THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN Crl.A.Nos.1107 and 1150 of 2007
1. Muthukumar 2.S.Gajendran 3.Panneerselvam ... Appellants/A2 to A4 (in Crl.A.No.1107 of 2007) Viji @ Vijayan ... Appellant/A5 (in Crl.A.No.1150 of 2007) vs.
State, rep. by The Inspector of Police, R-7, K.K. Nagar Police Station, Chennai.
(Crime No.57 of 2003) ... Respondent (in both appeals) Criminal appeals preferred under Section 374(2) Cr.P.C., against the judgement dated 29.11.2007 passed by the learned Additional District and Sessions Judge, (Fast Track Court No.V), Chennai, in S.C.No.191 of 2007.
For Appellants : Mr.V.N.Amudhan Legal Aid Counsel (Crl.A.No.1107 of 2007) Mr.A.D.Jagadish Chandra (Crl.A.No.1150 of 2007) For Respondent : Mrs.M.F.Shabana http://www.judis.nic.in Government Advocate(Crl. Side) COMMON JUDGMENT The accused 2 to 5, in Sessions Case No.191 of 2007, on the file of the learned Additional District and Sessions Judge, (Fast Track Court No.V), Chennai, are the appellants herein. There are six accused in this case. A1 and A6 were absconding and the case against them spilt up, and A2 to A5 were faced the trial. The accused 2 to 5 stood charged for an offence under Sections U/s.120(B), 451, 397, 395 and 394 IPC. The trial Court, after trial, by Judgment dated 29.11.2007, convicted the accused 2 and 3 for the offence under Section 451 IPC and sentenced them to undergo rigorous imprisonment for seven years and to pay a fine of Rs.500/- each in default, to undergo rigorous imprisonment for three months, convicted them for the offence under Section 397 IPC and sentenced them to undergo rigorous imprisonment for seven years and to pay a fine of Rs.500/- each in default, to undergo rigorous imprisonment for three months, and acquitted them for the offence under Section 120(B) IPC. Convicted the accused 4 and 5 for the offence under Section 451 IPC, and sentenced them to undergo rigorous imprisonment for seven years and to pay a fine of Rs.500/- each in default, to undergo rigorous imprisonment for three months and convicted them for the offence under Section 395 and 394 IPC http://www.judis.nic.inand sentenced them to undergo rigorous imprisonment for five years and to pay a fine of Rs.500/- each in default, to undergo rigorous imprisonment for three months and acquitted them for the offence under Section 120(B) and 397 IPC. The sentences are ordered to run concurrently. Challenging the above said conviction and sentence, the accused 2 to 4 filed Crl.A.No.1107 of 2007 and the 5th accused filed Crl.A.No.1150 of 2007.
2. Earlier, when the matter was came up for hearing on 03.01.2017, there was no representation for the appellants in Crl.A.No.1107 of 2007. Hence, the matter was posted on 05.01.2007, under the caption for dismissal. On 05.01.2007, the matter was called again, there was no representation for the appellants. Hence, Mr.V.N.Amudhan, Advocate was appointed as Legal Aid Counsel for the appellants in Crl.A.No.1107 of 2007.
3. The case of the prosecution, in brief, is as follows:
P.W.1 is a victim in this case. She along with her two children living in Door No.57, 31st Street, 6th Sector, K.K.Nagar, Chennai-78. A-6 in this case one Sivagami is known to P.W.1 and she used to stay with her and assisting her. On 09.01.2003 at about 9.45 p.m., five persons along with A-6, came inside the house of P.W.1 and they have caught hold her children and closed their http://www.judis.nic.inmouth with their hands and pushed P.W.1 inside the bedroom and three persons went inside the bedroom and they have attacked her with knife and stolen the jewels kept in the shelf, they have also removed a ring, mangalsutra, two anklets and other jewels and they have also stolen Rs.50000/- cash from the shelf, thereafter they ran away in an auto. Immediately, P.W.1 raised alarm, the police came to her house, and they took her to the hospital, where she was given treatment, thereafter she went to the police station and filed a complaint.
