Judgment 1. Viswanathan, the petitioner herein in Crl.R.C.No.543 of 1991, was convicted for the offence under Sec.380 read with Sec.34, I.P.C. and sentenced to undergo R.I. for 4 years and to pay a fine of Rs.2,000 in C.C.No.103 of 1988 on the file of the Chief Judicial Magistrate, Chengalpattu, In the appeal in C.A.No.13 of 1991 filed by him, the learned Sessions Judge, Chengalpattu confirmed the conviction and sentence. Therefore, the petitioner has preferred this revision. 2. The State by the Public Prosecutor representing the Inspector of Police, Kancheepuram taluk is the appellant in C.A.No.577 of 1991. The respondents are Arasu alias Thirunavukarasu and Viswanathan. Though they were convicted for the offence under Sec.380 read with Sec.34, I.P.C, the learned Judicial Magistrate, Chengalpattu in C.C.No.103 of 1988 acquitted them in respect of the offence under Sec.45 read with Sec.34, I.P.C. As against this acquittal, this appeal has been filed by the State before this Court. 3. Since the parties are the same and both these matters arise out of the same case, a common judgment is being rendered in these revision and appeal. 4. The facts of the case are as follows: (a) P.W.1 Varadachariar was working in Devaraja Swami Devasthanam temple at Kancheepuram for 50 years. He was the person incharge of decorating the idols at the temple. On 7.5.1986 at about 6.30 a.m., he noticed a rope was hanging on the compound wall. Shocked, he informed this to watchman P.W.4 Ganesan, who in turn gave this information to P.W.2 Santhanam, the temple Maniam, Then, as directed, P.W.5 temple executive treasurer gave a complaint to the police, After verification, certain jewels were found missing. P.W.23 Rajakannu, the Sub Inspector of Police registered the case in Cr.No.532 of 1986 for the offences under Secs.457 and 380, I.P.C. Ex.P-7 is the printed F.I.R. (b) At 12.30 p.m., P.W.23 came to the scene and prepared observation mahazar Ex.P-8 attested by P.W.6 At about 1.15 p.m. P.W.23 recovered M.O 18 series lock and M.0.19 key under Mahazar Ex.P-20. At 2.00 p.m. ‘L’ shaped rod (M.O.21) and M.O. 16 pre found at the scene were recovered under Mahazar Ex.P-10. (c) P.W.24 Ramakrishnan, Inspector of Police took up investigation and examined the witnesses. On 12.6.1986 at about 3.00 p.m., he arrested one Shanmugam (P.W.22). He pointed out Mani, the co-accused. He was also arrested. At 2.00 p.m. ‘L’ shaped rod (M.O.21) and M.O. 16 pre found at the scene were recovered under Mahazar Ex.P-10. (c) P.W.24 Ramakrishnan, Inspector of Police took up investigation and examined the witnesses. On 12.6.1986 at about 3.00 p.m., he arrested one Shanmugam (P.W.22). He pointed out Mani, the co-accused. He was also arrested. On confession M.O.32 and M.O.34 series to M.O.44 series were recovered from the house of the said Shanmugam (P.W.22). On the confession of Mani M.Os.45 to 53 were recovered. (d) On 13.6.1986, at the instance of P.W.22, M.Os.54 to 58 were recovered from the house of one Anbazhagan. (e) On 14.6.1986 at his instance M.Os.68 and 69 were recovered from the house of one Immanuel Nadar. On the same day, at the instance of P.W.22, the blocks for making bricks M.O.31 was recovered. (f) On 15.6.1986, at the instance of Mani, M.Os.70 to 73, were recovered from the house of one Noor Mohamed. (g) On 17.6.1986, M.O.74 was recovered at the instance of Mani from the house of one Sahayam at Kunrathur. On the same day, at the instance of Mani, M.O.75 was recovered from the pawn broker Parasmal. (h) On 19.6.1986, at the instance of P.W.22 and Mani, M.Os.76 to 81 were recovered from the house of one Vedachalam. (i) In the meantime, on 12.6.1986, P.W.25 arrested Viswanathan, the petitioner (A-2) in criminal revision and obtained a confession. At his instance, M.O.25 series and M.O.26 series, pledged jewels were recovered from the shop of P.W.13. On 13.6.1986, at the instance of A-2, M.O.29 series was recovered from the shop of P.W.13. On the same day, at the instance of A-2, M.O.27 series was recovered from the shop of P.W.11. (j) The first respondent, Arasu alias Thirunavukarasu (A-l), in the appeal filed by the State, was arrested by P.W.24 on 20.6.1986 and his confession was recorded. At his instance, M.Os.82 to 88 were recovered from his house. On 26.6.1986, at the instance of said Arasu and P.W.22, the jewels were recovered from the shop of P.W.7. After completing the investigation, P.W.24 filed the charge sheet on 6.8.1986. 