TMI Blog1997 (10) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... These three appellants alongwith two others stood charged of several offences under Sections 120B 148 449 302/34 and 326/34. Out of the five accused persons accused Bellaithai was acquitted by the learned Sessions Judge. Accused Mohd. Rafiq was granted pardon by the Chief Judicial Magistrate on 14.11.1994 while the case had already been committed to the court of Sessions and was pending trial before the learned Sessions Judge. He was examined as approver and is PW-1 in the criminal proceedings. The three accused appellants were also convicted under Sections 120B 449 326/34 IPC and were sentenced to imprisonment for 10 years for conviction under Section 120B, 10 years for conviction under Section 449 and 3 years for conviction under Section 326/34 IPC. The learned Sessions Judge directed the sentences to run concurrently. All of them, however, were acquitted of the charge under Section 148 IPC. The High Court by the impugned judgment apart from affirming the conviction and sentence under Section 302 IPC, as already stated, affirmed the conviction and sentence under Sections 449 326/34 IPC and 120B. 3. The Prosecution case in nutshell is that accused Devendran had given some mone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egs and on account of such strangulation the old lady also died. PW-2 a young girl who was there inside the house then came running but the accused persons threatened her to kill if she makes any sound. Then the accused persons wanted the keys of the house from her and PW-2 gave a particular set of key. Through the help of that key the 2nd and 3rd accused persons opened up a container where in lot of jewels and cash was there. The accused persons brought out a box and filled the same with the cash and jewels. As they could not get the keys of other containers they broke open through a crow-bar and it is at that point of time the blowing of horn of a jeep was heard. PW-2 somehow escaped through the front door to tell her parents, who had gone out, about what has happened in the house. Nagarajan the driver and PW-5 the father of PW-2 rushed into the house and immediately accused Devendran fired at him. Nagarajan sustained the Bullet injuries on his chest and fell down. All the accused persons then took the jewels and cash and then escaped through the staircase. By this time several other people had gathered but nobody could venture to catch hold of the accused persons as they were ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from his daughter PW-2. The learned Sessions Judge as well as the High Court relied upon the evidence of the approver PW-1 having held the same to be trustworthy and having come to the conclusion that the approver's evidence gets corroboration in material particulars from the evidence of the doctor and certain recoveries made from the accused persons. The two courts also believed the evidence of PW-s 2 and 5 which establishes the complicity of the three appellants with the commission of the crime. 4. Mr. Muralidhar, the learned Counsel appearing for the appellants attacked the evidence of PW-1 on several grounds and submitted that the said evidence of the approver cannot at all be relied upon by the prosecution in support of the prosecution case. According to the learned Counsel under Criminal Procedure Code, 1973, the power to grant pardon lies only with the Sessions Judge, once the case is committed to the Court of Sessions, as provided in Section 307 of the CrPC (hereinafter referred to as the 'Code'). Since the Sessions Judge did not exercise his power and on the other hand forwarded the matter to be dealt with by the Chief Judicial Magistrate and ultimately Chie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence, even if believed in toto do not make out the case to be one of the rarest of rare category justifying imposition of the extreme penalty of death and, therefore, the order of the High Court confirming the death sentence has to be set aside. 5. Mr. Mohan, the learned senior counsel appearing for the respondent/ State on the other hand contended that the very object of granting pardon to one of the accused who agrees to be a witness of the prosecution to unfold the entire incident engrafted under Sections 306 and 307 of the Code will be frustrated if a technical view of the provisions is taken and, therefore, no prejudice having been caused by the grant of pardon by the Chief Judicial Magistrate, the said order cannot be held to be beyond jurisdiction. Mr. Mohan, the learned senior counsel further urged that a Sessions Judge has the power to delegate his functions under the Code to a subordinate officer by virtue of Sub-section (3) of Section 10 of the Code and therefore, the impugned direction of the Sessions Judge calling upon the Chief Judicial Magistrate to deal with the application for grant of pardon in accordance with law cannot be held to be without jurisdiction. