Judgment : ARUNACHALAM, J. ( 1 ) THE appellant in Criminal Appeal 569/85 was A. 1 in Sessions Case No. 112/ 84 on the file of the II Additional Sessions Judge, Salem. The appellant in Criminal Appeal No. 776 of 1985 was A. 2 in the same Sessions Case. Both the appellants were tried under four heads of charges. The first charge against both of them was under Section 302 read with Section 34 Indian Penal Code on the allegation that at or about 10. 30 p. m. on 1/1/1983 at Thathampatti village, they along with the juvenile accused Loganathan, caused the death of Mottai ammal by beating her with cart pegs. (Her death was at the hospital on the next day at 11. 30 a. m.) This charge also reads that the death of the deceased was caused by the appellants in pursuance of their common intention to rob the jewellery and cash in the possession of the deceased, P. W. 1 and P. W. 2. The second charge was framed against the appellants under Section 394 read with Section 397 Indian Penal Code for having committed robbery of the cash in the possession of the deceased, when she was attacked with lethal weapon mentioned in charge 1. The 3rd and 4th charges were framed against both the appellants under Section 394 read with Section 397 Indian Penal Code for having committed robbery of jewellery and cash from the possession of P. Ws. 1 and 2, while attacking them with cart pegs. ( 2 ) THE learned trial Judge found the appellants guilty of all the charges. Under the first charge, they were sentenced to undergo imprisonment for life. In respect of charges 2, 3 and 4, each one of these appellants were sentenced to undergo rigorous imprisonment for 10 years. All the sentences were directed to run concurrently. ( 3 ) THE prosecution case in brief is as follows:-P. W. 12 Nehru has a brick kiln at Dasinayakanpatti. He knew the appellants and the juvenile accused. He had seen them moving together. At or about 5 p. m. on 1. 1. 1983 when he was buying cigarettes from a petty shop situated near Jayalakshmi theatre at Seelanayyakkanpatti, he noticed the appellants and juvenile accused coming towards the shop. The first appellant asked for Rs. 5/- from him, but he parted with Rs. He had seen them moving together. At or about 5 p. m. on 1. 1. 1983 when he was buying cigarettes from a petty shop situated near Jayalakshmi theatre at Seelanayyakkanpatti, he noticed the appellants and juvenile accused coming towards the shop. The first appellant asked for Rs. 5/- from him, but he parted with Rs. 3/-stating that was all the money he possessed. ( 4 ) P. W. 13 Subramaniam has a hire-cycle shop at Seelanayyakkanpatti. On the evening of 1/1/1983, the appellants and juvenile Logan than came to his shop. Each one of them took a cycle on hire. P. W. 13 had entered hiring of cycles by the appellants and the juvenile in Ex. P. 14, the record maintained for that purpose. ( 5 ) P. W. 14 Manickam is the owner of a Beeda stall, where eatables were also sold, situated on the main road at the junction of the bye pass road, leading to Thathampatti. At or about 10 p. m. on 1/1/1983 the appellants and the juvenile, demanded bee-dies from his shop and created a scene. ( 6 ) P. W. 4, Mariappan, had left his cart as usual on the Thathampatti Road at or about 8. 30 p. m. on the occurrence night. On the next morning he found that Cart pegs (M. Os. 1 and 2) were missing from his cart. ( 7 ) DECEASED Mottai ammal was the mother of P. W. 1 Chellam and P. W. 2 Pappal. All the three of them were fruit sellers. P. W. 1 used to sell fruits in front of Sengundar Marriage hall, Ammapet. P. W. 2 and the deceased were engaged in the trade of selling fruits at Gandhi Maidan. Every night, after selling fruits, they used to return home together, by bus. ( 8 ) ON 1/1/1983 as usual the deceased in the company of P. Ws. 1 and 2 boarded a bus and alighted at Kamarajar Colony bus stop. From the bus stop all the three of them were proceeding towards Thathampatti. The time would be about 10 or 10. 30 p. m. P. W. 1 was then wearing M. O. 3 a gold chain, manufactured by P. W. 15 Duraisami, seven years prior to occurrence. P. W. 1 also possessed Rs. 1,000. 00 in cash, in a small bag M. O. 4 safely tucked to her waist. The time would be about 10 or 10. 30 p. m. P. W. 1 was then wearing M. O. 3 a gold chain, manufactured by P. W. 15 Duraisami, seven years prior to occurrence. P. W. 1 also possessed Rs. 1,000. 00 in cash, in a small bag M. O. 4 safely tucked to her waist. P. W. 2 had handed over Rs. 400. 