THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN Crl.A.No.238 of 2006 Lakshmanan ... Appellant vs.
State rep. By The Inspector of Police, Erode Taluk Police Station, Erode.
(Crime No.19 of 2001) ... Respondent Criminal appeal preferred under Section 374(2) Cr.P.C., against the judgement dated 22.07.2005 passed by the learned Principal Assistant Sessions Judge, Erode, in S.C.No.3 of 2005.
For Appellants : Mr.A.M.Rahamath Ali For Respondent : Mrs.M.F.Shabana Government Advocate(Crl. Side) JUDGMENT The second accused in Sessions Case No.3 of 2005 on the file of the learned Principal Assistant Sessions Judge, Erode, is the appellant herein. He stood charged for the offence under Section 395 r/w 397 IPC. Originally, there are six accused in this case.
Since A-1 to A-4 were absconding, the trial Court split up the case in S.C.No.3 of 2005 and A-5 and A-6 were faced the trial. The Trial Court, after trial, by Judgment dated 22.07.2005, convicted the accused 1 and 2, under Section 395 r/w 397 IPC and sentenced them to undergo eight years rigorous imprisonment and imposed a fine of Rs.500/- each, in default, to undergo rigorous imprisonment for six months each. Challenging the above said conviction and sentence, the appellant/second accused is before this Court with this Criminal Appeal.
2. The case of the prosecution, in brief, is as follows:
(i) P.W.1 is the retired employee of Tamil Nadu Electricity Board. He along with his family members were residing at No.33,Kakkanji Nagar, Periyasadaiyampalayam Road at Erode. On 23.01.2001, at about 2.00 a.m., in the early morning, four persons covered their face, broke open the door and went inside the house, carrying weapon in their hands, threatened them and snatched 48 sovereigns of gold jewels and then, they opened the bureau and stolen Rs.7,500/-, and ran away from the scene of occurrence. Thereafter, on the next day, P.W.1 has given a complaint before the respondent police station.
(ii) P.W.8, the Sub Inspector of Police, working in the respondent police station, on receipt of the complaint from P.W.1, registered a case in Crime No.19 of 2001 for the offence under Section 392 of IPC and prepared a first information report[Ex.P11] and sent the same to the higher officials.
(iii) P.W.9, the Inspector of Police, working in the respondent police station, on receipt of the first information report, commenced the investigation, proceeded to the scene of occurrence, prepared an observation mahazar[Ex.P12] and a rough sketch [Ex.P13]. He engaged a sniper dog and sent a requisition letter to the finger print experts. Then, he examined the witnesses and recorded their statements and handed over the investigation to P.W.10.
(iv) P.W.10, the Inspector of Police, working in the respondent police station, continued the investigation. He examined the witnesses and recorded their statements and formed a special team to trace the accused. On 06.02.2002, he arrested some of the the accused near Nirangampalayam, and on such arrest they had voluntarily given a confession and based on the disclosure statement, the jewels pledged in the Agricultural Co- operative Bank at Velliyankadu was recovered from the Cooperative Bank. Thereafter, P.W.10 arrested the other accused and on such arrest, they have voluntarily given confession and based on the disclosure statement, he recovered some more jewels. Thereafter, he handed over the investigation to P.W.11. P.W.11, the Inspector of Police, working in the respondent police station, continued the investigation and after completion of investigation, he laid charge sheet before the jurisdictional Court.
3. Based on the above materials, the Trial Court framed charges as detailed above and the accused denied the same as false. In order to prove the case of prosecution, as many as 11 witnesses were examined and 15 documents were exhibited 6 material objects were marked.
4. Out of the said witnesses examined, P.W.1 is the victim in this case. According to him, on 24.01.2001 at about 2.00 a.m., he along with his family members were sleeping in the house. At that time, four persons covering their face, broke open the back door, went inside the house, opened the bureau, and had stolen Rs.7,500/- and also snatched 48 sovereign of gold jewels and threatened them with dire consequences and ran away from the scene of occurrence. On the next day, he has given a complaint before the respondent police. Subsequently, he identified the jewels in the police station. P.W.2 is the wife of P.W.1. According to her, on 24.01.2001 at about 2.00 a.m., four persons covered their face and entered into the house with dangerous weapon, threatened them and they snatched 48 sovereigns of gold jewels and stolen of Rs.7,500/- and they ran away from the scene of occurrence. Thereafter, she identified the jewels in the police station. P.W.3 is the son-in-law of P.W.1. He was also staying at P.W.1's house on the date of occurrence.