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Magistrate and there have been no failure of justice on that score, the provisions of Section 465 of the Code get attracted and the conviction and sentence of the accused appellants cannot be reversed. On the question of appreciation of the evidence the learned Counsel urged that when the learned Sessions Judge and the High Court have appraised the evidence and have accepted the same, it would not be appropriate for this Court to enter into the arena of appreciation unless it is established that there has been violation of principles of natural justice or a mis-reading of a vital part of the evidence or the Court have committed an error of law or of the forms of legal process or procedure by which justice itself has failed. Since none of these pre-conditions are satisfied, the learned Counsel urged that this Court should not re-appreciate the evidence and record its own conclusion. In support of this contention reliance was placed on the judgment of this Court in the case of Saravanabhavan and Govindaswamy v. State of Madras 1966CriLJ949 . The learned Counsel further urged that the evidence of the approver gets corroborated from other independent sources to the material particul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... home with the aid of the evidence of the approver. But all the same the legislative mandate as well as the safeguards enshrined in the provisions of the Code for the accused cannot be given a go by merely because of gravity of the offence. With this background in mind it would be necessary to examine the provisions of the Code for testing the correctness of the rival submissions. Coming now to the question as to whether the Chief Judicial Magistrate could have at all granted pardon to the accused even after the committal of the proceedings to the Court of Sessions, the same would depend upon the interpretation of Sections 306 and 307 of the Code. A combined reading of the aforesaid two provisions would indicate that under Section 306 power has been conferred upon the Chief Judicial Magistrate or a Metropolitan Magistrate as well as the Magistrate of the First Class to tender pardon to a person on condition of his making a full and true disclosure of whole of the circumstances within his knowledge relating to the offence. The only distinction between the two sets of Magistrates for exercise of their power lies at the stage when the power can be exercised. While a Magistrate of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that even under Section 307 after commitment of a case a Chief Judicial Magistrate retains the power to grant pardon. It may not be out of place to notice the recommendations of the Law Commission in its 41st Report in paragraph 24.23; 24.23. Under Section 338, the Court of Session may at any time after commitment of the case, but before passing judgment, either tender pardon itself, or may order the committing Magistrate or the District Magistrate to tender pardon. Though this power is rarely resorted to by a Court of Session, it will be useful to retain the Section. But in view of the abolition of the commitment proceedings the Court of Session need not be authorised to direct the committing Magistrate or any other Magistrate to tender pardon. The section may be revised to read as follows: 338. At any time after commitment of a case but before judgment is passed, the Court of Session may, with the view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in or privy to, any such offence, tender a pardon on the same condition to such person. 8. The aforesaid Section has now taken the place of Section 307 in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act but also when there is no Additional or Assistant Sessions Judge. In the case in hand these is not an iota of material to indicate that the pre-conditions for exercise of power under Sub-section (3) of Section 10 of the Code were satisfied or that in fact the Sessions Judge exercised his power under Sub-section (3) of Section 10. In this view of the matter the order of the Sessions Judge dated 27.10.1994 in forwarding the application for grant of pardon to the Chief Judicial Magistrate as well as order of the Chief Judicial Magistrate dated 14.11.1994 granting pardon to the accused who was examined as P.W. 1 is not sustainable in law. It would also be appropriate to deal with submission of Mr. Mohan appearing for the respondent that the expression 'trial' in Section 306(1) would mean trial of an offence triable by the court of sessions and as such a Metropolitan Magistrate or the Chief Judicial Magistrate may tender a pardon to a person even after the commitment of the case to the court of sessions during the course of trial by the sessions judge. We are unable to accept this contention of the learned Counsel as in our view the plain and unambiguous language of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not possess the jurisdiction after an order of commitment is passed. The Chief Judicial Magistrate no doubt was authorised under Section 306 of the Code to tender pardon in course of an investigation, inquiry or trial before the committal of the proceedings to the court of sessions. But after commitment of the proceedings he does not have jurisdiction to grant pardon and in such a case if the said Chief Judicial Magistrate tenders pardon then that would not be a curable irregularity within the ambit of Clause (g) of Section 460 of the Code. This conclusion of ours is further strengthened from the fact that under the 1898 Code, the corresponding provision to Section 460(g) of the 1973 Code was Section 529(g). In the said provision it was specifically stated that if any Magistrate not empowered by law to tender pardon under Section 337 or 338 the same would not vitiate the proceedings. But under Section 460(g) of the new Code the legislatures have omitted Section 307 which is corresponding to Section 338, and therefore, such irregularity committed by the Magistrate cannot be said to be a curable irregularity under Clause (g) of Section 460. 