Code of Criminal
Procedure, as respects the incriminating circumstances appearing in evidence against them, they denied
their complicity in the crime. However no oral and documentary evidence have been adduced on the side of
the accused.
        5. After perpending the evidence available on record, the trial Court has found all the accused guilty
under Section 8(c) read with 21(c) read with 29 of the Narcotic Drugs and Psychotropic Substances Act,
1985 and         ultimately sentenced them to undergo twelve years’ rigorous imprisonment and also imposed
a fine of Rs.1,00,000/- upon each accused with default clause. Against the conviction and sentence passed
by the trial Court, the first and second accused have preferred Criminal Appeal No.118 of 2005 and the
third accused has preferred Criminal Appeal No.517 of 2005.
        6. Since common questions of law and facts are involved in both the appeals, common judgment is
pronounced.
        7. The specific contention urged on the side of the prosecution is that on 06.07.2001, all the accused
have been found in Karumandabam Jaya Nagar First Street, Tiruchirapalli and the first accused has been in
possession of two brown sugar packets to weighing 1.020 kilograms and under the said circumstances, all
the accused are said to have committed offence mentioned in the charge.
        8. Before contemplating the rival submissions made by either counsel, it has become shunless to
find out as to whether the prosecution has       established the guilt of the accused under Sections 8(c) read
with 21(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
        9. The Superintendent of Customs (CIU) Tiruchirapalli by name Jebaraj Rajkumar has been
examined as P.W.1. He has stated in his evidence that on 06.07.2001, he served as Superintendent of
Customs (CIU) in Tiruchirapalli and on the same day, he received a secret information to the effect that the
accused. are in possession of narcotic drugs and psychotropic substances and the secret information has
been reduced into writing and subsequently informed to the higher-up and the same has been marked as
Ex.P-1 and thereafter, he and others have gone to Pakhaaibhavan Bhavan and found all the accused and all
the accused have been enquired into and they told their names and he has introduced himself to the accused
and told that he is going to inspect them. He has also informed to the accused that they can be      inspected
in the presence of any Gazetted Officer or Judicial Magistrate and all the accused have expressed their
unstinted willingness that P.W.1 can inspect them and accordingly, P.W.1 has inspected the second and
third accused and nothing has been found out from them. Before inspecting the first accused, he himself
produced a yellow colour Polythene bag and the same has been marked as M.O.1 and M.O.1 has been
inspected in the           presence of witnesses and the same contained two packets of brown sugar, each
weighing 510 gram. P.W.1 has examined the powder and ultimately found that the same is morphine and
each packet has been separately marked. P.W.1 has further stated that he has taken 5.5 grams from each
packet for chemical analysis. After preparing mahazar viz., Ex.P-2, the accused have been enquired under
the Narcotic Drugs and Psychotropic Substances Act, 1985 and the accused have given separate
confessions statement and the same have been marked as Exs.P-3 to P-5. Since the accused have explicitly
admitted their guilt, they have been arrested and produced before the            concerned Magistrate Court,
Tiruchirpalli. The arrest memo has been marked as Ex.P-6 and after observing all legal formalities, the
samples have been sent to chemical analysis is and after completing investigation, he laid a final report.
        10. One Moses has been examined as P.W.2. He has stated in his evidence that on 06.07.2001 he,
P.W.1 and others have gone to the place of occurrence and P.W.1 has checked all the accused and found
that the third accused is in possession of two packets of brown sugar and before searching the accused, they
have been told that search can be made either in the presence of a Gazetted Officer or in the presence of
a Judicial Magistrate and all the accused have categorically stated that P.W.1 can conduct search. Further
he has stated that P.W.1 has examined packets which have been recovered from the third accused and
ultimately found that the same is morphine and P.W.1 has taken 5.5 gram samples from each packet for
chemical analysis and subsequently a mahazar has been prepared and the same has been written by him.
        11. One independent witness by name Surendhiran has been                  examined as P.W.3. He has
stated in his evidence that he is doing Real      Estate business in Tiruchirapalli and on 06.07.2001, he and
one Mariyanantham have been taking tea and at that time P.W.1 and four others, have come there and told
that they are going to Pakhaaibhavan Bhavan for conducting enquiry and they asked them to come along
with them and under the said circumstances, he and Mariyanantham have gone to the place of occurrence
along with P.W.1 and others. He further states that one accused by name Kumar has been found in
possession of yellow colour polythene bag and P.W.1 has seized the said bag, and found that the same
contained two packets and P.W.1 has examined the same            and found that the same is morphine and
subsequently P.W.1 has taken five gram from each packet and further he states that he has put his signature
in Ex.P-2.
        12. The other independent witness by name Mariyanantham has been examined as P.W.4. He has
also stated in his evidence that on 06.07.2001, he and P.W.3 have been taking tea and at that time P.W.1
and others have come to that place and asked them to come along with them for conducting          enquiry and
accordingly all of them, reached the place of occurrence and one accused by name Kumar has been found
in possession of a yellow colour bag and the same has been inspected by P.W.1 and ultimately found two
packets and P.W.1 has observed all legal formalities and prepared mahazar and he put his signature in
Ex.P-2.
         13. The chemical analyst viz., Suresh has been examined as P.W.5. He has stated in his evidence
that he has received Ex.P-13 from the concerned Court and on the basis of Ex.P-13, on 11.07.2001, he
received two sealed bags and he compared the seals and subsequently, chemically analysed the things
which are in question and ultimately found that the same are “dye-ascetile” morphine that is heroin.
         14. Ex.P-1 is the report filed under Section 42(2) of the Narcotic Drugs and Psychotropic
Substances Act, 1985. Ex.P-2 is mahazar which speaks about the alleged seizure. Exs.P-3 to P-5 are the
statements given by the accused, wherein it has been clearly stated that all the accused have           involved
in the alleged crime. Ex.P-12 is a report prepared under Section 57 of the said Act. Therefore, from the
testimonies of P.Ws.1 to 5 and the exhibits referred to supra, tile Court can safely come to a conclusion
that all the accused have committed offences under Sections 8 (c) read with 21 (c) and 29 of the Narcotic
Drugs and Psychotropic Substances Act, 1985.
