UMAPATHY Vs. STATE

JUDGEMENT

(1.) ONE Umapathy, accused No. 3 in Sessions Case No. 318 of 2001 on the file of First Additional Sessions Judge, Chennai, who suffered the sentence of life imprisonment, has filed Criminal Appeal No. 1057 of 2003. The second accused, viz. , Kumar @ Kalyan Kumar and the first accused, viz. , udyakumar in the same Sessions Case questioning their conviction and sentence to undergo life imprisonment under Section 397 r/ w 395 IPC, have filed criminal Appeal Nos. 1515 and 1272 of 2003 respectively.

(2.) THE case of the prosecution is briefly stated hereunder: (a) PW. 1 Renuka Devi is working as a Security in Testiny Company at villivakkam. PW. 2 is the Manager and PW. 3 is a staff of the above said company. On 7. 01. 1998, PW. 2 Sampath, went to Canara Bank at 9. 15 a. m. to encash a cheque and at about 11. 00 a. m. while he was returning along with pw. 3 with a cash of Rs. 2 lakhs, two persons threatened PW. 2 Sampath, to handover the cash. PW. 2 was beaten by the said persons with stick. Other two persons, armed with knife, came in a motor cycle and cut PW. 2 on his right hand upper part. PW. 3 Dilli Babu rushed to the Company and brought some people from the Company. On seeing the people, accused persons ran away from the scene of occurrence. (b) PW. 2 was taken to Hospital for treatment. PW. 1 went to the Police Station and lodged a complaint, which is marked as Ex. P1. Among four persons, who are involved in the offence, three of them fell into a nearby oil tank and one person escaped in the motor cycle in a different direction. Two persons came out of the tank after some time and the second accused is one among the two persons. Those two persons were found in possession of Rs. 1,05,000/-, which was handed over to the police. (c) Third person was found dead in the tank and a cash of Rs. 50,000/- was recovered from his underwear. The bag in which the cash was found is MO. 1 and mo. 2 and MO. 3 series are the cash of Rs. 1,05,000/- and Rs. 50,000/ -. MO. 4 is the Motor cycle used by the accused in the scene of occurrence. PW. 1 identified the 2nd accused during the identification parade. (d) PW. 3 and PW. 4 were also examined and they corroborated the evidence of pws. 1 and 2. PW. 5 is working as Head Constable at Choolaimedu Police Station. On 07. 01. 1998, while he was working as Gr. I constable at I. C. F. Police station, at about 12. 00 noon, 4 persons came in a two wheeler and two auto-rickshaws came behind the two wheeler and they shouted "catch the thief". On hearing this, PW. 5 stopped the two wheeler and the persons who came in the two wheeler threatened to stab PW. 5 with knife and leaving the two wheeler, three of them ran towards north another person ran towards south. Later, 3 persons jumped into a tank and two of them were taken out of the tank and those persons are 1st and 2nd accused. PW. 6, saw a person with injuries. (e) On 07. 01. 1998 evening, the police visited the place of occurrence and prepared Observation Mahazar Ex. P2 and the signature of PW. 6 in the mahazar is marked as Ex. P3. PW. 7 is the Cashier of Canara Bank, who deposed that PW. 2 encashed a cheque and received two lakhs rupees from him. Police and the public caught two persons from the tank. PW. 9 deposed that ICF police prepared a mahazar near the Tank and the dead body was recovered from the tank. Rs. 50,000/-, one gold chain, one five rupee coin, one rupee coin in one number and one thulasi malai were recovered under mahazar Ex. P4. (f) PW. 10 identified the 3rd accused and deposed that A. 3 was working in his company and the 3rd accused is the root-cause for the incident and the statements of accused are marked as Exs. P. 7 to P. 9. The recovery is said to have been effected from the accused under Form-95. (g) PW. 11 Dr. Basheer Ahamed examined PW. 2 Sampath and found the following injuries. 1. A cut injury measuring 8 x 2 cm full depth - skull right parietal region. 2. A cut injury "y" shaped from centre of the scalp extending to left parietal and temporal region 15 cm with fracture skull. 