THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN Crl.A.No.907 of 2007
1. Naveen @ Naveen Kumar
2. Ramu ... Appellants vs.
State rep. By The Inspector of Police,
V- 5,Thirumangalam Police Station, Chennai.
(Crime No.890 of 2005) ...
Respondent Criminal appeal preferred under Section 374(2) Cr.P.C., against the judgement dated 19.10.2006 passed by the learned Additional District and Sessions Judge,(Fast Track Court No.III), Chennai, in S.C.No.272 of 2006.
For Appellants : Mr.V.Parthiban For Respondent : Mr.A.Saravanan Government Advocate(Crl. Side) JUDGMENT The Accused 1 and 2 in Sessions Case No.272 of 2006 on the file of the learned Additional District and Sessions Judge,(Fast Track Court No.III), Chennai, are appellants herein. They stood charged for the offence under Sections 392 r/w 397 r/w 34 IPC.
http://www.judis.nic.in The Trial Court, after trial, by Judgment dated 19.10.2006, convicted the accused under Sections 392 r/w 397 r/w 34 IPC and sentenced them to undergo seven years rigorous imprisonment and imposed a fine of Rs.1000/- each, in default to undergo simple imprisonment for three months. Challenging the above said conviction and sentence, the appellants/accused 1 and 2 are before this Court with this Criminal Appeal.
2. Pending appeal, the first appellant, namely, Naveen @ Naveen Kumar died on 08.01.2014. The learned Government Advocate(Crl. Side) appearing for the respondent filed a memo along with death certificate to that effect. In the above circumstances, the appeal is dismissed against the first appellant as abated.
3. The case of the prosecution, in brief, is as follows:
(i) P.W.1 is a victim in this case. He was residing in No.43/11, Shanthinihethan Colony, Anna Nagar West, Chennai. On 07.03.2005 at about 11.00 am., both the accused came to the house of P.W.1, under the guise of exchanging the old mixie with a offer. After seeing the old mixie, the accused offered Rs.1,500/-, but P.W.1 demanded Rs.2000/-. Then both the accused told her http://www.judis.nic.inthat they will consult their superior and return back. At the time
P.W. 2, the servant maid was also present in the house of P.W.1. Thereafter, at about 2.00 p.m., again both the accused came with a new mixie and the accused asked her to fill up her name and address in the bill book. While she was doing so, the first accused caught hold of P.W.1 and threatened her to remove the jewels worn by her. Immediately, she removed the chain with mangalsutra and gold bangles and handed it over to him. Then both the accused took her to the bed room and threatened her to open the almirah and taken Rs.4,000/- cash. Thereafter, both the accused took her to the bathroom and tied her in a chair, and went away. P.W.1 managed to untied her hands and came out the bathroom, and informed the same to her daughter, and her daughter came to the house at about 7.00 p.m., and they went to the police station, where P.W.1, gave a complaint before the respondent police.
(ii) P.W.5, 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.890 of 2005, for the offence under Sections 384 and 506(ii) IPC, and prepared first information report[Ex.P1], and sent the same to the judicial Magistrate Court and copies of the same to the higher officials. Then, he proceeded to the scene of occurrence, prepared observation mahazar [Ex.P2], rough sketch [Ex.P4] and called the finger print experts, he http://www.judis.nic.inexamined the witnesses and recorded their statements. Based on the investigation, he altered the case into Section 397 IPC, alteration report [Ex.P5] and sent the same to the Judicial Magistrate Court and copies of the same to the higher officials.
(iii) P.W.7, the Inspector of Police, working in the respondent police station, on receipt of the first information report, continued the investigation. On 09.03.2005, he arrested the accused and on such arrest both the accused voluntarily given confession statement and based on their disclosure statement [Exs.P6 and P7], he recovered two gold bangles, one gold chain with mangalsutra, a Cell Phone, and Rs.4,000/- cash in the presence of witnesses under the cover of a seizure mahazar. Thereafter, P.W.1 identified the accused as well as the stolen articles in the police station. Then, P.W.6 sent the stolen properties to the Judicial Magistrate Court and he examined other witnesses and recorded their statement, 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 its case, the prosecution examined as many as 6 witnesses, exhibited 9 documents and 4 material objects were marked.