         15. The learned counsel appearing for the appellants/accused in both the appeals, have raised the
following contentions so as to supplant the conviction and sentence passed by the trial Court.
         16. The first and foremost attack is that in the present case the     mandatory provision of Sections
42 (2), 50 and 57 have been violated and the trial Court without considering the above lapses found on the
side of the prosecution, has erroneously invited the conviction and sentence against the accused and
therefore, the conviction and sentence passed by the trial Court are liable to be set aside.
         17. In support of their contentions, they have relied upon the        following decisions;
           (a)      In JT 1994(2) (SC) 108 (State of Punjab v. Balbir Singh), it has been held that under
                    Section 42(2), such empowered officer who takes down any information in writing or
                    records the grounds under proviso to Section 42 (1) of the said Act, should forthwith send
                    a copy thereof to his immediate official superior. If there is total non-compliance of this
                    provision the same affects the prosecution case. To that extent it is mandatory. But if
                    there is delay whether it was undue or whether the same has been explained or not, will
                    be a      question of fact in each case.
           (b)      In 1998 Cri LJ 132 (Raj) (Ayub v. State of Rajasthan), it has been held that
                    communication to official superior officer is mandatory under Section 42 of the Narcotic
                    Drugs and      Psychotropic Substances Act, 1985 and non-compliance is fatal.
            (c)     In 2000 Cri LJ 4293 (Ori) (Ghasiram Patra v. State), it has been held that delay of one
                    month and three days in sending samples for chemical examination is fatal to the
                    prosecution.
           (d)      In 1999 SCC (Cri) 79 (Moninder Kumar v. State, Panaji, Goa), it has been held that non-
                    compliance of the provisions of        Sections 42 (1), (2), 50, 52 and 57 of the Narcotic
                    Drugs and Psychotropic Substances Act, 1985, are fatal to the case of the prosecution.
         18. The Special Public Prosecutor for customs has also equally             contended that in the instant
case, all the mandatory provisions of Sections 42(2), 50 and 57 have been followed and therefore, the
argument advanced by the learned counsel appearing for the appellants/accused is totally contra to the
available records and therefore, the same is liable to be rejected.
         19. For considering the rival submissions made by either counsel, the Court has to look into the
following documents;
         Ex.P-1 is a report given under Section 42 (2) of the Narcotic Drugs and Psychotropic Substances
Act, 1985 and the same has been sent by P.W.1 to the Commissioner of Customs, Tiruchirapalli. Ex.P-2 is
a mahazar, wherein also it has been clearly stated that before conducting search all the accused have been
informed that if they desire that the search should be made either in the presence of a Judicial Magistrate or
a Gazetted Officer, they can exercise their option. Therefore, Section 50 of the Narcotic Drugs and
Psychotropic Substances Act, 1985, has also been complied with and to that extent in Exs.P-3 to P-5 all the
accused have clearly stated. Ex.P-12 is a report prepared under Section 57 of the said Act, wherein also the
provision of Section 57 of the said Act has been duly complied with.
         20. Therefore, in the light of the discussion made earlier, it is very clear that the first limb of
argument advanced by the learned counsel            appearing for the appellants/accused is totally contra to the
documents filed in the present case and the same cannot be accepted.
        21. The learned counsel appearing for the appellants/accused have also made their endeavour to the
effect that the present case comes only under the penal provision of Section 21(b) of the Narcotic Drugs
and Psychotropic Substances Act, 1985 and the trial Court has erroneously invited the                 conviction
and sentence under Section 21(c) of the said Act and therefore, the conviction and sentence passed by the
trial Court are liable to be set aside.
        22. The learned counsel appearing for the appellants/accused have advanced their argument only on
the basis of the evidence adduced by P.W.5. P.W.5, the chemical analyst has stated in his evidence that the
packet which has been marked. as P-1- S-1 contains 22.46% of heroin and the packet which has been
marked as P2 - S-1 contains 33.95% of heroin. The crux of the argument advanced by the learned counsel
appearing for the appellants/accused is, that the percentage of heroin is neither small quantity nor
commercial quantity and it is a quantity in between the two and therefore, punishment cannot be given
under Section 21(c) of the said Act.
        23. In order to remonstrate the above limb of argument advanced by the learned counsel appearing
for the appellants/accused, the learned      Special Public Prosecutor for customs has befittingly drawn the
attention of the Court to the decision reported in 2005 SAR (Cri) 765 (Amarsinqh Ramjibhai Barot v. State
of Gujarat) wherein the Honourable Apex Court has held that the punishment is graded according to
whether the contravention involved “small quantity” or “commercial quantity” or a quantity in between
the two.
        24. From the close reading of the decision referred to supra, it is made clear that the punishment
warrants only on the basis of small quantity or commercial quantity or a quantity between the two and not
on the basis of percentage or the substance.
        25. In the instant case, from the evidence of P.W.1, the Court can easily learn that he seized two
packets of brown sugar weighing in aggregation 1.020 Kilograms from the first accused. It is an axiomatic
fact that 250 grams of heroin come under the category of commercial quantity. Therefore, the only criteria
to be applied in the present case is as to whether the alleged heroin comes either under the category of
small quantity or commercial quantity or the quantity in between the two.
        26. In the instant case, as pointed out earlier, the prosecution has clearly proved that the accused are
in possession of commercial quantity. Of course it is true that P.W.5 has stated in his evidence that one
packet      contains 22.56% of heroin and another packet contains 33.95% of heroin and only on that basis,
the learned counsel have stressed their argument that the quantity alleged to have been seized from the
accused can be branded as the quantity in between the small quantity and commercial quantity. It has
already been pointed out in detail that the percentage of particular          substance need not be looked into
and total quantity must be taken into consideration. In the instant case, the accused are in possession of
commercial quantity. Therefore, the above limb of argument advanced by the learned counsel appearing for
the appellants/accused is not having attractive force.