(ii) P.W.9, the Sub Inspector of Police, attached to the respondent police station, on receipt of the complaint, registered a case in Crime No.57 of 2003 for the offence under Section 397 IPC and prepared a first information report[Ex.P6], sent P.W.1 to the Hospital for taking further treatment. Then, he proceeded to the scene of occurrence, prepared observation mahazar[Ex.P7], a rough sketch[Ex.P8] in the presence of witnesses and sent the first information report to the higher officials.
(iii) P.W.7, the Doctor working in the Government Hospital, K.K.Nagar, given a treatment to P.W.1 and issued Accident Register[Ex.P4].
(iv) P.W.9, the Inspector of Police, Crime Branch, attached to the respondent police station, on receipt of the first information report, continued the investigation, on 18.01.2003 at about 6.15 http://www.judis.nic.inp.m., arrested the accused 3 and 4 and on such arrest they voluntarily given confession and based on the disclosure statement of A-3 [Ex.P9], P.W.10 seized the Auto and two gold jewels from his house and based on the disclosure statement of A-4, he recovered two gold jewels from his house under seizure mahazar, and based on their disclosure statements, he recovered two more gold jewels and gold bangles from the house of one Gajendran and also recovered two gold bangles from the house of A-5. Subsequently, he recovered two ear ring, which was pledged in the pawn broker shop by A-3. Then, on 19.01.2003, he arrested A-6 and on such arrest she voluntarily given confession and based on the disclosure statement P.W.10 recovered two gold rings from her house. On 23.01.2003, he arrested A-5, and on such arrest he voluntarily given confession and based on the disclosure statement he recovered one gold chain. Then, he arrested the first accused and on such arrest he has voluntarily given confession and based on the disclosure statement he recovered one ear stud and anklets and also knife and one TVS Moped. Further, P.W.10 recovered a gold chain with dollar from a pawn broker shop where A-1 pledged the jewels. Since A-2 was already in judicial custody, in a another crime, he took police custody of A-2, in the police custody, he voluntarily given confession and based on the disclosure statement, he recovered a knife used in the crime and also a gold necklace.
http://www.judis.nic.inSince one of the attesters of the seizure mahazar was in judicial custody, he was not examined, another attester is suffering from cancer and he was not in a position to give evidence and he was also not examined. He examined the other witnesses and recorded their statements and after completion of investigation, he laid charge sheet.
4. 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 10 witnesses were examined and 22 documents were exhibited, and 12 material objects were marked.
5. Out of the said witnesses examined, P.W.1 is the victim in this case and she spoke about the theft and injuries sustained by her. P.W.2 is her neighbour. According to him, after hearing the alarm from P.W.1's house, he came there at that time four or five persons came out of her house and they ran away. P.W.3 is also a neighbour of P.W.1. According to him, he saw four or five persons running from the house of P.W.1, and he is also witness to the seizure mahazar. P.W.4 is running a pawn broker shop. He spoke about the gold jewels pledged by one Dhanasekaran, who is the friend of the accused. P.W.5 is the Doctor working in the http://www.judis.nic.inGovernment Hospital, Royapettah. He examined P.W.1 and given Accident Register [Ex.P3] and he has given opinion that the injuries are simple in nature. P.W.6 is running a pawn broker shop. From his shop, some of the jewels stolen from P.W.1's house were pledged by one Kannan who is friend of the first accused. P.W.7 is the Assistant Medical Officer, K.K.Nagar Hospital. He has given treatment to P.W.1 and has given Accident Register and he found as many as seven injuries on P.W.1. P.W.8 is the XV Metropolitan Magistrate, George Town, Chennai. He conducted test identification parade. P.W.9 is the Sub Inspector of Police attached to the respondent police station. On receipt of the complaint from P.W.1, he registered a case and prepared first information report, prepared observation mahazar, rough sketch and examined the witnesses and recorded their statements and then he handed over the investigation to P.W.10. P.W.10 is the Inspector of Police attached to the respondent police. He continued the investigation, arrested the accused, recovered the stolen articles, examined the witnesses and recorded their statements and after completion of investigation, he laid charge sheet.
6. 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 http://www.judis.nic.inwitness and no document was marked on their side.
7. 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 said conviction and sentence, the accused is before this Court with this appeal.