00 to the deceased for safe custody. P. W. 2 was carrying on her head M. O. 10 series. At or about that time, the appellants who were riding on their cycles crossed them and stood underneath a tamarind tree adjacent to a Church. The juvenile accused followed them by pushing another cycle. Suddenly the street lights went off. The appellants way laid the deceased, P. W. 1 and P. W. 2 When they shouted the appellants with. Cart pegs M. Os. 1 and 2 beat forcibly on the head of the deceased Mottai ammal. Mottai ammal fell down. When P. W. 1 attempted to escape, the appellants dragged her and beat her on her back and head with cart Pegs. The second accused with the pen knife M. O. 5 caused an injury underneath the left eye of P. W. 1. Both the appellants snatched M. O. 3 gold chain worn by P. W. 1 as well as M. O. 4 the small bag which contained Rs. 1,000. 00 in cash. On seeing this, P. W. 2 shouted, The appellants threatened P. W. 2 that she would also be stabbed. So saying, they beat on the back portion of the head of P. W. 2. When P. W. 2 attempted to ward-off the blows, the appellants stabbed her with a knife which caused an injury on the right middle finger of P. W. 2. Soon thereafter the appellants left the scene on their cycles after throwing away the cart pegs at the spot. P. W. 7 Karunpillai, who was resting in his house, on hearing some noise, went towards the Church and learnt that fruit selling ladies had been attacked. On hearing about this incident, Gajendran (P. W. 3), grandson of Mottai ammal, took the three injured persons in an auto-rickshaw to Government Hospital, Salem. P. W. 7 Karunpillai, who was resting in his house, on hearing some noise, went towards the Church and learnt that fruit selling ladies had been attacked. On hearing about this incident, Gajendran (P. W. 3), grandson of Mottai ammal, took the three injured persons in an auto-rickshaw to Government Hospital, Salem. ( 9 ) P. W. 6, Devarajan, wire-man, who had switched on as usual the street lights at 6 p. m. on 1/1/1983, found on the next morning, the switch box attached to the Transformer open, and the switch itself had been put off. ( 10 ) P. W. 10 Doctor Arunachalam examined P. W. 1 Chellammal at 12. 15 mid night on 2/1/1983 and found on her a cut injury x "1/2" x "1/2" over the left face below the eye. He also noticed a near abrasion "1/2" x "1/2" over both sides of the neck. P. W. 10 was informed that P. W. 1 had sustained injuries at 10. 30 p. m. on 1/1/1983 due to assault with sticks by unknown individuals. Ex. P. 7 is the wound certificate. In the opinion of the Doctor, both the injuries were simple in nature. At 12. 10 a. m. on the same night P. W. 10 examined Mottai ammal (the deceased) for certain injuries said to have been caused at 10. 30 p. m. on 1/1/1983 near Thathampaui due to assault. She was accompanied by her grand-son. The following injuries were found on her. 1) 1 x 1/2 x 1/2 punctured wound with laceration Over the back of the scalp. 2) 2 x 2 x 2 supporting area of right temporal scalp with the punctured wound. Ex. P. 8 is the wound certificate. In the opinion of the Doctor, both the injuries were grievous in nature. ( 11 ) THE same Doctor examined P. W. 2 at 12. 45 midnight on 2. 1. 1983 and found on her the following injuries. 3x 1 x1 cut injury dorsum right hand extending; 2) 1 x1 x1 cut injury over the back of the scalp. 3) Fracture proximal phalanx right middle finger X-ray indicated fracture of Proximal Phalanx right middle finger. Ex. P. 10 is the wound certificate. In the opinion of the doctor, injury Nos. 1 and 3 were grievous, while injury No. 2 was simple. 3) Fracture proximal phalanx right middle finger X-ray indicated fracture of Proximal Phalanx right middle finger. Ex. P. 10 is the wound certificate. In the opinion of the doctor, injury Nos. 1 and 3 were grievous, while injury No. 2 was simple. The doctor was told that P. W. 2 had sustained injuries due to assault with sticks by unknown individuals near Thathampani at 10 p. m. on 1/1/1983. ( 12 ) P. W. 10 forwarded Ex. P. 9 intimation regarding accident and injuries with reference to Mottai ammal and P. W. 1, to the on post police station. Ex. P. 11, a similar intimation, in relation to P. W. 2, was also forwarded to the out post police station. ( 13 ) P. W. 23, Kandaswamy, the then head constable at the out-post police station, on receipt of Ex. P. 9 and P. 11, on the early morning of 2. 1. 