        27. The learned counsel appearing for the appellants/accused have contended with great vehemence
that the alleged independent witnesses viz., Surendhiran and Mariyanantham have been examined as
P.Ws.3 and 4 and they have not identified the accused 2 and 3 and therefore, the Court cannot come to a
conclusion that the accused 2 and 3 have also involved in the alleged crime, but, the trial Court without
considering the above lapse found on the side of the prosecution, has erroneously invited the conviction and
sentence against the accused 2 and 3 and therefore, the conviction and sentence passed against the accused
2 and 3 are liable to be set aside.
        28. As rightly pointed out by the learned counsel appearing for the appellants/accused, the
independent witnesses viz., Surendhiran and Mariyanantham (P.Ws.3 and 4) have not properly identified
the accused 2 and 3. But, they have clearly spoken to the effect that one accused by name Kumar has been
found in possession of yellow colour bag. At this juncture, the learned Special Public Prosecutor for
customs has drawn the attention of the Court to the decision reported in 2004 SCC (Cri) 1 (P.P. Fathima v.
State of Kerala) wherein the Honourable Apex Court has held that omission on the part of such panch
witness to support the prosecution case is not fatal to the prosecution case if from material on record and
evidence of seizing authority the Court is satisfied that the seizure is genuine and the same is made out.
        29. In the instant case, plethora of evidence are available so as to prove the alleged seizure and all
the accused have given separate statement wherein they have clearly admitted their involvement in the
crime. Even though P.Ws.3 and 4 have not fully supported the version of the prosecution, the evidence of
P.W.1 and other connected documents would clearly go to show that the accused 2 and 3 have also
involved in the crime and, therefore, the above limb of argument advanced by the learned counsel
appearing for the appellants/accused, cannot be accepted.
        30. The learned      counsel appearing for the appellants/accused have also made their endeavour to
the effect that in the present case, two different drugs are in existence and therefore, the Court cannot come
to a conclusion that the first accused is in possession of heroin, at the time of occurrence and the accused 2
and 3 have also involved in the crime.
        31. The learned counsel appearing for the appellants/accused have advanced their argument on the
basis of evidence given by P.W.1. P.W.1 has stated in his evidence that he has taken a sample of small
quantity and the same has been subjected to chemical examination and ultimately found that the same is
morphine. The evidence of P.W.1 should be read along with the evidence of P.W.5, chemical analyst. He
has stated in his evidence that he examined the samples and found the same contain “dye-ascetile”
morphine that is heroin. Therefore, the drug involved in the present case is nothing but one and under the
said circumstances, the argument advanced by the learned counsel appearing for the appellants/accused is
sans merit.
        32. The learned counsel appearing for the appellants/accused have also advanced their last limb of
argument stating that in the present case no independent witness has been examined so as to prove the guilt
of the    accused and therefore, the entire case of the prosecution is liable to be thrown out.
        33. In the instant case, the independent witnesses have been            examined as P.Ws.3 and 4 and
they supported the version of the prosecution in part. Therefore, no one can say that independent witness
has not been examined in the present case. Even assuming without conceding that            independent witness
has not been examined in the present case, the Court can find out the culpability of the accused on the basis
of available evidence. It has already been pointed out in many places that the prosecution has clearly
established the guilt of the accused. Therefore, the role of independent witnesses is absolutely unwarranted
in the present case and further the Honourable Supreme Court has held in various decisions that in cases of
similar nature, role of independent witness is not at all necessary.         Therefore, the argument advanced
by the learned counsel appearing for the appellants/accused is not having attractive force.
        34. The learned counsel appearing for the appellants/accused have advanced their residual
argument to the effect that the trial Court has imposed Rs. 1,00,000/- upon each accused by way of fine
and in default they must undergo three years’ rigorous imprisonment and some leniency can be shown in
respect of default sentence.
        35. It has already been pointed that the trial Court has imposed      substantive sentence to the extent
of twelve years and the trial Court has awarded default sentence to the extent of three years. Considering
the above submission made by the learned counsel appearing for the appellants/               accused, imposing
default sentence to the extent of one year would be           sufficient to meet the ends of justice and to that
extent, the present criminal appeals, can be allowed. Further the trial Court after analysing all the
evidence available on record, has rightly found all the accused guilty under the sections mentioned in the
charge.
        36. In fine, these criminal appeals are allowed in part and the conviction and sentence passed
against the appellants/accused under Sections 8(c) read with 21 (c) and 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 in Calendar Case No.652 of 2001, by the Special Court (for EC and
NDPS Act cases), Pudukottai are confirmed and the default sentence alone is modified as follows;
        In default of payment of fine each accused must undergo one year’s rigorous imprisonment instead
of three years’ rigorous imprisonment.
                                                                                         Appeal partly allowed.



                                       [2008 (1) T.N.L.R. 429 (Mad)]
                                           MADRAS HIGH COURT
BEFORE:
             M. JEYAPAUL, J.
                                SHYAM KUMAR SHRIVASTAVA AND OTHERS                              ...Petitioners
                                                Versus
THE STATE, REP. BY SUB-INSPECTOR
                             OF POLICE AND ANOTHER                                        ...Respondents
 [Criminal Original Petition No. 32369 of 2007 and M.P. Nos. 1 and 3 of 2007, decided on 22 nd January,
                                                2008]
        Criminal Procedure Code, 1973—Section 482—Indian Penal Code, 1860—Sections 406, 420
and 506(ii)—Quashing of proceeding—Complainant and accused entered into an agreement whereby
certain mines were leased out—Thereafter, accused obstructed in working of complaint—Even at
one stage accused threatened that they would do away with life of complainant—Quashing of
complaint sought on ground of pendency of arbitration proceeding and also prima facie no case is
made out—Held, apart from civil litigation allegation of cheating, criminal intimidation and breach
of trust have been alleged and serious charges have to be thoroughly probed into by I.O.—Hence,
complaint cannot be quashed—Petition dismissed.
