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2019 Supreme(Mad) 2143
IN THE HIGH COURT OF MADRAS
M.M. Sundresh, M. Nirmal Kumar, JJ.
Sakthivel - Appellant
Vs.
State, Represented By Inspector of Police, Krishnagiri - Respondent
Criminal Appeal No. 627 of 2017
Decided On : 23-07-2019
R. Sankarasubbu, Adv., R. Prathap Kumar, Adv.
Headnote:
Indian Penal Code - Sections 364, 387 and 302 - Indian Evidence Act - Section 27- Offence of murder – Injury - Recovery was made in pursuant to confessional statement - School mate and classmate of deceased - They are witnesses who spoke on Last Seen Theory - On fateful day they saw appellant taking the deceased on opposite direction through - They accordingly informed Pbeing the parents of deceased – Thereafter gave a complaint under before Police Station - Appellant was arrested at about 12.30p.m., on that day. Recovery was made in pursuant to confessional statement given by appellant before Administrative Officer - Who is the Inspector of Police, has registered complaint given by under Information Report - Thereafter, he prepared Exs.P2 and P4-Observation –Sketches appellant was arrested by as stated above - After alteration First Information Report, Ex.P13 - Rough Sketch was prepared - Under Form- 95 was prepared, after preparation of Inquest Report under followed by recovery – Held, At one time it was held that the expression "fact discovered" in section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact - Now it is fairly settled that the expression fact discovered includes not only physical object produced, but also place from which it is produced and the knowledge of accused as to this State of Uttar Pradesh - In the recent judgment, the Apex Court in State of Chhattisgarh that what is admissible is discovery of relevant fact which is linked between fact discovery and the crime. For better appreciation, the relevant passage is placed on record – Hence Court are of view that fact discovered cannot be seen on a hyper technical view - It also involves mental fact - In such view of matter contention of learned counsel for appellant that discovery having been made in an open place and at the relevant point of time, few others were also present and therefore, Section 27 of Indian Evidence Act, 1872 has got no application deserves to be rejected - Insofar as an alleged non compliance of the arrest intimation is concerned, no such plea was taken before the trial Court - Therefore the said contention also deserves to be rejected - Court find that trial Court has rightly considered all the materials - There is absolutely no reason to disbelieve evidence adduced, particularly circumstances are clearly interlinked with the existence of chain of events pointing out to guilt of appellant was not able to discharge his burden after having seen with deceased travelling in opposite direction in – Thus Court do not find any reason to interfere with conviction rendered by trial Court - Court shall now Endeavour to apply the exception postulated in Section 27 of Indian Evidence Act – Appeal dismissed
JUDGMENT :
M.M. Sundresh, J.
The appellant, who is the sole accused in S.C.No.17 of 2013 on the file of Additional District and Sessions Court, Hosur, has convicted for the offences punishable under Sections 364, 387 and 302 IPC, seeks to set aside the same in this appeal.
2. Prosecution version:-
2.1. The appellant/accused and the P.W.1-Raja, who is the father of the deceased-Ayyappan, are relatives. The appellant sought for a hand loan, which was declined by P.W.1. With the intention of extracting money, the appellant obstructed the deceased, the son of P.W.1, studying in 6th Standard. On 21.10.2011, at about 5.30p.m., the deceased while coming from the school, the appellant in his TVS-50 moped marked as M.O.5. strangulated him at the place of occurrence in pursuant to the resistance made and thus, committed the offence.
2.2. P.W.4-Harish and P.W.5-Srinivasan are the school mate and classmate of the deceased. They are the witnesses, who spoke on the Last Seen Theory. On the fateful day, they saw the appellant taking the deceased on the opposite direction through M.O.5-TVS-50. They, accordingly, informed P.Ws.1 and 2 being the parents of the deceased. Thereafter, P.W.1 gave a complaint under Ex.P1 on 22.10.2011 at about 10.00a.m., before the Royakottai Police Station. The appellant was arrested at about 12.30p.m., on that day. Recovery was made in pursuant to the confessional statement given by the appellant before P.W.7-Village Administrative Officer.
2.3. P.W.10-Thangavel, who is the Inspector of Police, has registered the complaint given by the P.W.1 under Ex.P10-First Information Report in Crime No336 of 2011. Thereafter, he prepared Exs.P2 and P4-Observation Mahazars and Exs.P11 and P13 -Sketches. The appellant was arrested by P.W.10 as stated above. After alteration of Ex.P12-First Information Report, Ex.P13 - Rough Sketch was prepared. Under Ex.P15, Form- 95 was prepared, after preparation of Inquest Report under Ex.P14, followed by recovery of M.O.5.
2.4. P.W.9 is the Doctor, who conducted post-mortem and gave Ex.P7- case report. P.W.11, who is the Circle Inspector, continued the investigation and filed the Final Report.
3. The appellant was placed with the incriminating materials and questioned under Section 313 -A of the Criminal Procedure Code. There was only mere denial by the appellant. Before the Trial Court, the prosecution examined the witnesses in P.Ws.1 to 11 and marked Exs.P1 to P15 and M.Os.1 to 5 in pursuant to the discovery made. M.O.No.3 is the muffler used for the offence. The appellant did not choose to examine himself or any other witness and not marked any document.
4. P.W.1, who is the father of the deceased and the author of Ex.P1-complaint, has deposed about the motive. He has stated that after the occurrence, he saw the appellant in the police Station P.W.1 has further stated that P.Ws.4 and 5 informed him that the deceased was taken by the appellant in M.O.5-TVS-50 on 21.10.2011 at about 5.00p.m.
5. P.W.3-Balan is the relative of P.W.1 and the appellant. He has spoken about the incident leading to motive. In his cross-examination, he has stated that the appellant was arrested on the next day morning.
6. P.Ws.4 and 5 being the friends and schoolmates of the deceased, spoke about the presence of the appellant with the deceased together going in M.O.5-TVS-50 in the opposite direction. P.W.4 has stated that he has been examined by the police while in his cross-examination, he stated that it is not stated so. P.W.5 also stated about the examination of the police. They have further deposed that they have informed P.Ws.1 and 2 about the incident involving the travelling of the appellant with the deceased. P.W.6-Nagaraj is the witness of Observation Mahazar-Ex.P4. P.W.7-Village Administrative Officer has recorded the confession statement given by the appellant followed by recovery. Arrest was stated to have been made according to P.W.7 at about 12.30p.m. He denied that the appellant was arrested in the morning. P