According to him, on the date of occurrence at about 2.00 a.m., six persons went inside the house, where two persons had covered their face and all of them carrying Aruval and threatened them and snatched jewels and cash from their house. P.W.4 is the neighbour of P.W.1. He is the witness to the observation mahazar. P.W.5 is the Secretary of Agricultural Cooperative Bank at Velliankadu. According to him, on 14.08.2001, one Mariammal had pledged the jewels in his Bank and thereafter, the respondent police recovered the said jewels and produced before the Court. P.W.6 is the witness to the arrest of the appellant and other accused. According to him, on 06.02.2002, the police intercepted the appellant, and another accused and they voluntarily gave a confession and based on the disclosure, the police also recovered a ring owned by P.W.1. P.W.7 is also a witness to the arrest of the appellant and other accused and also spoke about the voluntarily confession given by the accused. But, in his cross examination, he stated that the ring was recovered only from A-1 in this case and nothing was recovered from the appellant and only the statements were obtained by the respondent police from the appellant. P.W.8 is the Sub Inspector of Police, working in the respondent police station. On receipt of the complaint, he registered the case and prepared the first information report and sent the same to the higher officials. P.W.9 is the Inspector of Police working in the respondent police station. According to him, on receipt of the first information, he continued the investigation, proceeded to the scene of occurrence, examined the witnesses and recorded their statements, arrested some of the accused and thereafter handed over the investigation to P.W.10. P.W.10, the Inspector of Police, working in the respondent police station, continued the investigation, after completion of investigation, he laid charge sheet.
5. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., they denied the same as false. Their defence was a total denial. The accused did not examine any witnesses nor marked any documents.
6. Having considered all the above, the Trial Court convicted the accused for the offences as stated in the first paragraph of this judgment. Challenging the above conviction and sentence, the second accused is before this Court with this appeal.
7. The learned counsel appearing for the appellant would submit that the appellant is originally arrayed as A-6 in this case and since A-1 to A-4 are absconding, the case was split up and A-5 and A-6 alone face the trial. Even as per the evidence of P.Ws.1 to 3, the identity of the accused has not been established, apart from that there is no recovery from this appellant. Even as per the evidence of P.W.7, a ring was recovered only from A-1 in this case. He has categorically stated that nothing was recovered from this appellant. In the absence of any recovery, the appellant cannot be found guilty and convicted. Hence, he sought for allowing this appeal.
8. Per contra, the learned Government Advocate(Crl.
Side) appearing for the respondent would contend that the stolen jewels were recovered based on the confession of the accused and the property was properly identified by P.Ws.1 and 2. The trial Court, considered the evidence properly and convicted the accused and there is no reason to disbelieve the evidence of witnesses. Hence, she sought for dismissing the appeal.
9. I have heard the rival submissions and perused the materials available on record.
10. P.W.1 is the victim in this case. In his evidence, he stated that four persons broke open the door and went inside the house and they were wearing masks and had stolen 48 sovereigns of gold jewels and all the accused were carrying Aruval and they had threatened them and stolen Rs.7,500/- from bureau. Subsequently, he identified the same in the Court. P.W.2 is the wife of P.W.1. She also stated that four persons went inside the house with Aruval and threatened them and stolen the cash and jewels. P.W.3 is the son in law of P.W.1. According to him, on the date of occurrence at about 2.00 a.m., six persons went inside the house and two persons covered their face and they have stolen the jewels and cash. But, none of the witnesses identified the appellant and no test identification parade was conducted. So far as the recovery is concerned, P.Ws.6 and 7 spoke about the arrest and voluntary confession given by the appellant and other accused. Even though, P.W.6 says that both appellants and another accused had given confession statement and the ring was recovered from this appellant. But, P.W.7, the another witness to the arrest and confession of the accused categorically stated in his cross examination, that only the ring was recovered from A-1 in this case and nothing was recovered from the appellant. The appellant was not identified by the witnesses and nothing was recovered from the appellant and there is no evidence available to prove the guilt of the appellant. Hence, I am of the considered view that the prosecution has failed to prove the case against the appellant beyond any reasonable doubt. Hence, the appellant is entitled for acquittal.
11. In the result, the Criminal Appeal is allowed. The conviction and sentence imposed on the appellant in S.C.No.3 of 2005 dated 22.07.2005 on the file of the learned Principal Assistant Sessions Judge, Erode is set aside and the appellant/accused is acquitted of all the charges levelled against him and bail bond, if any, executed by him shall stand cancelled and the fine amounts paid by him is ordered to be refunded forthwith.
18.01.2017 rrg To
1. The Principal Assistant Sessions Judge, Erode.
2. The Inspector of Police, Erode Taluk Police Station, Erode.
3. The Public Prosecutor, High Court, Madras.
V.BHARATHIDASAN.J., rrg Crl.A.No.238 of 2006 18.01.2017 http://www.judis.nic.in