                                                                                              (Paras 19 to 21)
        Case law.—AIR 2000 SC 1869; AIR 1999 SC 3499; 2006 (1) MLJ (Cri) 589; 2006 (1) MLJ (Cri)
264; 2007 (5) CTC 614—referred.
        Counsel.—Mr. R. Shanmugasundaram, Senior Counsel for Mr. R. Murali, for the petitioners; Mr.
Hasan Mohamed Jinnah, Govt. Advocate (Cri. (Side), Mr. P. Jayaraman, Senior counsel for Mr. K.
Sakthivel, for the respondents 1 and 2.
                                                   JUDGMENT
        M. JEYAPAUL, J.—The petition is filed seeking quashment of the                criminal proceedings in
Crime No.401 of 2007 on the file of the Sub Inspector of Police, Central Crime Branch/I, Egmore,
Chennai.
        2. Petitioners 1 to 4 are the Directors of M/s.Deccan Minerals Private Limited. Petitioners 5 and 6
are the Directors of M/s.Vidarbha Mining Private Limited and Goldstar Metal Solutions Private Limited.
        3. The private complaint given by the second respondent referred under Section 156(3) of the
Code of Criminal Procedure by the XIV Metropolitan Magistrate, Egmore, Chennai and registered in
Crime No.401 of 2007 would read as follows:
        During the month of September 2004, A-1 to A-3 approached the            complainant and represented
that they were owners of certain mines and they intended to lease out the said mines to the second
respondent for        raising iron ore and selling the same. Believing the representation of the accused to be
true, the complainant and the accused entered into an agreement on 1.10.2004 for development of the mines
and sales of the iron ores from the said mines in collaboration with the accused company by name Deccan
Minerals Private Limited. The complainant paid a sum of Rs.1,75,00,000/- on 23.9.2004 and
Rs.25,00,000/- on 15.12.2004 to the accused company as security deposit and irrevocable power of attorney
was given for ten years to the complainant company on 15.12.2004 by the accused                company. The
complainant started extracting iron ore from the above mines by engaging workers, having invested a total
sum of Rs.8,00,00,000/- for        extracting and raising iron ore. Within a short span of time, the accused
started giving trouble to the complainant by preventing the complainant from extracting iron ore from the
said mines. A memorandum of understanding was entered into between the accused and the complainant on
5.9.2005. But, the complainant, all of a sudden on 13.1.2007, with an evil intention to cheat and defraud the
complainant, obstructed the mining         operation carried on by the complainant, with the help of goondas.
Though the complainant questioned the illegal activities of the accused, A.2 to A.6 came down to the
company of the complainant on 7.4.2007 and threatened the complainant that they would do away with the
life of the complainant. All the accused, with an evil intention to defraud and cheat the complainant,
induced the complainant to part with huge money and committed criminal breach of trust. They have
committed offences punishable under Sections 406, 420 and 506(ii) of the Indian Penal Code.
        4. The petition seeking quashment is filed by the accused on the     following grounds:—
           (a)     During the course of business, there were breach of                agreements entered into
                   between petitioners 1 to 3 and the complainant. A sole arbitrator was appointed by the
                   High Court, Mumbai in A.P.No.259 of 2005 to resolve the dispute between petitioners 1
                   to 3 and the complainant. As a consensus was reached and all the disputes were resolved
                   by         executing a memorandum of understanding dated 5.9.2005, the complainant
                   started removing ores in the mines belonging to the area of the first petitioner illegally
                   and therefore, the petitioners cancelled the memorandum of understanding by their letter
                   dated 13.1.2007. Even as against the cancellation of the agreements and the
                   memorandum of understanding, the complainant has raised civil dispute before the High
                   Court, Mumbai in Chamber Summons No.1637 of 2006. This is an attempt made by the
                   complainant to corner the        petitioners by invoking the criminal jurisdiction.
            (b)    The complaint, even if it is taken at its face value and        accepted in its entirety, does
                   not constitute any offence or make out a case as against the petitioners. The entire cause
                   of action arose at Maharashtra and the learned Metropolitan Magistrate at Chennai has no
                   jurisdiction to issue any          direction under Section 156(3) of the Code of Criminal
                   Procedure. There has been a delay of seven months in registering the FIR. The complaint
                   has been lodged with a mala fide intention to wreak vengeance and to cause harm to the
                   petitioners. Since the High Court, Mumbai has not granted any interim relief to the
                   complainant in the suit filed for            attachment of mines and for injunction, the
                   complainant has converted the civil dispute into a criminal case. The alleged threat
                   wielded by the petitioners at Chennai is a figment of the imagination of the complainant.
                   The petitioners have sought for quashment in the above facts and circumstances.
         5. The short point that arises for consideration is whether the      complaint reflects commission of
cognizable offences warranting reference under Section 156(3) of the Code of Criminal Procedure by the
learned Metropolitan Magistrate.
         6. Learned senior counsel for the petitioners would vehemently           submit that the entire dispute
between the petitioners and the second        respondent relates to mining rights. The parties had also resorted
to civil forum seeking relief. The civil dispute has been mischievously converted into a criminal case just
to punish the petitioners against the spirit of the judgment of the High Court of Mumbai. In a catena of
cases, this Court has held that a civil dispute between the parties cannot be dragged to the criminal Court
abusing the process of law.
         7. Learned Government Advocate (Criminal Side) would submit that the investigation could not be
proceeded further on account of stay granted by this Court.
         8. Learned senior counsel appearing for the second respondent would submit that all the allegations
constituting the offence of cheating have been clearly set out in the complaint. Further, the threat wielded
by the petitioners to do away with the life of the second respondent has been alleged in the complaint. The
second respondent has sufficient material to substantiate the evil design of the petitioners to cheat the
second respondent who are adopting the very same modus operandi as against some other companies also,
he would further contend.