12. The next question that arises for c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er commitment of the proceedings by the Court to which the commitment has been made the legislative mandate is that the pardon would be tendered on the same condition. The expression on the same condition obviously refers to the condition of tendering a pardon engrafted in Sub-section (1) of Section 306, the said condition being the person concerned on making a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence. Sub-section (4) of Section 306 cannot be held to be a condition for tendering pardon. A combined reading of Sub-section (4) of Section 306 and Section 307 would make it clear that in a case exclusively triable by the Sessions Court if an accused is tendered pardon and is taken as an approver before commitment then compliance of Sub-section (4) of Section 306 becomes mandatory and non-compliance of such mandatory requirements would vitiate the proceedings but if an accused is tendered pardon after the commitment by the Court to which the proceeding is committed in exercise of powers under Section 307 then in such a case the provisions of Sub-section (4) of Section 306 are not attracted. The procedural requirement under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have to be examined as a witness twice, namely, once in the court of the Magistrate and again in the Court of Special Judge to whom the Magistrate sends the case for trial but on the other hand if charge sheet is filed in the court of Special Judge itself then the approver is examined only once and this is discriminatory. This Court repelled the said contention advanced on behalf of the accused and held: It is clear from the scheme of Section 337 that what is required is that a person who accepts a tender of pardon must be examined as a witness at the different stages of the proceeding. Where, however, a Special Judge takes cognizance of the case, the occasion for examining the approver as a witness arises only once. It is true that in such a case there would be no previous evidence of the approver against which his evidence at the trial could be tested, which would have been available to the accused had the proceeding been initiated in the court of a Magistrate who under Sub-section (2B) of Section 337 of the Code is required to send the case for trial to the special Judge after examining the approver. But we do not find anything in Sub-section (2B) of Section 337 to suggest th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court held: His evidence has been read by the counsel for the parties before us and his evidence clearly indicates that he attempted to suggest that he did nothing. Neither he stated that he participated in looting nor in injuring or attacking the deceased. Reading to this evidence clearly indicates that he has claimed to be a spectator at every movement but has not participated at any stage. Apart from it the initial story appears also to be unnatural as according to him, he did not know any one of these accused persons but a month before the incident they took him into confidence and told him to join them. After reading the evidence of the witness as whole apparently the impression created is that the version does not appear to be a natural version. In this view of the matter, in our opinion, the testimony is not such which inspires confidence. In Rampal Pithwa's case this Court observed: From all the attendant circumstances, we are satisfied that the approver Ramcharan is not a reliable witness; his arrest was intrinsically unnatural and his self-confessed participation in the crime without taking any active part in it is unacceptable. The approver has claimed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersons but in the matter of killing three persons only accused Devendran played the major role. Yet the statement of the approver cannot be held to be of a purely of exculpatory nature and on that score the evidence cannot be excluded from consideration, particularly when he indicated in his evidence that he brought a bicycle from a cycle shop, took accused No. 2 on the cycle and then took accused No. 3 on the cycle to the place of occurrence, climbed up and reached the chimney of the house, tied the rope to the bricks of the chimney through which he alongwith others got down, took the first victim, a woman, to the next room, went away through the first floor of the house carrying jewels which they had collected and received two golden bangles. These acts on the part of the approver indicate that he participated in the commission of the offence though not to the same extent as accused Devendran and as such, the statement cannot be said to be of exculpatory nature. Mr. Muralidhar, learned Counsel appearing for the appellants further contended that the approver's evidence at any rate has not been corroborated in the material particulars from any independent source connecting each ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 of the Code, inasmuch as there has been no failure of justice. We are unable to accept this contention. Section 465 of the Code is the residuary section intended to cure any error, omission or irregularity committed by a Court of competent jurisdiction in course of trial