1983, proceeded to the hospital. He found injured Mottai ammal unconscious. Therefore, he inquired P. W. 1 and recorded her narration and obtained her thumb impression in Ex. P. 1 so recorded. P. W. 24, Narayanaswami, Sub Inspector of Police Ammapettai, on receipt of Ex. P. 1 forwarded by P. W. 23, along with Ex. P. 9 and P. 11, registered on Ex. P. 1, Crime Nos. 4 x 1/83 under Section 392 Indian Penal Code. Ex. P. 31 is the printed copy of the first information report. P. W. 24 forwarded Ex. P. 1 and P. 31 to the Magistrate while forwarding copies of Ex. P. 31 to his superior officers. He also informed Inspector of Police, of the registration of this Crime, over telephone. P. W. 25 Kuppuswami, Inspector of Ammapettai, on receipt of information of the registration of this crime, obtained a copy of the first information report and proceeded to the scene after making arrangements, to have the dog squad and the photographer being made available, for investigation at the scene. P. W. 8 Balaji, a photographer clicked some pictures at the scene as directed by the investigating officer. M. O. 12 series are the photographs while M. O. 11 series are the corresponding negatives. At the scene P. W. 25, prepared Ex. P. 2 observation mahazar and Ex. P. 32 the scene sketch in the presence of P. W. 5. P. W. 8 Balaji, a photographer clicked some pictures at the scene as directed by the investigating officer. M. O. 12 series are the photographs while M. O. 11 series are the corresponding negatives. At the scene P. W. 25, prepared Ex. P. 2 observation mahazar and Ex. P. 32 the scene sketch in the presence of P. W. 5. He recovered from the scene M. O. 1 and M. O. 2 cart pegs; M. O. 4 blue coloured small hand bag with yellow border and M. O. 10 series under a mahazar Ex. P. S attested by P. W. 5. Meanwhile the injured Mottai ammal died at 11 a. m. on 2/1/1983. P. W. 10 forwarded Ex. P. 12 the death intimation to the out post police station. P. W. 25 obtained death intimation at or about 1 p. m. on 2/1/1983 and soon thereafter altered the crime into one under Section 302 Indian Penal Code. The altered express first information report is Ex. P. 33. As usual the altered express first information report was forwarded to Court and to his superior officers. ( 14 ) P. W. 25 conducted inquest over the corpse of Mottai ammal between 1 and 3 p. m. on 2. 1: 1983 during the course of which he examined P. Ws. Ito 3 and others. Ex. P. 34 is the inquest report. P. W. 25 seized M. Os. 6 to 9 the clothings of P. Ws. 1 and 2 under Ex. PA attested by P. W. 5. On 4/1/1983 he forwarded the material objects seized during investigation to Court, and Ton 10/1/1983 he sent a requisition Ex. P. 15 for forwarding those articles to the Laboratory for chemical analysis and report. Subsequent investigation was taken over by P. W. 26. P. Sundaram. ( 15 ) THE dead body of Mottai ammal, which was forwarded by P. W. 25 on 2/1/1983 after inquest, through police constable P. W. 21, accompanied by requisition Ex. P. 5 to the Government Hospital, Salem for the conduct of post mortem, was received by Doctor Susila, examined as P. W. 9. ( 16 ) P. W. 9 Doctor Susila conducted autopsy on the dead body of Mottai am mal at 4. 15 p. m on 2/1/1983. She found on the dead body the following external and internal injuries. External injuries: 1) lacerated injury about 6 cm. ( 16 ) P. W. 9 Doctor Susila conducted autopsy on the dead body of Mottai am mal at 4. 15 p. m on 2/1/1983. She found on the dead body the following external and internal injuries. External injuries: 1) lacerated injury about 6 cm. x 4 cm x 5 cm on the scalp on the right parietal region; 2) Lacerated injury about 5 cm. x 3 cm. x 5 cm. on the scalp over the coronal suture in the centre. 3) Contusion of the right eye. Internal injuries: Heart 150 grams. lungs Right 400, left 450 congested. Skull-Extravasation of blood underneath from scalp just behind the injury. Fracture of parietal bone right side from the coronal suture up to the temporal bone right side. Fracture of skull (Anterior fossa) right side 5 cm. x 2 cm Brian contusion Brain on the right side (Hemisphere) Ex. P. 6 is the postmortem certificate. In the opinion of the doctor, the deceased had died of haemorrhage and shock due to head injury (Fracture of parietal bone under the base of the skull right side) Death would have occurred 5 to 6 hours prior to postmortem. The injuries found on the deceased would have been caused by beating with M. Os. 1 and 2. The injuries noticed by her on the deceased were sufficient in the ordinary course of nature to cause death. ( 17 ) P. W. 26 arrested juvenile Logana than on 15. 2. 