         9. The complaint discloses a serious charge of cheating as against the petitioners. The second
respondent has also detailed about the misrepresentation made to him to enter into an agreement with the
petitioners. The inducement made by the petitioners to the complainant to part with huge money and the
criminal breach of trust committed by the petitioners have been unambiguously stated in the complaint.
Further, it is found that there is a specific allegation that petitioners 2 to 6 came down to Chennai and
threatened the complainant that they would do away with his life on being questioned by the complainant
about the illegal activities of the petitioners. The aforesaid details found in the complaint reflects
unerringly the         allegation of commission of various offences by the petitioners.
         10. The fact remains that on account of certain dispute between the petitioner and the second
respondent who entered into an agreement for raising ores and for sale of the same, a memorandum of
understanding was entered into between the parties. A civil dispute was also raised before the High Court
of Mumbai by the second respondent challenging the cancellation of the agreements and the memorandum
of understanding entered into between the parties. The question that arises for consideration is whether
in such circumstances, the second respondent can invoke the criminal                   jurisdiction to book the
petitioners for various criminal offences.
         11. The Supreme Court in M/s. Medchl Chemicals and Pharma                         Private Limited v. M/s.
Biological E. Limited, AIR 2000 SC 1869, has held that a complaint cannot be quashed merely on the
ground that a civil remedy is available for the complainant.
         12. The Supreme Court in Trisuns Chemical Industry v. Rajesh Agarwal, AIR 1999 SC 3499, has
observed as under:
          “We are unable to appreciate the reasoning that the provision              incorporated in the agreement
          for referring the disputes to           arbitration is an effective substitute for a criminal prosecution
          when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party
          affected by breach of the agreement but the           arbitrator cannot conduct a trial of any act which
          amounted to an offence albeit the same act may be connected with the discharge of any function
          under the agreement. Hence, those are not good              reasons for the High Court to axe down the
          complaint at the threshold itself. The investigating agency should have had the freedom to go into
          the whole gamut of the allegations and to reach a conclusion of tis own. Pre-emption of such
          investigation would be justified only in very extreme cases as indicated in State of Haryana v.
          Bhajaj Lal, 1992 AIR SCW 237 : AIR 1992 SC 604 : 1992 Cri LJ 527.”
         13. In the instant case, it is true that an arbitrator was appointed and on account of some amicable
settlement, a memorandum of understanding was entered into between the parties. But, that cannot be a
ground to quash the criminal proceedings when the investigation has just begun for the charges of criminal
breach of trust, cheating and criminal intimidation effectively alleged in the complaint.
         14. Only in a case where the complaint is bereft of material particulars necessary for making out the
offence, the Court may think in terms of         quashing the complaint.
         15. The complaint, as stated earlier, makes out, prima facie, commission of offences by the
petitioners. Therefore, it is not fair to quash the very complaint even before the investigation reaches its
logical end.
         16. Of course, the Court should not permit the prosecution without any basis against innocent
persons as instrument of harassment or to mount pressure on the accused to toe the line of the complainant.
But, the Court should not throw away the complaint when serious charges are levelled in the complaint and
the same requires thorough investigation.
         17. This Court in Purushothaman, S. v. Associated Trading Corporation Private Limited, (2006) 1
MLJ (Cri.) 589, has held that for a breach of contract or for non-compliance of the terms of conditions of
memorandum of understanding, no criminal prosecution can be launched. In the instant case, it is found
that though there is civil dispute between the petitioners and the second respondent, specific allegation of
cheating, breach of trust and          criminal intimidation have been set out in the complaint. Therefore, the
ratio laid down in the aforesaid authorities does not apply to the facts and circumstances of this case.
         18. In a commercial transaction, criminal proceedings were initiated to intimidate and harass the
accused in order to get back the dues at a faster phase. Such an attitude of the complainant was deprecated
and the criminal proceedings were quashed in M/s. Bellary Steels and Alloys Limited v. M/s. Man Takraf
(India) Private Limited, (2006) 1 MLJ (Cri.) 264.
         19. The Supreme Court in Inder Mohan Goswami v. State of Uttaranchal, 2007 (5) CTC 614, has
held that initiation of criminal proceedings based on a dispute of purely civil in nature amounts to abuse of
the process of Court. It is found that breach of contractual obligations in the said case has given rise to the
initiation of criminal proceedings. But, in the            instant case, apart from the civil dispute between the
parties, cogent allegation of cheating, criminal intimidation and breach of trust have been alleged.
         20. It is found that the investigation has been stopped at a nascent stage. The serious charges
levelled against the petitioners will have to be thoroughly probed into by the investigating agency.
         21. In view of the above, the petition seeking quashment stands                 dismissed. Miscellaneous
Petition No.1 of 2007 for interim stay is also          dismissed vacating the stay already granted. As the main
criminal original petition seeking quashment has been dismissed, Miscellaneous Petition No.3 for vacating
the stay stands closed.
                                                                                                 Petition dismissed.