5. During the course of trial, P.Ws.l to 25 were examined, Ex.P-1 to Ex.P-36 were filed and D.W.1 was examined. The case of accused was one of denial. 6. Originally, charge sheet was filed against A-1 to A-4. The charges were framed on 6.10.1986 against all the four accused. After completing the investigation, P.W.24 filed the charge sheet on 6.8.1986. 5. During the course of trial, P.Ws.l to 25 were examined, Ex.P-1 to Ex.P-36 were filed and D.W.1 was examined. The case of accused was one of denial. 6. Originally, charge sheet was filed against A-1 to A-4. The charges were framed on 6.10.1986 against all the four accused. A-l and A-2 Shamugam and Mani respectively, were charged for the offences under Secs.457 and 380, I.P.C. A-3 and A-4, Arasu alias Thirunavukarasu and Viswanathan respectively, were charged for the offences under Secs.457 and 380 read with 34, I.P.C. 7. Since A-l and A-2 pleaded guilty, they were convicted for the said offences in C.C.No.841 of 1986 and the case was split up as against A-3 and A-4 and a new number was given as C.C.No.411 of 1986 by the learned First Class Magistrate, Chengalpattu treating A-3 and A-4 as A-l and A-2. Initially, 17 witnesses were examined in the said court. At that point of time, on the order of the Sessions Judge Chengalpattu, the case was transferred to the learned Chief Judicial Magistrate, Chengalpattu, who in turn took the case in C.C.No.103 of 1988 and thereafter, the remaining witnesses were examined. 8. On conclusion of trial, after having considered the materials adduced by both the parties, the learned Chief Judicial Magistrate, Chengalpattu, convicted the accused for the offence under Sec.380 read with Sec.34, I.P.C., However, they were acquitted in respect of the charge under Sec.457 read with 34, I.P.C. 9. As stated earlier as against the said conviction, both A-l and A-2 filed an appeal before the learned Sessions Judge, Chengalpattu. In the said appeal, the conviction and sentence were confirmed. A-l (Arasu alias Thirunavukarasu) did not choose to file any revision as against the confirmation of the conviction. However, A-2 Viswanathan alone has preferred the revision in Crl.R.C.No.543 of 1991 before this Court. As against the acquittal in respect of the offence under Sec.457 read with 34, I.P.C. an appeal has been filed by the State in C.A.No.577 of 1991 as against both the accused. 10. Since A-l Arasu alias Thirunavukarasu did not responded to the notice sent by this Court in the appeal against the acquittal, this Court issued non-bailable warrant on 11.3.1998. The police agency was not able to trace him out initially. 10. Since A-l Arasu alias Thirunavukarasu did not responded to the notice sent by this Court in the appeal against the acquittal, this Court issued non-bailable warrant on 11.3.1998. The police agency was not able to trace him out initially. Therefore, the matter was adjourned for a number of hearings and ultimately, the said Arasu was arrested and produced before this Court. Then, he was released on bail pending appeal before this Court. 11. Going to the merits of the case in revision, the main thrust of the argument advanced by Mr.Ashokan, the learned senior counsel appearing for the petitioner Viswanathan (A-2), is that there is no direct evidence against the petitioner except the belated recovery and that the evidence of P.W.22 has to be totally ignored, inasmuch as the said witness was originally an accused in the same case and he was convicted on pleading his guilty. Therefore, in the absence of any pardon tendered to him under Sec.306, Crl.P.C. his evidence cannot be relied upon. 12. It is true that if the evidence of P.W.22 is eschewed, the only material available against the petitioner is the alleged recovery. The occurrence had taken place on 7.5.1986 and the recovery was made on 12.6.1986. So, when the recovery was made after a month, it is essential on the part of the prosecution to prove that the petitioner was also one of the participants in the main crime, theft of jewels from the temple. The only evidence to prove the same is available through P.W.22. 