through accident or inadvertence, or even an illegality consisting in the infraction of any provisions of law. The sole object of the Section is to secure justice by preventing the invalidation of a trial already held, on the ground of technical breaches of any provisions in the Code causing no prejudice to the accused. But by no stretch of imagination the aforesaid provisions can be attracted to a situation where a Court having no jurisdiction under the Code does something or passes an order in contravention of the mandatory provisions of the Code. In view of our interpretation already made, that after a criminal proceeding is committed to a Court of Sessions it is only the Court of Sessions which has the jurisdiction to tender pardon to an accused and the Chief Judicial Magistrate does not possess any such jurisdiction, it would be impossible to hold that such tender of pardon by the Chief Judicial Magistrate c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all. It was about 2.30 a.m. on 24.11.1992 she heard some sound and so she went to her senior grand-mother but the grand-mother asked her not to worry as junior grandmother went to observe and advised her to sleep. Sometime thereafter she heard some galloping sound and so she woke up. She then found that 4 outsiders are there and two of them were strangulating the senior grandmother. She further found that two others gagged the junior grand-mother and then they threatened PW-2 that if she raises any alarm she will be shot. According to her all the accused persons were wearing masks and one of them was holding rifle MO-1. The second accused was holding a pistol and the third one holding a rod while the fourth one was holding a bag. It is her further evidence that when they demanded the key she replied that she does not possess the same and the grand-mother might be having it. The accused persons then removed the key from the bag of the grand-mother and then opened the bureau and removed cash and jewels from the blue colour box. She also stated that she herself gave out the chain, locket, the pair of gold rings to the accused persons. At that point of time she heard the noise of the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the house one of whom on account of gun shot but neither he had seen the actual assault given by anyone of the accused persons on any of the deceased nor had seen the very presence of the accused persons in the house. But all the same, his evidence corroborates the evidence of PW-2 that two grand-mothers were found dead inside the house and it further establishes that the driver Nagarajan who entered into the house after getting down from the jeep was shot at. by the accused persons and ultimately he died on account of such gun shot injury. PW-4 is the mother of PW-2 who had gone to Madurai for the marriage shopping. She corroborates the evidence of PW-3 to the effect that her daughter PW-2 came running from the house as soon as the jeep reached the house and warned them from entering into the house as thieves are there inside. While she was standing outside with her daughter PW-2, the driver Nagarajan and her husband PW-5 as well as the son PW-3 entered inside the house and at that point of time sound of gun blast was heard from inside the house. It is her further evidence that she found her husband coming out of the house holding his chest and she was told that the thieves hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jury which could be removed only in the Hospital at Coimbatore. In addition to the aforesaid evidence of the four inmates of the house with regard to the occurrence in question, the evidence of the Investigating Officer PW-25 who at the relevant time was the Inspector of Police Chinnamannur Circle clearly indicates that on reaching the place of occurrence he found the dead bodies of two ladies as well as the dead body of the deceased Nagarajan and he prepared the Inquest Report in respect of the three dead bodies. He also made some seizure from the place of occurrence and then examined the witnesses and recorded their statements under Section 161 Cr.P.C. The post mortem examination conducted by Dr. N. Manimohan PW-10 on the body of Saraswati Animal clearly indicated that she died due to strangulation and gagging. Similarly the evidence of Dr. R. Anandan PW-11 who had conducted the post mortem examination on the dead body of Deivammal the other lady establishes the fact that she died due to strangulation of the neck and smothering. This evidence fully corroborates the evidence of PW-2 the young girl that two of her grand-mothers were strangulated by the accused persons. The evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the house of accused Devendran. It was further established that MO-78 seized from the house of accused Devendran as well as empty cartridges seized under Mazahar 28 are similar in nature. The Ballistic expert PW-24 in his evidence stated that while conducting test on the pistol with dummy rounds he observed the similarity of the markings of the earlier firing and he ultimately came to the conclusion that MO-79 empty cartridges must have been fired by using the pistol MO-2. The report of the Ballistic expert is Exhibit P-24. MO-2 was seized under Mazahar Exhibit P-37. on the basis of the statement made by accused Devendran while in custody. The aforesaid evidence unequivocally indicates that the pistol which was used for shooting driver Nagarajan