                                    [2008 (1) T.N.L.R. 434 (Mad) (MB)]
                                          MADRAS HIGH COURT
                                            (MADURAI BENCH)
BEFORE:
               M. CHOCKALINGAM AND S. PALANIVELU, JJ.
                         PANDIYARAJAN AND ANOTHER                                                  ...Appellants
                                                     Versus
THE INSPECTOR OF POLICE KENIKKARAI
                        POLICE STATION, RAMANATHAPURAM                                           ...Respondent
             [Criminal Appeal (MD) Nos. 407 and 477 of 2007, decided on 20 February, 2008]
                                                                                 th


        Criminal Procedure Code, 1973—Section 378—Indian Penal Code, 1860—Sections 302 read
with 34, 201 and 404—Conviction and sentence under—Legality of—Appreciation of evidence—
Deceased died due to burn injuries, post-mortem doctor opined—Absence of direct evidence—Entire
case rests on the circumstantial evidence—A-1 took the deceased to the temple in the vehicle—
Witnessed by the three witnesses—Deceased did not return home till the dead body was found—
Extra-judicial confession before Village Administrative Officer, an independent person not inimical
to the accused—Recovery of M.Os. 4, 5 and 6 and the vehicle—Identified by the accused—Sufficient
to indicate the complicity of A-1 in the crime—Recovery of jewels of lady, the gold chain and gold
stud from the possession of A-2 could be convicted under Section 414, IPC—A-3 not found in the
company of the deceased—Absence of connecting link, acquitted of all the charges—Wordy
altercation between deceased and A-1— Occurrence took place within a few hours—Possibility for
sustained provocation—Provisions of Section 304 (Part I), IPC attracted— Conviction and sentence
modified accordingly.              (Paras 10 to 19)
        Counsel.—Mr. K. Jeganathan for A-1 and A-2 in CA 407 of 2007, Mr. Veerakathiravan for A-3 in
CA 477/2007, for the appellants; Mr. P.N. Pandithurai, Additional Public Prosecutor, for the respondent.
                                                Important Point
        Where the prosecution rests its case entirely on the circumstantial evidence, the necessary
circumstances must be placed there by making a complete chain without a snap and pointing to the
hypothesis that except the accused, no one could have committed the offence.
                                                  JUDGMENT
        M. CHOCKALINGAM, J.—This judgment shall govern these two appeals in C.A.Nos.407 and 477 of
2007. The former is brought forth by A-1 and A-2, while the latter is filed by A-3.
        2. All these three appellants stood charged under Sections 120-B, 302 read with 34, 404 and 201 of
IPC. On trial, A-1 to A-3 were found guilty under Sections 302 read with 34 and 201 of IPC, and A-2 was
found guilty under Section 404 of IPC. In respect of charges under Section 120-B of IPC against A-1 to A-
3 and under Section 404 of IPC against A-1 and A-3, they were acquitted. A-1 to A-3 were awarded life
imprisonment along with a fine of Rs.1,000/- and default sentence under Section 302 read with 34 of IPC,
and A-2 was awarded three years Rigorous Imprisonment along with a fine of Rs.500/- and default
sentence under Section 404 of IPC. Hence, these        appeals have been brought forth by the appellants.
        3. The short facts necessary for the disposal of these appeals can be stated as follows:
           (a)     P.W.2 is the son of P.W.20. P.W.21 is the brother-in-law of P.W.2. The deceased
                   Vasantha was the sister of P.W.20. The deceased had no issues. She brought up P.W.2.
                   A-1 had       financial transactions with the deceased and in that account, he was to pay
                   Rs.20,000/-. There was an occasion in which she abused A-1 on a particular day, which
                   was witnessed by P.W.5. On the date of occurrence i.e., 11.8.2004, A-1 came to the
                   house of the deceased, and following a wordy quarrel, A-1 informed her that she must
                   make assurance before the deity at Muniappa Temple and then only he will be ready to
                   make the payment. So saying, he took her in the TVS 50 XL, and this was witnessed by
                   P.W.2 and also by P.W.6. Some time later, P.W.6 found A-1 alone returning with the
                   TVS 50 XL and also taking A-2 and A-3. All of them went together, and this was
                   witnessed by P.W.20 also.
         (b)      P.W.1 is the Village Administrative Officer (V.A.O.) of Pattanakathan Group. At that
                  time on 14.8.2004, when he was at Seethakadhi Stadium, he was informed at about 6.30
                  p.m. by the village assistant one Ramesh, that on the field side of Pattanakathan Village,
                  a dead body of a female was found. Immediately, he proceeded to the place along with
                  him, and after seeing the dead body, he proceeded to Kenikkarai Police Station, the
                  respondent herein. He gave a complaint to P.W.22, the Sub-Inspector of Police, under
                  Ex.P-1, on the strength of which a case came to be registered in Crime No.429 of 2004
                  under Section 174 of Cr.P.C.              Ex.P-25, the printed FIR, was despatched to the
                  Court.
           (c)    P.W.23, the Inspector of Police of that Circle, on receipt of the copy of the FIR, took up
                  investigation, proceeded to the spot, made an inspection and prepared an observation
                  mahazar, Ex.P-2, and a rough sketch, Ex.P-40. He also        conducted inquest on the dead
                  body of Vasantha in the      presence of witnesses and panchayatdars and prepared Ex.P-
                  39, the inquest report. Following the same, the dead body was sent to the Government
                  Hospital along with a requisition for the purpose of autopsy.
           (d)    P.W.16, the Assistant Surgeon, attached to the Government Head Quarters Hospital,
                  Ramanathapuram, on receipt of the requisition, conducted autopsy on the dead body of
                  Vasantha and has issued a postmortem certificate, Ex.P-16, with his opinion that the
                  deceased died due to the burn injuries     sustained by her.
           (e)    The Investigator examined the witnesses and recorded their statements. Further, on
                  15.8.2004 at about 3.00 p.m., when P.W.1, the V.A.O., was in his office, A-1 appeared
                  before him and made a confession, which was recorded. Immediately,                A-1 was
                  produced before the Investigator, and he also gave a confessional statement, which was
                  recorded in the presence of witnesses. The admissible part of the said statement is marked
                  as Ex.P-7. Following the same, A-1 identified A-3.           A-3 also gave a confessional
                  statement in the presence of witnesses, which was recorded. The admissible part is Ex.