13. Mr.Ashokan, the learned senior counsel cited two authorities against the proposition which he relies upon, namely, Sathiyamoorthy v. State Sathiyamoorthy v. State , (1997) 2 L.W. (Crl.) 754 and Kandaswamy Gounder IN RE. Kandaswamy Gounder IN RE. 1957 M.W.N. (Crl.) 69. 14. It is seen that in the said decisions the witness earlier arrayed as accused pleaded guilty and thereafter, the trial was split up as against the other accused and it was held that he could be considered to be a competent witness, as he was not being jointly tried with the other accused. 15. 1957 M.W.N. (Crl.) 69. 14. It is seen that in the said decisions the witness earlier arrayed as accused pleaded guilty and thereafter, the trial was split up as against the other accused and it was held that he could be considered to be a competent witness, as he was not being jointly tried with the other accused. 15. However, the learned senior counsel would distinguish those judgments by stating that in the instant case, the trial had commenced the moment charges were framed against all the accused and that therefore, it must be taken to mean that they have been jointly tried and as such, P.W.22 cannot be a competent witness, in the said joint trial. 16. In reply to the said submissions, the learned Government Advocate, would cite a decision in Union of India v. Maj.Gen.Madan Lal Yadav Union of India v. Maj.Gen.Madan Lal Yadav , 1996 S.C.C. (Crl.) 592 in order to show when actually the trial commences. 17. On a careful consideration of the submissions, in the light of the circumstances and the dictum laid down in the decisions mentioned above, I am of the view that Shanmugam (P.W.22) who was originally an accused, can be treated as a competent witness. 18. No doubt, it is true that as per the rulings of the Apex Court, the trial starts in the warrant case when the charges are framed and pleas are recorded. In this case, when the charges were framed against all the accused, A-l and A-2 pleaded guilty and the same was recorded. On the basis of that, conviction was also imposed. Therefore, the trial was over as far as A-l and A-2 are concerned. Thereafter, the case was split up by giving a new C.C. number as against the other accused, viz., A-3 and A-4 treating them as A-l and A-2. Initially, the case was tried by the First Class Judicial Magistrate, Chengalpattu and 17 witnesses were examined. Thereafter, it was transferred to the Chief Judicial Magistrate, Chengalpattu and the remaining witnesses were examined. The witnesses in question was examined as P.W.22 before the learned Chief Judicial Magistrate, Chengalpattu. No objection was raised at that time. In fact, on behalf of accused, P.W.22, was cross examined. However, this point was argued before the trial court and the lower appellate court. The witnesses in question was examined as P.W.22 before the learned Chief Judicial Magistrate, Chengalpattu. No objection was raised at that time. In fact, on behalf of accused, P.W.22, was cross examined. However, this point was argued before the trial court and the lower appellate court. Both the courts below would held that P.W.22 is a competent witness, but, however, his evidence has to be analysed cautiously and it could be accepted, inasmuch as there is corroboration. 19. So, in the light of the said view, both the courts considered the other evidence as a corroborative evidence and relied upon P.W.22. P.W.22, in fact, pleaded guilty and and he was sentenced to imprisonment. After he underwent imprisonment, he came to the court as a witness. 20. In fact, by examining P.W.22 as a witness, the prosecution takes risk. Supposing he makes a statement anything against the prosecution, then the court will have to give importance to his statement, as he cannot be treated as a hostile witness. 21. Moreover, it is to be noticed that through P.W.22 was cross-examined, the evidence of P.W.22 in the chief-examination relating to the plan to commit the theft of jewels from the temple, joining together, entering into the temple and the sharing of the booty, has not been disputed in the cross-examination. Therefore, the evidence adduced by P.W.22 assumes great significance. 