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5. Out of the said witnesses examined, P.W.1 is the victim in this case. According to her, on 07.03.2005 at about 11.00 am., when she was alone in her house, both the accused came to her house under the guise of exchanging an old mixie for a new one. After seeing the old mixie, the accused offered Rs.1,500/-, but she demanded Rs.2000/-. The accused told her they will come back after consulting their higher ups. Thereafter, at about 2.00 p.m., both the accused came with new mixie, while she operating the new mixie, the first accused caught hold of her, and threatened her to remove the jewels worn by her. Immediately, she handed over the chain with mangalsutra and gold bangles. Then the accused took her to the bed room and threatened her to open the almirah and taken Rs.4,000/- cash, then both the accused tied her in a chair in the bath room and she managed to untie her hands and informed the same to her daughter, both of them went to the police station and gave a complaint. P.W.2 is the servant maid of P.W.1. According to her, when she was present in the house of P.W.1, when the accused came to the house of P.W.1 at the first instant. She also identified the accused in the police station. P.W.3 is the daughter of P.W.1. According to her, on the date of occurrence at about 3.00 p.m., she received a phone call from her mother http://www.judis.nic.inregarding robbery, immediately she came to her house and took
P.W.1 to the police station, where P.W.1 gave a complaint. P.W.4 is the witness to the observation mahazar. P.W.5 is the Sub Inspector of Police working in the respondent police station, on receipt of the complaint from P.W.1, registered a case, prepared first information report, observation mahazar, rough sketch and altered the case and sent the alteration report to the Judicial Magistrate Court and copies of the same to the higher officials. P.W.6, the Inspector of Police, working in the respondent police station. According to him, on receipt of the first information report, he continued the investigation, arrested the accused, recovered the material objects, 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 witness and no document was marked on their side.
7. Having considered all the above, the Trial Court convicted and sentenced the accused as stated in the first paragraph of this judgment. Challenging the above conviction and sentence, the accused are before this Court.
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8. I have heard Mr.V.Parthiban, learned counsel appearing for the appellants and Mr.A.Saravanan, learned Government Advocate(Crl. Side) appearing for the State and I have also perused the materials available on record.
9. The learned counsel appearing for the appellants would submit that this is a case where the accused were not properly identified by the victim and recovery of stolen articles also not proved, and mahazar witness was not examined and hence the recovery of stolen article is doubtful, and no proper test identification was conducted to identify the accused. Apart from that there is a unexplained delay in filing the first information report and its create a serious doubt about the prosecution case. The learned counsel appearing for the appellants further submitted that to bring home the offence under Section 397 IPC, no weapon was recovered from the accused and there was no evidence that both the accused attacked P.W.1 and there is no injury on her. Hence, the offence under Section 397 IPC also not established.
10. The learned Government Advocate(Crl. Side) appearing for the State would submit that P.W.1 is the victim in http://www.judis.nic.inthis case and she categorically stated that both the accused came into her house and threatened her, and removed the gold jewels and take Rs.4,000/- and went away. Thereafter, the respondent police recovered the stolen articles from the accused and P.W.1 identified the accused as well as the stolen articles in the police station and also identified the accused before the Court. Hence, the prosecution has clearly established the guilt of the accused beyond any reasonable doubt.
11. I have carefully considered the rival submissions.
12. P.W.1 is the victim in this case. She has deposed that both the accused came to her house in the morning under the guise of exchanging an old mixie, at the time P.W.2, the servant maid was also present in the house of P.W.1. Thereafter, at about 2.00 p.m., both the accused came with new mixie and the accused asked her to fill up the name and address in the bill book. While she is doing so, the first accused caught hold of P.W.1 and threatened her to remove the jewels worn by her. Immediately, she giving the chain with mangalsutra and gold bangles. Then the accused took her to the bed room and threatened her to open the almirah and taken a cash of Rs.4,000/-. Thereafter, both the accused took her to the bathroom and tied her in a chair and went http://www.judis.nic.inaway. Subsequently, after the arrest of the accused and recovery of stolen articles from them. P.W.1 identified the accused and the stolen articles recovered from the accused in the police station.