                  P-8. Following the same, A-1 and A-3 took the Investigator to a bush and produced a
                  plastic bottle, M.O.4, false hair, M.O.5, and a kerchief, M.O.6, which were recovered
                  under a cover of mahazar, Ex.P-9, in the presence of witnesses. Both A-1 and A-3
                  identified A-2. A-2 also gave a confessional statement. The admissible part is marked as
                  Ex.P-10. Then, he took the Investigator to P.W.9, from whom M.O.8, a gold chain, and
                  M.O.9, a pair of gold stud, were recovered under a cover of mahazar, Ex.P-13, since they
                  were pledged with him by A-2. Thereafter, P.W.9 took the Investigator to the STD
                  Booth where from he produced M.O.12, pledge chit, which was recovered. Then, A-1
                  took the Investigator and produced M.O.10, TVS 50 XL, which was recovered under a
                  cover of mahazar, Ex.P-14. Following the same, all were sent for judicial remand.
            (f)   The Investigator altered the case to Sections 302 and 379 read with 201 of IPC, and the
                  express report, Ex.P-26, was sent to the Court. The material objects recovered from the
                  place of occurrence, from the dead body and from the               accused pursuant to the
                  confessional statements, were           subjected to chemical analysis which resulted in
                  Exs.P-19, P-21 and P-23, the Chemical Analyst’s reports, and Ex.P-22, the Serologist’s
                  report. On completion of investigation, the Investigator filed the final report.
        4. The case was committed to Court of Sessions, and necessary charges were framed. In order to
substantiate the charges, the prosecution examined 23 witnesses and also relied on 40 exhibits and 13
material objects. On completion of the evidence on the side of the prosecution, the accused were questioned
under Section 313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution
witnesses. They denied them as false. No defence witness was examined. The trial Court heard the
arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt in
respect of the murder and also screening evidence and not in other respects. Accordingly, the Court below
found them guilty and sentenced them to imprisonment, which is the subject matter of challenge before this
Court.
        5. Advancing arguments on behalf of the appellants, the learned          counsel made the following
submissions:
      (i)        In the instant case, the prosecution had no direct evidence to offer. The circumstances relied
                 on by the prosecution, were very feeble and very weak. Even the circumstances placed, were
                 not proved by the prosecution pointing to the complicity of the     appellants.
       (ii)      P.Ws.2 and 6, according to the prosecution, saw A-1 taking her to Muniappa Temple on
                 11.8.2004, and thereafter, she did not       return. But, the dead body was found only on
                 14.8.2004, and in between there were two intervening days. Thus, evidence is           available
                 to show that it came to the knowledge of the witnesses earlier. In the instant case, the
                 prosecution has come forward with a false story to state that this was brought to the notice of
                 P.W.1, the V.A.O., by A-1 and thereafter, he went to the police station and gave a complaint
                 on the next day as if A-1 appeared before him and gave an extra-judicial confession. All the
                 available materials are actually prepared by the Police Officer in the Police Station itself and
                 both these persons namely P.W.1, the V.A.O., and his Assistant Ramesh have signed the
                 papers which would be indicative of the fact that the investigation was not at all done. All the
                 records were prepared in the Police station, and hence, that would suffice to reject the
                 prosecution case.
     (iii)       Apart from the above, even assuming that P.Ws.2, 6 and 20 have witnessed A-1 taking the
                 lady that was on 11.8.2004, the dead body was found after a few days, and a complaint was
                 also given. Merely because of the reason that A-1 took her to the temple on that day, it would
                 not mean that he was responsible for the death.
      (iv)       It is true that the vehicle belonged to A-1. But, this vehicle was neither identified nor
                 recovered on confession. All these        confessional statements were prepared by the police
                 personnel for the purpose of strengthening the prosecution case. Mere          signing of all the
                 papers by P.W.1 and his assistant Ramesh would suffice to reject the same.
          6. Added further the learned counsel that in the instant case, as far as A-2 was concerned, some of
the documents were recovered as if they were chits for pledge; that a perusal of the same would clearly
indicate that it cannot be a one which was maintained by the Pawn Broker; that it was actually not pledged
by him; that even according to P.W.9, it was pledged by the wife of A-2 and not by A-2; that P.W.9 would
say that the pledge amount was Rs.7,000/-; but, as per the chit, it was only Rs.1,000/-; that all these details
would go to show that it is not a proof at all; and that as far as A-2 was concerned, there is nothing to
connect him with the crime in question.
          7. It is further contended by the learned counsel that as regards A-3, according to the prosecution,
A-2 and A-3 accompanied A-1, and they were found in the company of the deceased; that as far as A-3 was
concerned, he along with A-1 produced M.Os.4 to 6, and the witnesses are exactly the same; that all would
go to show that A-2 and A-3 have no nexus to the crime, and hence, they are entitled for acquittal in the
hands of this Court.
          8. Added further the learned counsel that even assuming that it was A-1 who caused the death of the
lady, he has got sufficient provocation to act so; that even as per the evidence, during day hours, she asked
A-1 demanding money; that at that time, when he replied that he had no money, the deceased appeared to
have told him “you make payment or hire your wife and make payment”; that this gave him provocation
which, in the ordinary course of things, is a sustained one; that because of that, he has acted so; that under
the circumstances, the act of A-1 would not attract the penal provision of murder, and hence, this legal
aspect has got to be considered by this Court.
          9. The Court heard the learned Additional Public Prosecutor on all the above contentions and paid
its anxious consideration on the submissions made.
          10. It is not in controversy that the dead body of Vasantha, the sister of P.W.20, was found on the
southern field of Pattanakathan Village. Following the inquest made by the Investigator, the dead body was
subjected to postmortem by P.W.16, the doctor, who has opined that she died out of the burn injuries
sustained by her. This fact that she died out of burn injuries was not a subject matter of controversy raised
by the appellants before the trial Court, and hence, without any impediment, it could be factually
recorded so.
          11. In order to substantiate the charges levelled against the accused, the prosecution had no direct
evidence to offer; but, it rested its entire case on the circumstantial evidence. The Court is mindful of the
caution made by law and the rulings of the Supreme Court that in a given case like this, where the
prosecution rests its case entirely on the circumstantial evidence, the necessary circumstances must be
placed thereby making a complete chain without a snap and pointing to the hypothesis that except the
accused, no one could have committed the offence. In the case on hand, the Court has to consider whether
the prosecution has placed sufficient circumstances to accept its case.