1984 near the bus stop at Thathampatti tole gate in the presence of P. Ws. 17 and 18. The Juvenile accused volunteered a confession, the admissible portion of which is Ex. P. 35. The Juvenile accused took P. W. 26 and his party to Salem Victoria Theatre and pointed out A. 1 and A. 2 who were gazing at the posters fixed in front of the cinema theatre. The appellants were arrested in the presence of P. Ws. 19 and 20. Both the appellants volunteered statements, the admissible portions of which are Ex. P. 21,and P. 23. P. W. 26 seized from the possession of A. 2, the pen knife M. O. 5, under Mahazar Ex. P. 22. Both the appellants along with Logan than took P. W. 26 and his party to Shevapet and pointed out the shop of P. W. 20paramasivam. P. 21,and P. 23. P. W. 26 seized from the possession of A. 2, the pen knife M. O. 5, under Mahazar Ex. P. 22. Both the appellants along with Logan than took P. W. 26 and his party to Shevapet and pointed out the shop of P. W. 20paramasivam. P. W. 20 a Jeweller produced M. O. 3 the gold chain, stating that the same had been sold to him by A. 2, for Rs. 4,075. 00 two years prior to his deposing before Court. M. O. 3 was seized under a mahazar Ex. P. 24 attested by P. W. 19 and another. On 21/2/1984, P. W. 26 sent a requisition to the Chief Judicial Magistrate, Salem to arrange for the conduct of an identification parade. P. W. 22 Judicial II Class Magistrate No. 4, Salem, on receipt of directions from the Chief Judicial Magistrate, Salem conducted an identification parade between 2. 30 p. m. and 3. 45 p. m. on 28/2/1984. P. W. 1 identified both A. 1 and A. 2 and the juvenile on all the three occasions, she was asked to point out the offenders. Ex. P. 30 is the record relating to identification proceedings. After completion of investigation, P. W. 26 filed the final report against A. 1 and A. 2 and the Juvenile accused before the committal Court on 10/5/1984. ( 18 ) WHEN the appellants were questioned under Section 313 Criminal Procedure Code by the learned trial Judge to explain the incriminating circumstances appearing against them in evidence, they chose to deny their complicity in the crime. They did not choose to adduce any defence evidence. ( 19 ) THE learned trial Judge on the basis on he evidence placed before him, held that the prosecution had established the guilt of both the accused, beyond reasonable doubt and hence dealt with them in the manner stated earlier. ( 20 ) WE have to now determine whether the evidence on record is sufficient and clinching to find A. 1 and A. 2 guilty of the grave charges of murder and robbery. The direct evidence is sought to be furnished, through P. Ws. 1 and 2, who had sustained injuries in this occurrence, and had also lost cash and jewellery. Both of them are sisters and they were accompanied by their mother deceased Mottai ammal, when this unfortunate occurrence had taken place. Admittedly P. Ws. The direct evidence is sought to be furnished, through P. Ws. 1 and 2, who had sustained injuries in this occurrence, and had also lost cash and jewellery. Both of them are sisters and they were accompanied by their mother deceased Mottai ammal, when this unfortunate occurrence had taken place. Admittedly P. Ws. 1 and 2 did not know the accused (A. 1 and A. 2) earlier. As soon as they got down from the bus at Kamarajar Colony and were attempting to proceed towards Thathampaui, the street lights suddenly went off plunging the scene in darkness. P. Ws. 1 and 2 would claim, that both the accused and the juvenile were coming behind them on there respective cycles, separated by a distance of 100 feel. Naturally both these witnesses could not have identified them at that point of time, for both the accused and the juvenile were far behind them on their cycles. It is their further case that both the appellants and the juvenile crossed them and stood near a. Church underneath a tamarind tree. The evidence of P. W. 1 makes it clear, that the lights went off soon after they alighted from the bus: If that be so, both P. W. 1 and 2 would not have been in position to identify the appellants and another who are slated to have crossed them and subsequently indulged in attacking them and relieving them of their valuable possessions. Even if they had an opportunity before the crime was committed, to see those persons, who had arrived on their cycles, it must have been a fleeting glance. In darkness it would not have been possible for them to specifically note and allege individual oven acts to each one of the accused, though they have coo son to do so. The appellants (A. 1 and A. 2) were arrested only on 15. 2. 1984, 13 months after the alleged occurrence. It would be practically impossible for these two witnesses to identify their assailants, when they had not known earlier, 13 months after the incident, especially when they had not noticed any special identifying features which can connect both the appellants (A. 1 and A. 2) with the crime. 2. 