P.W.2 is her servant maid, she has deposed that she was also present in the house in the morning, and she also identified both the accused in the police station and also in the Court. The occurrence took place on 07.03.2005, and immediately after two days, the accused were arrested and all the stolen articles were recovered from the accused. Thereafter, P.Ws.1 and 2 identified the accused as well as the stolen articles in the police station within a short period of time. Subsequently, both P.Ws.1 and 2 identified both the accused in the Court at the time of trial.
13. So far as the contention of the learned counsel appearing for the appellants that the mahazar witness for the recovery of stolen article was not examined is concerned, the accused were arrested within a period of two days and the stolen articles were recovered from the accused under seizure mahazar and seizure mahazar was also marked, immediately P.W.1, also identified the stolen articles in the police station. In the said circumstances, the non- examination of attestors in the recovery mahazar is not creating any doubt in the prosecution case.
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14. The next contention of the learned counsel appearing for the appellants is that the delay in filing the complaint, P.W.1 is a lady and she was alone in the house, and the occurrence took place at about 2.00 p.m., immediately P.W.1, called her daughter at about 3.00 p.m., she was employed in a far away place and after her daughter came to her house, they went to the police station, where, P.W.1 file a complaint at about 7.00 p.m., and the delay is properly explained by the prosecution. So far as the conviction and sentence imposed on the appellant under Section 397 IPC, as rightly contended by the learned counsel appearing for the appellant that there is no weapon was recovered from the accused and it is not the prosecution case that P.W.1 suffered any injuries or any attempt to cause death or grievous hurt. In the said circumstances, the prosecution did not make out a case for the offence under Section 397 IPC. But, the prosecution has clearly established that these two accused/appellants are involved in the robbery and stolen articles were recovered from them within a short time, which was also identified by P.W.1, as the stolen articles were recovered from the accused, and there is no explanation by the accused for the possession of the stolen articles, so presumption under Section 144(a) of Evidence Act come into play, that they have only stolen the articles. In the above circumstances, I am of the considered view that the appellants are http://www.judis.nic.inliable to be convicted under Section 392 IPC.
15. So far as the quantum of sentence is concerned, the Court below imposed sentence of seven years under Section 392 r/w 397 r/w 34 IPC. The accused is a poor man and had no bad antecedents and has change in reform. Taking into consideration of all the mitigating as well as the aggravating circumstances, the sentence is modified to five years of Rigorous Imprisonment.
16. In the result, the appeal is partly allowed and the conviction and sentence imposed on the 2nd appellant/2nd accused in S.C.No.272 of 2006 dated 19.10.2006 on the file of the learned Additional District and Sessions Judge, (Fast Track Court No.III), Chennai, for an offence under Section 392, 397 r/w 34 IPC., is hereby set aside and instead, the second appellant is convicted for an offence under Section 392 r/w 34 IPC., and sentenced to undergo five years rigorous imprisonment and imposed a fine of Rs.1000/- in default to undergo simple imprisonment for three months. The appeal against the first accused is dismissed as abated.
30.01.2017 rrg Index : Yes/No Internet : Yes/No http://www.judis.nic.in To
1. The Additional District and Sessions Judge, Fast Track Court No.III, Chennai.
2. The Inspector of Police, V-5, Thirumangalam Police Station, Chennai.
3. The Public Prosecutor, High Court, Madras.
http://www.judis.nic.in V.BHARATHIDASAN.J., rrg Crl.A.No.907 of 2007 http://www.judis.nic.in 30.01.2017 http://www.judis.nic.in