R MARUTHAMUTHU Vs. STATE

JUDGEMENT

(1.) THIS Criminal Appeal is preferred against the judgment dated 27. 02. 2002 rendered in S. C. No. 26 of 2001 by the Court of Additional Sessions Judge-cum-Chief Judicial Magistrate, Perambalur, thereby convicting the appellant/first accused for the commission of offence punishable under Section 302 I. P. C. and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 1000/- in default to undergo rigorous imprisonment for a further period of six months and under Section 404 I. P. C. sentencing him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 500/-, in default to undergo rigorous imprisonment for a further period of three months, further directing to run the sentences concurrently.

(2.) IT is relevant to clarify at this juncture that the charges as framed by the trial Court was against the appellant/convict and yet another accused, namely, Selvaraj, S/o. Rathinam, who is the appellant in Crl. A. No. 384 of 2002 at the instigation of whom on 23-12-1996 at about 16. 30 hours in the cotton field belonging to one Narayanasamy in Koulpalayam Village of Ariyalur the appellant herein, who was the first accused tied around the neck of one Papathi, who was born dumb with intend to steel her jewels and committed murder of the said Papathi, while she was working in the cotton field, thus committing the offence punishable under Section 302 I. P. C. Consequently, on the same day at the same time and place and in the course of the same transaction the appellant/convict at the instigation of the second accused one Selvaraj by removing from the dead body of the deceased Papathi one pair of ear studs and one nose stud, thus dishonestly misappropriating those jewels and hence, became liable to be prosecuted and punished for the commission of the offence under Section 404 I. P. C. and hence, the appellant/convict became charged for the offences punishable under Sections 302 and 404 I. P. C. and the second accused therein, namely, Selvaraj having instigated the first accused for committing the murder of the deceased and dishonestly misappropriating her jewels and thereafter purchased the said jewels knowingly they were the dishonestly stolen properties from the dead body of the deceased and further since, he was in the habit of receiving the stolen properties from the first accused in a routine manner knowingly that they were stolen properties and with intend to obtain wrongful gain and therefore, became punishable under Sections 302 read with 109 and Section 404 read with 109 I. P. C. and under Sections 411 and 413 I. P. C.

(3.) BASED on the above charges the trial Court having conducted the trial against the appellant/convict and the second accused therein found both of them guilty of the respective offences charged, as a result of which, the appellant was found guilty of both the offences and was convicted and sentenced to undergo imprisonment and to pay the fine as extracted in paragraph 1 above. Likewise, the second accused therein, namely, Selvaraj was also convicted and sentenced with life imprisonment and other imprisonments under the other Sections and the said second accused having preferred a separate Criminal Appeal against his conviction and sentence, the appellant/first accused has come forward to prefer the above Criminal Appeal on certain grounds such as (i) that the trial Court failed to consider that there was no eye witness to the occurrence; (ii) that the Court below has erred in placing reliance on the evidence of P. W. 5, who claimed that he saw the appellant around 3. 00 p. m. on the date of occurrence, near the cotton field, where the deceased was collecting cotton; (iii) that the lower Court has erred in placing reliance on the identification parade conducted by P. W. 8 on 29-04-2000 in a belated manner; (iv) that the said identification parade was not conducted in the manner required under law and in accordance with the procedures laid down by law; (v) that the Court below failed to consider that the appellant was arrested belatedly and there was no direct evidence to implicate him; (vi) that the alleged recovery of the properties concerned in this case from the second accused on 1-7-1999 is inadmissible under Section 27 of Indian Evidence Act; (vii) that the properties in M. Os. 1 and 2 have not been identified by P. W. 1 as that of belonging to the deceased; (viii) that the trial Court has erred in not considering that P. W. 7, who attested the confession statement of the accused has given a different place of arrest in other cases and (ix) that the reasons assigned by the Court below are contrary to law, weight of evidence and probabilities of the case.