THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN Criminal Appeal Nos.559 of 2008 and 184 of 2009
1. Ponnusamy @ Siddick Kadiri
2. Jageer Hussain .. Appellants in Crl.A.559/2008 Sathasivam @ Paramasivam .. Appellant in Crl.A.184/2009 Vs State rep. By Inspector of Police, Town Police Station, Krishnagiri Krishnagiri District, (Crime Nop.1359/1992) .. Respondent Prayer:- Criminal Appeals filed under Section 374 of Cr.P.C., to set aside the judgment passed in S.C.No.50 of 2006 dated 02.07.2008 on the file of Assistant Sessions Judge (Chief Judicial Magistrate), Krishnagiri.
For Appellant in both Crl.As : Mr.K.Thiruvengadam For Respondent in both Crl.As : Mrs.M.F.Shabana, Gov. Adv. (Crl. Side)
JUDGEMENT
A1 to A3 in S.C.No.50 of 2006, on the file of the learned Assistant Sessions Judge/Chief Judicial Magistrate Court, Krishnagiri, are the appellants herein. Totally there are 4 accused. Since A4 was absconding, case has been split up as against A1 to A3. They stood charged for the offences under Sections 458 and 392 r/w. 397 IPC. By judgment dated 02.07.2008, the trial Court convicted A1 to A3 under Section 428 IPC and sentenced them to undergo Rigorous Imprisonment for 8 years and also imposed a fine of Rs.1000/- in default to undergo simple imprisonment for 6 months, and convicted them under Section 392 r/w. 397 IPC and sentenced them to undergo rigorous imprisonment for 8 years and also imposed a fine of Rs.1000/- in default to undergo simple imprisonment for 6 months. The trial Court ordered the above sentences to run concurrently. Challenging the said conviction and sentence, the appellants/A1 & A3 are before this Court with this Criminal Appeal.
2. The case of the prosecution, in brief, is as follows:-
P.W.1 and P.W.2 are husband and wife. They are residing at No.27, Lakshmanarao street, Krishnagiri. On 29.12.1992, at about 10.15 p.m., when both P.Ws.1 and 2 were in their house, all the accused have entered into their house and attacked P.W.1. When P.W.1 raised alarm, P.W.2, the wife of P.W.1, came out of the house and all the accused have threatened her with dire consequences and all of them carrying knife and other dangerous weapons. Then, they removed the lungi worn by P.W.1 and tied his hand and also tied his mouth with his shirt. They took the key from P.W.2 and opened the bureau and took Rs.85,000/- cash, gold jewels and silver vessels from the bureau, and threatened P.Ws.1 and 2 not to raise alarm and left the house, then, they went to the respondent police station and lodged a complaint, Ex.P.1. Since P.W.1 got injury he was referred to Government Hospital for treatment.
3. P.W.8, Doctor, working in the Government Hospital, Palakad, treated P.W.1 and also issued an Accident Register, Ex.P.11. P.W.14, the in-charge Inspector of the respondent police, on 25.07.1993, at 5.47 p.m., while on patrol in Pirappa street, Krishnagiri, saw both A1 and A2 wandering and arrested them, and produced them in the police station. On such arrest, A1 has voluntarily given a confession and based on the disclosure statement, P.W.14 recovered 45 grams of gold jewels from one Samraj, P.W.4, who is running a pawn broker shop. A2 has also given a confession and based his disclosure statement, he recovered silver vessels from the house of P.W.4, where A2 pledged the vessels. Based on the confession of A1, he also recovered 6 gram gold necklace at Chennai in the presence of witnesses and also recovered Rs.85,000/- cash from the house of one Selvaraj in the presence of witnesses. Then, he arrested A3 and A4 and based on the disclosure statement of A3, on 31.07.1993, he recovered stainless steel vessels and silver vessels from the house of P.W.4 and also recovered wrist watch and also recovered 16 grams of gold jewels from his pawn broker shop. All the above jewels were identified by P.Ws.1 and 2.
4. Thereafter, P.W.14 arranged for an identification parade on 03.08.1993 and the test identification parade was also conducted by P.W.12, Judicial Magistrate, Dharmapuri, where P.W.1 identified all the four accused clearly. Then P.W.14 recorded the statement of other witnesses and the Doctor, who treated P.W.1. After completion of investigation, he laid charge sheet.
5. Based on the above materials, the trial Court framed the charges as detailed in the first paragraph of this judgment against the accused. The accused denied the same. In order to prove the case of the prosecution, on the side of the prosecution, as many as 14 witnesses were examined and 24 documents were exhibited, besides 20 Material Objects.