8. I have heard Mr.V.N.Amudhan, the learned Legal Aid Counsel appearing for the appellants in Crl.A.No.1107 of 2007 and Mr.A.D.Jagadish Chandra, the learned counsel appearing for the appellant in Crl.A.No.1150 of 2007 and Mrs.M.F.Shabana, learned Government Advocate(Crl. Side) appearing for the State and I have also perused the materials available on record.
9. P.W.1 is the victim in this case. It is her evidence that on the date of occurrence at about 9.45 p.m., when she along with her children were in the house, five persons along with A6, entered into her house and they attacked P.W.1 with knife and stolen the gold jewels and cash of Rs.50,000/- and ran away, when she raised alarm, P.Ws.2 and 3 came there and she was taken to the Hospital and given first aid, then she went to the police station and lodged a complaint. Subsequently, P.W.10, the Investigation Officer arrested the accused and based on the confession statement of the accused, http://www.judis.nic.inhe recovered the stolen articles from various places. Then, the test identification parade was conducted by the XV Metropolitan Magistrate, Chennai, where, P.W.1 identified all the accused. P.W.4 is running a pawn broker shop, where A-3 pledged some stolen jewels and from his shop some of the stolen articles were recovered. P.W.4 also spoke about the recovery of pledged jewels in his shop. P.W.6 is another pawn broker, where, some of the gold jewels were pledged by A-1 through his wife was recovered. Subsequently, all the jewels were identified by P.W.1.
10. The learned counsel appearing for the appellant/5th accused in Crl.A.No.1170 of 2007 would submit that in the complaint filed by P.W.1, she is mentioned only three persons were came in to her house and while she was given treatment at the hospital she has also stated that only three known persons came to her house and attacked with her at about 9.45 p.m., Apart from that even though she has identified A-5 in the test identification parade, but before the Court she only identified A-2, A-3 and A-4. She has specifically stated in the cross examination that she did not identify A-5. In the above circumstances, the prosecution did not prove that A-5 involved in the above said crime. I find some force in the argument of the learned counsel appearing for the appellant/5th accused. So far as A-2, A-3 and A-4 are concerned, in http://www.judis.nic.inthe test identification parade, P.W.1 clearly identify all the accused and only based on their disclosures statement, the jewels were recovered and subsequently the same was also identify by P.W.1. Before the Court also she has clearly identify all the three accused. From the above evidence, it is clear that the prosecution has clearly establish the guilt of the accused 2 to 4 beyond any reasonable doubt. In the above circumstances, I am of the considered view that the prosecution has establish that only these accused, namely, A2, A3 and A4 committed crime, and I find no illegality or irregularity in the Judgment of the trial Court. So far as A-5 is concerned, as rightly contended by the learned counsel appearing for the 5th appellant, that in her complaint P.W.1 stated that three persons were came in her house and P.W.1 also stated that she did not identify A-5. In that circumstances, the prosecution did not prove the guilt of A-5. Hence, he entitled for acquittal.
11. In the result, the Criminal Appeal No.1107 of 2007 is dismissed. The conviction and sentence imposed on the appellants/accused 2 to 4 in S.C.No.191 of 2007 dated 29.11.2007 on the file of the learned Additional District and Sessions Judge, (Fast Track Court No.V) is confirmed. If the appellants/accused 2 to 4 are on bail, the bail bonds executed by them shall stand cancelled and the trial Court is directed to take appropriate steps to secure http://www.judis.nic.inthem and commit them to prison so as to serve the sentence imposed on them. The Criminal Appeal No.1150 of 2007 is allowed and the appellant/5th 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 them are ordered to be refunded forthwith. The Chairman, Legal Aid Authority is directed to pay fee to the learned counsel appearing for the appellants in Crl.A.No.1107 of 2007 as per rule.
10.02.2017 rrg To
1. The Additional District and Sessions Judge, (Fast Track Court No.V), Chennai,
2. The Inspector of Police, R-7, K.K.Nagar Police Station, Chennai.
3. The Public Prosecutor, High Court, Madras.
http://www.judis.nic.in V.BHARATHIDASAN.J., rrg Crl.A.Nos.1107 & 1150 of 2007 10.02.2017 http://www.judis.nic.in