22. When P.W.22 gave evidence, he had not been examined as an approver nor as a co-accused. Once he was convicted and had undergone imprisonment for the said conviction, he could no more be an accused in the trial of the other case, which was split up as against the present A-l and A-2. 23. Therefore, I am not impressed by the submission made by the learned senior counsel appearing for the petitioner in the revision that the evidence of P.W.22 should be ignored. Both the trial court as well as the lower appellate court have elaborately considered the other aspects regarding the recovery on the confession of A-l and A-2. Several pawn-brokers have been examined to show that these properties were handed over by A-l and A-2 by way of pledge or for making jewels. Both the trial court as well as the lower appellate court have elaborately considered the other aspects regarding the recovery on the confession of A-l and A-2. Several pawn-brokers have been examined to show that these properties were handed over by A-l and A-2 by way of pledge or for making jewels. The submission by the learned senior counsel with regard to the failure on the part of the prosecution to account for some items of the properties recovered in this case does not also impress me, as there is no material to show that those properties belong to any of the accused. Moreover, I do not think that the same is a valid point to disturn the impugned judgments. In view of the discussion made above, I do not find any ground to interfere with the factual findings given by both the courts below. 24. As such, the revision is liable to be dismissed, as devoid of merits. 25. Regarding C.A.No.577 of 1991, the appeal against acquittal, I find that the trial court had committed a grave illegality by acquitting the accused of the charge under Sec.457 read with 34, I.P.C. A reading of the charge sheet would show that A-l and A-2 were charged under Secs.457 and Sec.380 read with 34, I.P.C. Having held that the accused were liable to be convicted under Sec.380 read with 34, I.P.C., the trial court ought to have convicted them for the offence under Sec.457 read with 34, I.P.C. also, since the evidence of P.W.22 is clear to the effect that all the four accused entered into the temple. Arasu alias Thirunavukarasu and Viswanathan were inside the outer compound wall of the temple to facilitate the other accused, Shanmugam and Mani, to enter into the temple and to commit the offence under Sec.457, I.P.C. Therefore, as indicated earlier, this evidence was not disputed. Therefore, the trial court ought to have convicted the accused for the offence under Sec.457 read with 34, I.P.C. also, 26. In that view of the matter, I set aside the acquittal in respect of the offence under Sec.457, I.P.C. and the accused, the respondents in C.A.No.577 of 1991, are convicted for the offence under Sec.457 read with 34, I.P.C, and sentenced to undergo R.I. for 4 years. 27. In that view of the matter, I set aside the acquittal in respect of the offence under Sec.457, I.P.C. and the accused, the respondents in C.A.No.577 of 1991, are convicted for the offence under Sec.457 read with 34, I.P.C, and sentenced to undergo R.I. for 4 years. 27. Since the first respondent (A-1) Arasu alias Thirunavukarasu has already undergone R.I. for 4 years for the offence under Sec.380 read with 34, I.P.C, he need not undergo imprisonment again, as it would be taken that the sentence already undergone by him for the offence under Sec.380 read with 34, I.P.C. shall run concurrently with the sentence now imposed upon him for the offence under Sec.457 read with 34, I.P.C. 28. As far as the second respondent (A-2) Viswanathan is concerned, he has not undergone the sentence, since he was on bail. I directed the second respondent in C.A.No.577 of 1991 to undergo the said sentence. However, the sentence imposed for both the offences shall run concurrently. With the above observations, the appeal is to be allowed. 29. In the result, the revision filed by A-2 is dismissed and the appeal filed by the State is allowed.