SHEIK DAWOOD Vs. STATE

JUDGEMENT

(1.) THIS judgment shall govern the above two appeals viz., Crl.A.No,550 of 2008 by A3 and Crl.A.No,562 of 2008 by A1 and A2.

(2.) CHALLENGING the judgment of the Principal District and Sessions Judge, Nagapattinam made in S.C.No,91 of 2006 whereby the appellants in both the appeals stood charged under Section 302 IPC (2 counts) read with 34 IPC, tried and awarded life imprisonment under each count along with the fine of Rs.15,000/- in default to undergo two years Rigorous Imprisonment and also charged under Section 380 IPC and on trial, the appellants were found guilty and awarded three years Rigorous Imprisonment with the fine of Rs.5,000/- in default to undergo one year Rigorous Imprisonment and the sentences are ordered to run concurrently

(3.) ADVANCING arguments on behalf of the appellants, learned Senior Counsel would submit that in the instant case, the prosecution came out with a specific case that the occurrence had taken place on 14.8.2005 at about 1.15 hours, that when both the deceased Sabura Beevi and Fathima Gani, her daughter were inside the house, A1 to A3 entered into the house in a friendly manner and thereafter the first accused closed the door and caused their death and robbed jewels and cash. In order to substantiate the charges levelled against the appellants, the prosecution had no direct evidence to offer. It has relied upon the evidence of Pws.10 and 12 to state that immediately after the occurrence was over, all the three accused came out of the house of Fathima Gani, but, both the witnesses have turned hostile and thus the prosecution rested its case only on recovery pursuant to the confession alleged to have been made by A1 and A3. It is pertinent to point out that the occurrence had taken place on 14.8.2005, but A1 and A3 were arrested only on 31.12.2005, only . In order to identify the jewels, PW2 was examined. According to PW2, he was able to identify only two items of properties and PW.2 has categorically admitted even at the time of chief examination that he was taken to police station within a week from the date of occurrence and he was able to identify the jewels. The Investigator would claim that the accused were arrested on 31.12.2005, i.e. after a period of 4 months. Apart from that, PW2 was able to identify few items of jewels. Further he deposed that he was able to identify the jewels with the help of his brother and not independently. All would go to show that the jewels could not have been identified independently by PW2. Added further, in the instant case, insofar as recovery of the jewels are concerned, there is a material discrepancy in the evidence of investigating officer and the prosecution case. As per the confession statement made by A3, M.O.2 was recovered from him. On the contrary, the investigator has stated that MO.2 was recovered from A2 and not from A3 and that would cast doubt and thus in the instant case, though the prosecution rested its case only on recovery, it did not help the prosecution case. Under such circumstances, it can be stated that the prosecution had no direct or indirect evidence to offer. Under these circumstances, the prosecution has miserably failed to prove the necessary circumstances pointing to the guilt of the accused. The trial Court has taken an erroneous view and hence it is a fit case where the judgment of the trial Court has got to be set aside.