3. A cut injury over right frontal region 5 x 1 x 1 cms. 4. A cut injury over forehead 3 x 1 x 1 cm. 5. A laceration measuring 5 x 1 x = cm over left cheek below left ear. 6. A cut injury 3 x = x = cm over right shoulder. 7. A cut injury over left shoulder, scapular region with fracture scapula 5 x 2 x ? depth. 8. A cut injury ? Stab over right shoulder measuring 10 cm. below shoulder joint 5 x 2 x ? depth. 9. A cut injury 1 x 1 x = cm left arm. 10. A cut injury measuring 5 x 1 x ? cm depth over left thigh. PW. 11 offered his opinion that the above injuries sustained by PW. 2 Sampath are grievous in nature. He issued wound certificate Ex. P. 10. (h) PW. 13 Ramesh, Sub-Inspector of Police, ICF Police Station received the complaint from PW. 1 and registered a case in Crime No. 38 of 1998 under section 174 Cr. P. C. in respect of the death of one Ramu, who allegedly accompanied the accused 1 to 3. Tahsildar conducted inquest over the dead body of Ramu and found a sum of Rs. 50,000/- in cash and 5 rupees coin one, 50 paise coin one, gold chain weighing 1 sovereign, one Thulasi Malai and one spectacles in gold frame. The above articles were recovered under mahazar ex. P12 in the presence of witnesses. Subsequently, cash of Rs. 50,000/- was handed over to Crime Branch Police, Villivakkam. The printed First information Report registered under Section 174 Cr. P. C. for the death of one ramu is Ex. P13. (i) PW. 14 Murugesan, Inspector of Police (since retired) registered a case on the complaint preferred by PW. 1 on 7. 1. 1998 at about 12. 45 p. m. in Crime no. 63 of 1998 under Section 397 and 506 (ii) IPC. The printed First information Report is Ex. P14. All the accused were arrested in the presence of Navis Fernando (PW. 10) and Krishnamurthy and confession statements were recorded from the accused Kumar @ Kalyan Kumar and Udayakumar at 1. 15 p. m. and 2. 00 p. m. respectively. The Investigating Officer recovered cash of rs. 1,05,000/- and one Hero Honda Motor cycle bearing Registration No. TN 01 3121 from the complainant. Those items were recovered under Form-95, which are marked as Exs. P5 and P6. (j) The Investigating Officer inspected the place of occurrence and prepared a rough sketch Ex. P15 and Ex. P2 Observation Mahazar. The Investigating Officer recovered two casuarina sticks, which are marked as MO. 5 series. He examined pws. 1 to 4, 7 and others and recorded their statements. On 08. 01. 1998, both the accused were produced before the XIII Metropolitan Magistrate, Egmore, chennai and the accused were taken into police custody. Police took the accused Kalyan Kumar and Udhayakumar to Mortuary, where they identified the dead body of Ramu. On 15. 01. 1998 at 1. 00 p. m. , the Investigating Officer arrested the A. 3 Umapathy @ Kutty at Thiru. Vi. Ka. Nagar, Othavadai Street, gopalapuram Junction Road and the above accused handed over Rs. 175/- to the investigating Officer which was recovered under the cover of mahazar Ex. P16. A. 3 made a confession statement and the admissible portion is marked as ex. P17. On the basis of the confession statement, the accused Umapathy produced Suzuki Samurai Motor cycle which was recovered under mahazar Ex. P18. All the accused and the properties were produced before the concerned magistrate. PW. 14 examined Medical officer PW. 11 Dr. Basheer Ahamed. (k) PW. 12, the XV Metropolitan Magistrate, George Town, Chennai, conducted the identification parade, wherein PW. 1 identified 1st accused and PW. 3 identified 1st and 2nd accused. The proceedings are marked as Ex. P11. (l) After completing investigation, PW. 14 filed a charge sheet under Section 397 IPC, 395 IPC and 506 (ii) IPC as against all the three accused.

(3.) WHEN the accused were questioned under Section 313 Cr. P. C. with reference to the incriminating circumstances found against them, in the evidence of prosecution witnesses, they denied the same. Accused have not examined any witness on their side.