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IN THE HIGH COURT OF MADRAS
S. Nagamuthu, V. Bharathidasan, JJ.
Mohamed Gouse & Ors. - Appellants
Versus
State by Inspector of Police, B-3, Kanchi Taluk Police Station, Kanchipuram District - Respondent
Criminal Appeal Nos. 563, 683, 693 and 546 of 2015
Decided On : 27.07.2016.
Indian Penal Code, 1860 – Sections 120(B), 364, 147, 342, 302, 201, 379, 465 r/w 114 & 468 r/w 114 - Criminal Procedure Code, 1973 - Section 313 - Indian Evidence Act - Section 114 and 65B – Criminal Trial – Offences of Criminal Conspiracy and Murder – A forcibly carries or entices B away from his home in order that B may be murdered - Appeal against conviction - Deceased in this case was one - He was a taxi Driver by profession. P.W.4, owned a taxi - It was an Innova Car. A.1 to A.5 are close associates - All these five accused conspired together to abduct deceased along with Car, under guise of engaging the said Car to go to Airport, to kill him and to steal away Car – While on investigation the dead body of a male was found by A Village Assistant in a coconut grove at Village - On information received from P.W.1, then Village Administrative Officer of Village, went to said place and found dead body - Identity of dead body was not known - Both hands of deceased were found tied together behind - Eyes were also tied with a cloth - P.W.1 suspected that deceased could have been killed by somebody - Who caused death of deceased - Held, A.1 gave a disclosure statement, out of which, A.3 was identified and located and form out of disclosure statement made by A.3, stolen car (M.O.6) was recovered - Thus, A.1 was in conscious possession of car in question (M.O.6) and A.3 was in physical possession of car (M.O.6) soon after commission of theft - A.1 & A.3 have no explanation to offer for same - It is crystal clear that prosecution has proved guilt of A.1 & A.3 alone - Though, prosecution has made reliance on call details obtained from the service providers of cell phones used by accused and deceased, court are unable to rely on same since, these documents have not been proved properly as required under Section 65B of Indian Evidence Act - As per judgment of Honble Supreme Court in Anvar v. P.K. Basheer And Others reported in 2014 [10] SCC 473, these documents showing call details are inadmissible in evidence as primary evidence for want of proper certificates – Therefore court do not refer to these documents - Prosecution has proved that A.1 and A.3 have committed offences punishable under Sections 302 r/w 34, 364 & 379 r/w 34 I.P.C – Court unable to convict accused for robery as there is no charge - Now, turning to quantum of punishment imposed as against A.1 & A.3, it also does not require any interference at hands of this Court - Crl.A.Nos.546 and 693 of 2015 are allowed - Crl. A.No.563 and 683 of 2015 is partly allowed.
S. Nagamuthu, J.
The appellant in Crl. A. No.563 of 2015 is A.1; the appellant in Crl.A.No.546 of 2015 is A.2; the appellant in Crl.A.No.89 of 2015 is A.3; the appellants in Crl.A.No.683 of 2015 are A.3 & A.4 and the appellant in Crl.A.No.693 of 2015 is A.5 in S.C.No.99 of 2014, on the file of the learned Sessions Judge No.2, Kancheepuram. The trial Court framed charges against all the accused as detailed below:-
Accused Section of law
A.1 120(B), 364, 147, 342, 302, 201, 379, 465 r/w 114 & 468 r/w 114 I.P.C.
A.3 120(B), 364, 147, 342 & 302 r/w 149, 379 r/w 114, 465 & 468 I.P.C.
A.4 120(B), 364, 147, 342, 302 r/w 149, 201, 379, 465 & 468 I.P.C.
A.5 120(B), 364, 147, 302 r/w 149, 201 379, 465 r/w 114 & 468 r/w 114 I.P.C.
All the accused denied the above charges framed against them. By judgment dated 10.08.2015, the trial Court convicted & sentenced all the five accused as detailed below:-
Sl. No. Accused Section of law Sentence
1 A.1 to A.5 120(B) I.P.C. Rigorous imprisonment for seven years and to pay a fine of Rs.1,000/- each in default to undergo rigorous imprisonment for six months.
2 A.1 to A.5 364 I.P.C. Rigorous Imprisonment for ten years and to pay a fine of Rs.1,000/- each, in default to undergo rigorous imprisonment for six months.
3 A.1 to A.5 147 I.P.C. Rigorous Imprisonment for two years and to pay a fine of Rs.500/- each, in default to undergo rigorous imprisonment for three months.
4 A.1 to A.4 342 I.P.C. of Rs.1,000/- each, in default to undergo rigorous imprisonment for three months.
5 A.1 302 I.P.C. Imprisonment for life and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for six months
6 A.2 to A.5 302 r/w 149 I.P.C. Imprisonment for life and to pay a fine of Rs.1,000/- each in default to undergo rigorous imprisonment for six months.
7 A.1, A.2, A.4 & A.5 201 I.P.C. Rigorous Imprisonment for seven years and to pay a fine of Rs.1,000/- each, in default to undergo rigorous imprisonment for
8 A.1, A.2, A.4 & A.5 379 I.P.C., Rigorous imprisonment for three years and to pay a fine of Rs.1,000/- each in default to undergo rigorous imprisonment for six months.
9 A.3 379 r/w 114 I.P.C. Rigorous imprisonment for three years and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for six months.
10 A.3 & A.4 465 I.P.C. Rigorous Imprisonment for two years and to pay a fine of Rs.1,000/- each, in default to undergo rigorous imprisonment for three months.
11 A.1, A.2 & A.5 465 r/w 114 I.P.C. Rigorous Imprisonment for two years and to pay a fine of Rs.1,000/- each, in default to undergo rigorous imprisonment for three months.
12 A.3 & A.4 468 I.P.C. Rigorous Imprisonment for seven years and to pay a fine of Rs.1,000/- each, in default to undergo rigorous imprisonment for six months.
13 A.1, A.2 & A.5 468 r/w 114 I.P.C. Rigorous Imprisonment for seven years and to pay a fine of Rs.1,000/- each, in default to undergo rigorous imprisonment for six months.
The trial Court has ordered the above sentences to run concurrently. Challenging the said conviction and sentence, the appellants/A.1 to A.5 are before this Court with these Criminal Appeals.
2. The case of the prosecution, in brief, is as follows:-
The deceased in this case was one Mr. Balaraman. He was a taxi Driver by profession. P.W.4, owned a taxi bearing registration No. TN 23 AM 6669. It was an Innova Car. A.1 to A.5 are close associates. On 15.04.2014, all these five accused conspired together to abduct the deceased along with the Car, under the guise of engaging the said Car to go to Chennai Airport, to kill him and to steal away the Car.
3. The deceased left his house at 7.00 am on 16.04.2014 with the said Car (M.O.6). The said car was engaged through one Mr. Nagaraj. Since, the Car did not return, P.W.4 enquired the wife of the deceased (P.W.2). P.W.2 informed him that the deceased left the house at 7.00 am on 16.04.2014 but did not return thereafter. Therefore, on the advice of P.W.4, P.W.2 went to Vellore Taluk Police Station and
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