1984, 13 months after the alleged occurrence. It would be practically impossible for these two witnesses to identify their assailants, when they had not known earlier, 13 months after the incident, especially when they had not noticed any special identifying features which can connect both the appellants (A. 1 and A. 2) with the crime. In the first information report preferred by P. W. 1 she has stated, that two persons who came behind her, tall, and dark in complextion P. W. 19 who was present when the appellants were arrested near a cinema theatre, has stated when cross-examined, that A. 1 was not dark in his complextion. A. 2 was not a short man. He was also not tall, but of medium height. The description of the offenders given by P. W. 1 in Ex. P. 1, is totally contradicted by the evidence of P. W. 19. Though P. W. 1 had identified both the appellants, in the identification parade held by P. W. 22 on 28/2/1984, it will be difficult to attach any special significance to such identification, if one keeps in mind the long time gap. Both the appellants have also told the Magistrate that their photographs had been taken at Thathampatti police station. We are unable to attach any special importance to the belated identification of the appellants by P. W. 1. It is amazing why P. W. 2 was not asked to identify the appellants in the parade. This is yet another lacuna in the prosecution case. Merely because the appellants had hired cycles or had created a scene before a beedi shop, they cannot be connected with this grave crime unless clinching evidence is placed before Court. We cannot also overlook that both P. Ws. 1 and 2 had told the doctor that they were attacked, by unknown individuals. If we are not satisfied with the identification of the assailants of the deceased, P. W. 1 and P. W. 2 for the reasons a for estate, it would not be possible to find the appellants guilty of murder or even robbery. Unfortunately these salient features have not been considered in the right perspective by the learned trial Judge, We are unable to agree with the line of reasoning adopted by the learned trial Judge in finding the appellants guilty of both the grave offences. Unfortunately these salient features have not been considered in the right perspective by the learned trial Judge, We are unable to agree with the line of reasoning adopted by the learned trial Judge in finding the appellants guilty of both the grave offences. Necessarily the appellants in both the appeals would be entitled to the benefit of doubt as far as the charges framed against them are concerned. However the case of the appellant in criminal Appeal No. 776 of 1985 (A. 2) stands on a slightly different footing, Though as stated earlier he cannot be found guilty of murder or robbery, he will still be liable for an offence under Section 411 Indian Penal Code. A. 2 had not claimed M. O. 3 as his own. M. O. 3 has been identified by P. W. 1 as her jewellery. The evidence of P. W. 1 is supported by P. W. 15 the maker of the jewellery. It is well settled that a person who is in the habit of normally wearing jewels for quite length of time, would be in a position to identify the said jewel, by long user, though specific identifying features may not be apparently evident. We have no reason to distrust the evidence of P. W. 1 and P. W. 15, when they had identified, that M. O. 3 belonged to P. W. 1. We convict A. 2, the appellant in C. A. No. 776 of 1985 under Section 411 Indian Penal Code. ( 21 ) IT is represented by the learned Counsel for the appellants, that A. 2 is still in prison since he did not choose to come out on bail. The maximum sentence prescribed under Section 411 Indian Penal Code is only three years. The appellant A. 2 had spent nearly six years in jail. Since he has spent more time in prison than the maximum period of sentence that could be imposed on him, he is directed to be set at liberty forthwith, unless he is required in any other case. ( 22 ) IN the result, both the appellants are acquitted of the charges under section 302 Indian Penal Code and Section 394 read with Section 397 Indian Penal Code. ( 22 ) IN the result, both the appellants are acquitted of the charges under section 302 Indian Penal Code and Section 394 read with Section 397 Indian Penal Code. A. 2, the appellant in Criminal Appeal No. 776 of 1985 alone is convicted under Section 411 Indian Penal Code and dealt with as stated earlier, on the aspect of sentence. C. A. No. 569 of 1985 is fully allowed and Criminal Appeal No. 376 of 1985 is dismissed subject to the alteration in the nature of offence and the sentence as indicated above. Appeal allowed.