and injured PW-5 was the pistol belonging to the accused Devendran and the empty cartridges recovered from the house of Devendran also corroborates to the aforesaid conclusion. The jewellery belonging to the informant were recovered on the basis of the statement of accused Devendran are MOs-16 to 23, MOs-24 to 28 and MOs-30 to 59. PW-4 not only identified those jewellery but also stated that these ornaments had been taken away by the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons concerned from whom the recovery is made are all factors which are to be taken into consideration in arriving at a decision. In the case of Baiju v. State of Madhya Pradesh [1978]2SCR594 , this Court had held that the prosecution having succeeded in proving beyond any doubt that the commission of the murders and robbery formed part of one transaction and the recent and unexplained possession of the stolen property by the appellant justified the presumption that it was he and no one else, who had committed the murders and the robbery. In the said case the offence had been committed on the night of January 20 and 21, 1975 and the stolen property was recovered from the house of the appellant on January 28, 1975. 27. In the case of Shivappa and Ors. v. The State of Mysore 1971CriLJ260 the same question was considered by this Court. This Court had said If there is other evidence to connect an accused with the crime itself, however small, the finding of the stolen property with him is a piece of evidence which connects him further with the crime. There is then no question of presumption. The evidence strengthens the other evidence already against him. It is only when the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down to determine whether possession is recent or otherwise and each case must be judged on its own facts. The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according to the stolen article is or is not, calculated to pass readily from hand to hand. If the stolen articles were such as were not likely to pass readily from hand to hand, the period of one year that elapsed cannot be said to be too long particularly when the appellant had been absconding during that period. 29. In the case of Gautam Maroit Umale v. State of Maharashtra , on the other hand this Court held mere recovery of ornaments belonging to the deceased at the instance of the accused did not connect him with the murder and at the most he can be convicted for possession of stolen property under Section 411 IPC. To the same effect is the judgment of this Court in Union Territory of Goa v. Bea Ventura D'Souza and Anr. 1993CriLJ181 . Bearing in mind the principles laid down in the aforesaid cases and on examining the facts and circumstances of the present cases which have been established by the prosecution beyond reasonable doubt there cannot be any hesita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d persons for the charge of murder cannot be sustained and is accordingly set aside, but instead they are convicted under Section 411 IPC and are sentenced to rigorous imprisonment of three years each. 30. Coming now to the question of the sentence for conviction of accused Devendran under Section 302, as has been stated earlier, he has been sentenced to death by the learned Sessions Judge and the said sentence has been affirmed by the High Court. From the prosecution evidence it is apparent that there was no premeditated plan to kill any person and the main objective was to commit robbery. In course of the incident as stated by PW-2 when the two old ladies got up and rushed towards culprits one of them strangulated them one after the other. The post mortem report also indicated that the death of the two ladies are on account of strangulation. The learned Sessions Judge awarded death sentence to accused Devendran on the ground that as soon as the driver Nagarajan entered into the house said Devendran shot the gun which hit Nagarajan and he died. This itself cannot be held to be sufficient to hold that it is an act of an depraved mind. The number of persons died in the incident i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence of PW-2, PW-5 and the recovery of the pistol which was used for the commission of murder from the house of said Devendran as well as the recoveries of ornaments and other jewelleries belonging to the informant recovered from the house of Devendran on the basis of his statement, while in custody and those jewelleries being identified by PW-4. The aforesaid evidence by no stretch of imagination brings the case in hand to be one of the rarest of rare cases where the extreme penalty of death can be awarded. Accordingly, though we uphold the conviction of accused Devendran under Section 302 IPC but we set aside the sentence of death awarded by the learned Sessions Judge and affirmed by the High Court and instead commute the same by imprisonment for life. So far as the conviction of the appellants under Section 120B IPC is concerned, in view of our conclusion arrived at and the evidence of the approver being out of consideration the said charge cannot be said to have been established beyond reasonable doubt and accordingly all the appellants are acquitted from the said charge. 33. So far as the conviction under Section 449 IPC is concerned, for the same reasonings the convicti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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