         12. As far as A-1 was concerned, there is evidence of P.Ws.2 and 6 and also P.W.20. According to
them, on 11.8.2004 in the noon hours, A-1 came over and there was a wordy altercation between A-1 and
the deceased in respect of the demand of money, and A-1 informed her that he will take her to the temple,
and if she makes assurance before the deity, he is ready to pay the amount. P.Ws.2, 6 and 20 have
witnessed A-1 taking the deceased to the temple in the vehicle. Thereafter, the deceased did not return
home till the dead body was found.
         13. The next circumstance was the extra-judicial concession which was made by A-1 before P.W.1,
the V.A.O. Before accepting the extra-judicial confession, the Court must satisfy whether the evidence of
the person to whom the extra-judicial confession is made, inspires the confidence of the Court. In this case,
P.W.1 is an independent witness, and he is the V.A.O. of that place. At the time when he deposed before
the Court, he has already retired from service, and therefore, he was not under any compelled circumstance
to speak in favour of the prosecution. There is nothing to show that at any point of time, he is ever inimical
to the accused, and hence, he has deposed before the Court that A-1 appeared before him and gave a
confessional statement; that it was recorded by him, and then, he was taken to the Police Officer, to whom
he gave a confessional statement; and that the same was also recorded. Following the same, A-1 has also
produced M.Os.4, 5 and 6 which were identified by him. It is pertinent to point out that the vehicle namely
TVS 50 XL in which A-1 had taken the deceased, was identified by him, and it has also been recovered.
This Court is of the considered opinion that the above circumstances would suffice to indicate the
complicity of A-1 in the crime.
         14. As far as A-2 and A-3 are concerned, this Court is of the considered opinion that they cannot be
found guilty of murder in view of the weak       evidence available. As regards A-2, the strong circumstance,
according to the prosecution, was the recovery of the jewels of the lady, which were marked as M.Os.8 and
9, the gold chain and gold stud respectively. P.W.9 is the pawn broker from whom a chit has also been
recovered. According to P.W.9, it was pledged for Rs.7,000/-; but, the amount found in the chit, is only
Rs.1,000/-. That apart, the person who pledged the same, was not A-2; but, it is found to be his wife. Under
the circumstances, the evidence what is available to that extent cannot be accepted for the purpose of
finding A-2 guilty. It is true that P.W.9 was in possession of the jewels which were actually identified by
P.W.2 that it belonged to the deceased. P.W.9 would say that it was pledged through the wife of A-2. As
far as that evidence was concerned, A-2 had no explanation to offer; but, at the same time, there is no nexus
in order to find him guilty as per the charge of murder or abetment or he had         conspiracy to hatch up.
To that extent, it can be held so. Though not the charge of murder is proved, at the best he could be found
guilty under      Section 414 of IPC for assisting in concealment of stolen property, and hence, A-2 has got
to be convicted so. For this, 3 years’ rigorous imprisonment would meet the ends of justice.
         15. As far as A-3 was concerned, the evidence produced by the          prosecution, was too flimsy,
and there is no connecting link at all. A-3 has got nothing to do with the offence, and there is nothing to
indicate that he was found in the company of the deceased. Hence, A-3 has got to be            acquitted of all
the charges levelled against him.
         16. As regards the second line of argument advanced by the learned counsel for A-1, this Court is
able to see force in that contention. Even according to P.W.2 and also P.W.5, there was a wordy altercation
between the deceased and A-1 during the noon hours, and at that time, when she was demanding money, A-
1 replied that he had no money to pay, and the        deceased told him “if you do not have any money, you
can hire your wife and bring money”. Quite natural, one would be provoked by the same. The occurrence
has taken place within a few hours, and there is all possibility for sustained provocation, and by that, A-1
has acted so. In such circumstances, the act of A-1 cannot be termed as one of murder. But, it would attract
the penal provisions of Section 304 (Part I) of IPC, and awarding punishment of 7 years’ rigorous
imprisonment would meet the ends of justice in the opinion of the Court.
         17. Accordingly, the conviction and sentence of life imprisonment imposed on A-1 by the lower
Court under Section 302 read with 34 of IPC are set aside, and instead, he is convicted under Section 304
(Part I) of IPC and sentenced to undergo seven years’ rigorous imprisonment. The fine amount imposed by
the trial Court under Section 302 read with 34, IPC, shall be treated as fine imposed under Section 304
(Part I) of IPC. The conviction and sentence imposed by the trial Court on A-1 under Section 201 of IPC
are confirmed. The sentence already undergone by him, is ordered to be given set-off. The conviction and
sentence imposed on him under Section 404 of IPC, are set aside, and he is acquitted of that charge. The
fine amounts if any paid by him in that regard, will be refunded to him.
         18. As regards A-2, the conviction and sentence imposed on him by the lower Court under Sections
302 read with 34 and 201 of IPC, are set aside, and he is acquitted of those charges. The fine amounts if
any paid by him in that regard, will be refunded to him. The conviction and sentence imposed on him,
under Section 404 of IPC are set aside, and instead, A-2 is convicted under Section 414 of IPC and directed
to undergo 3 years’ rigorous imprisonment. The sentence already undergone by him, is ordered to be given
set-off.
         19. The judgment of conviction and sentence passed by the lower Court in respect of A-3, is set
aside, and A-3 is acquitted of all the charges leveled against him. The fine amounts if any paid by him, will
be refunded to him. He is directed to be set at liberty forthwith unless his presence is required in
connection with any other case.
         20. In the result, C.A.No.477 of 2007 is allowed. With the above modification in conviction and
sentence, C.A.No.407 of 2007 is dismissed.
                                                                                        Ordered accordingly.

				
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