6. Out of the witness examined, P.W.1 is the victim in this case. According to him, on 29.12.1992, at about 10.15 p.m., when he was in his house, the accused entered into the house and all of them were armed with dangerous weapon and one of the accused attacked him on his hip and they removed his lungi and tied his hand and tied his mouth using his shirt. Thereafter, they forcefully taken the key of the bureau from P.W.2 and stolen Rs.85,000/- cash and gold jewels and silver vessels and left the house. Immediately, he lodged a complaint before the respondent police and he was also referred to the hospital. Subsequently, after recovery of all the stolen articles, he identified the same. Then, he identified all the accused in the test identification parade conducted by P.W.12, the Judicial Magistrate.
7. P.W.2 is the wife of P.W.1. According to her, on 29.12.1992 at about 10.15 p.m., all the accused entered into the house of P.W.1 and they tied P.W.1 and threatened her to hand over the key and they have stolen Rs.85,000/- cash from the bureau and also stolen gold jewels and silver utensils. P.W.1 gave a complaint.
8. P.W.3 is the sister of P.W.1. She is a witness to the observation mahazar. P.W.4 is having a jewelery shop at Krishnagiri. According to him, A1 pledged silver vessels and received Rs.4500/-.
Thereafter, after lapse of 3, 4 months, he pledged one gold chain and received Rs.10,000/- and P.W.4 was treated as hostile in respect of A2. P.W.5 and P.W.6 have turned hostile. P.W.7 is a witness to the confession of A3 and A4 and also recovery of gold jewels on their confession. P.W.8 is the Doctor, who treated P.W.1 and has given an accident register, Ex.P.11.
9. P.W.9 is a witness to the recovery of gold jewels and the confession of A1. P.W.10 is the Head Clerk, working in the Chief Judicial Magistrate Court, received the material objects in the Court.
P.W.11 is running a jewelery shop at Krishnagiri. According to him, A3 sold jewels to him and received Rs.4000/- and the jewels were recovered by the police based on the confession statement of A3.
10. P.W.12, Judicial Magistrate, Krishnagiri, conducted test identification parade, where P.W.1 identified all the accused. P.W.13 is the Village Administrative Officer, who is a witness to the arrest of the accused and confession of the accused and recovery of jewels and other stolen articles. P.W.14 is the investigating officer. He arrested the accused and recovered the stolen articles and recorded the statement of witnesses. On completion of investigation, he laid charge sheet.
11. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., they denied the same as false. However, they did not chose to examine any witness or mark any documents.
12. Having considered all the above materials, the trial Court convicted the appellant/accused as stated in the first paragraph of this judgment. Challenging the same, the appellants/A1 & A3 are before this Court with this Criminal Appeal.
13. We have heard Mr.K.Thiruvengadam, learned counsel appearing for the appellant and Mrs.M.F.Shabona, learned Gov.Adv. (Crl.Side) appearing for the State and we have also perused the records carefully.
14. P.W.1 is a victim in this case. P.W.2 is the wife of P.W.1. According to them, when both of them were in their house, on the date of occurrence, at about 10.15 p.m., all the accused came there armed with deadly weapons and they attacked P.W.1 and tied his hand and mouth. Thereafter, they got the key from P.W.2 under threat and opened the bureau and had stolen Rs.85,000/- cash, gold jewels and silver vessels, and left the house.
15. P.W.14 investigating officer arrested all the accused and on such arrest, they had voluntarily given a confession and based on their confession, he recovered all the stolen articles from the shop of P.W.4 and 11 and also from their house, and P.W.1 identified all the jewels, which belongs to him. Thereafter, within a short time, test identification parade was conducted by P.W.12, Judicial Magistrate, where P.W.1 clearly identified all the accused and P.Ws.4 and 11, the persons who received the stolen jewels has also given evidence to the effect that it was the accused who came to his shop and pledged the jewels and the jewels were subsequently seized from their shop by P.W.14 in the presence of witnesses. From the above material, the prosecution has clearly established that it is the accused who have stolen the jewels from P.W.1's house and the stolen articles are found in their possession. But there is no explanation by the accused regarding the possession of the stolen articles. Hence, the presumption under Section 114(a) will arise that the accused only stolen the property. P.W.1 has also identified all the accused in the test identification parade and only on their confession all the stolen articles have been recovered, which were also later identified by P.W.1 and there is no reason to disbelieve his evidence.
16. In the above circumstances, this Court is of the considered view that it is only this accused has committed the crime and there is no ground to interfere with the finding of the Court below. Hence the appeal deserves to be dismissed.
17. In the result, both the Criminal Appeals are dismissed and judgment of the trial Court in S.C.No.50 of 2006, dated 02.07.2008, is confirmed. Since the appellants are on bail, the trial court is directed to take steps to secure the custody of the appellants/accused, to undergo the remaining period of sentence, if any.
02.01.2017 mrp Index:Yes To
1. The Assistant Sessions Judge, Chief Judicial Magistrate, Krishnagiri.
2. The Public Prosecutor, High Court, Madras.
V.BHARATHIDASAN.J., mrp Crl.A.No.559 of 2008 and Crl.A.No.184 of 2009 02.01.2017 http://www.judis.nic.in