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2012 DIGILAW 2498 (MAD)

G. Anandan v. State rep. By Inspector of Police

2012-06-18

R.MALA

body2012
Judgment :- 1. The criminal appeal arises out of judgment of conviction and sentence, dated 20.02.2004, made in S.C.No.670 of 2003, on the file of the First Additional Sessions Court, City Civil Court, Chennai, whereby the accused A3 was convicted for the offence under Section 397 read with 392 IPC and sentenced him to undergo 7 years rigorous imprisonment and imposed a fine of Rs.3,000/-in default in payment to undergo three months rigorous imprisonment. A4 and A5 were convicted for the offences under Sections 392 IPC and sentenced them to undergo five years rigorous imprisonment each and imposed a fine of Rs.3,000/-each in default in payment to undergo three months rigorous imprisonment each. 2. The respondent has filed a final report stating that on 11.09.2002, at about 5.30 p.m., near Basin bridge, the appellants, who came in auto bearing Registration No.TN05/2707, have intercepted the auto bearing Registration No.TN05/A8548 carrying P.W.1 Kuzhandairaj and P.W.2 Dhamodaran, employees of ACT India Ltd., Madhavaram, who carried Rs.50,000/-in a bag, A4 thrown chilly powder on their eyes, A3 threatened them with a knife and snatched the cash bag, and thus, thereby committed offences under sections 395, 397 r/w 34 IPC. 3. The learned X Metropolitan Magistrate, Egmore, Chennai took cognizable of the aforesaid offences and committed the case to the learned Principal Sessions Judge and that has been made over to the trial Court. On considering the records, he framed necessary charges against A1 to A6. The accused pleaded not guilty. On the side of the prosecution, P.W.1 to P.W.8 were examined and Exs.P1 to P16 and M.Os.1 to M.O.10 were marked. 4. The case of the prosecution on the basis of the evidence let in by the prosecution witness is as follows: (i) P.W.1 Kuzhandairaj and P.W.2 Dhamodaran are senior Assistant and Assistant respectively in ACT India Ltd., Madhavaram. The said Company is having its another branch situated opposite to Harbour Police station. The staff used to carry cash from this office to the Madhavaram office. A1 is an ex-employee of Act India Ltd. (ii) On 11.09.2002, at about 3.00 p.m., P.W.3 Raja/Auto Driver took P.W.1 and P.W.2 in his auto from Madhvaram to their office in Rajaji street, Ist Line Beach. At about 5.00 p.m., P.Ws.1 and 2 obtained Rs.50,000/-from the office and they returned to Madhavaram office. After crossing Basin bridge, their auto was running towards Vysarpadi. At about 5.00 p.m., P.Ws.1 and 2 obtained Rs.50,000/-from the office and they returned to Madhavaram office. After crossing Basin bridge, their auto was running towards Vysarpadi. At that time, another auto intercepted the auto, which came by P.W.1 and P.W.2. Three or four persons get down from the auto and picked up quarrel with P.W.3. Suddenly, two persons on each side of P.Ws.1 and 2 stood. A3 demanded the cash bag from P.W.1 showing a knife. A5 was standing near him. Since P.W.1 refused to part with the bag, A3 thrown chilly powder on their eyes. A5 snatched away the cash bag from P.W.1. A4 snatched away the auto key. Concealing the auto number by pasting white paper over their auto. While P.Ws.1 to 3 were trying to catch them, the accused persons fled away from the place of occurrence. (iii) At about 5.45 p.m., P.W.1 was rushed to Vysarpadi police station and gave Ex.P1 complaint. P.W.8/Inspector Dhanavel, who received the complaint, registered a case in crime No.754/2002 under Sections 392 IPC and prepared a printed F.I.R. Ex.P4 and took up the matter for investigation. Then he visited the scene of occurrence and prepared Ex.P5 observation mahazar. (iv) On 20.09.2002, at about 4.00 p.m., near Basin bridge, P.W.8 arrested A1 to A5 in the presence of P.W.6 Dharmaraj and P.W.7 Nagaraj. A1 gave his confession and admitted portion of A1 was marked as Ex.P6. Then, P.W.8 seized a sum of Rs.2,100/-from the house of A1 at 8.20 a.m. on 21.09.2002 under Ex.P11. Likewise, A2 gave his confession and admitted portion of A2 was marked as Ex.P9. Then, P.W.8 seized a sum of Rs.7,200/- from the house of A2 at 10.20 a.m. on 21.09.2002 under Ex.P15. On the basis of the confession given by A3, Rs.3,600/-was seized from his house under Ex.P13 at 9.00 a.m. and the admitted portion of his confession was marked as Ex.P7. On the basis of the confession given by A4, Rs.2,100/-was seized from his house under Ex.P12 at 8.30 a.m. and the admitted portion of his confession was marked as Ex.P8. On the basis of the confession given by A5, Rs.2,000/-was seized from his house under Ex.P14 at 9.30 a.m. and the admitted portion of his confession was marked as Ex.P10. Auto travelled by the accused was seized under Ex.P16 and the same was marked as M.O.10. On the basis of the confession given by A5, Rs.2,000/-was seized from his house under Ex.P14 at 9.30 a.m. and the admitted portion of his confession was marked as Ex.P10. Auto travelled by the accused was seized under Ex.P16 and the same was marked as M.O.10. (v) During the course of investigation, P.W.4 Inspector came to know about the involvement of A6 in another case in Crime No.585 of 2002 under Sections 395, 397 read with 34 IPC and that he arrested A6 and recorded his confession statement. (vi) Then, P.W.8 gave requisition to the learned Chief Metropolitan Magistrate, Egmore, to conduct Identification parade. In pursuance of that, P.W.8 received Ex.P2-proceedings of the learned Chief Metropolitan Magistrate and P.W.5-Thanga Mariappan, XII Metropolitan Magistrate, Egmore, conducted Identification parade and the Test Identification parade Report was marked as Ex.P3. P.W.1 identified A1 to A5, P.W.2 identified A2 to A4 and P.W.3 identified A2 to A5. After examining the witnesses, P.W.8 recorded their statements and after completing his investigation, P.W.8 filed a charge sheet against the accused for the offences under Sections 395, 397 read with 34 IPC. (vii) The learned Sessions Judge placed the incriminating evidence against the accused and the accused denied the same in toto. The Sessions Court after considering the oral and documentary evidence, acquitted A1, A2 & A6 and convicted A3 to A5 and sentenced them as stated above. 5. Challenging the conviction and sentenced passed by the Sessions Court, Mr. K. Kannan, learned counsel appearing for the appellants would submit that the evidence of P.W.1 and P.W.2 is not trustworthy. During trial, P.W.3/Auto driver was also turned hostile. The accused/appellants were not properly identified. After arresting the accused, photographs of the accused were shown to P.W.1 to P.W.3 in the police station before conducting Identification parade. But the trial Court has not considered the above aspect in proper perspective. He further submitted that P.W.6 and P.W.7, who are attestors of the confession and recovery mahazar, were turned hostile. There is no evidence for recording confession of the accused and recovery of money. Currency notes have been seized from the accused, but there is no specific identification for the currency notes that it was taken from P.W.1. Except ipse dixit of P.W.8, there is no evidence for arrest, confession and seizure of amount. That factum has not been considered by the trial Court. Currency notes have been seized from the accused, but there is no specific identification for the currency notes that it was taken from P.W.1. Except ipse dixit of P.W.8, there is no evidence for arrest, confession and seizure of amount. That factum has not been considered by the trial Court. Hence, he prayed for acquittal of the appellants. 6. Resisting the same, learned Government Advocate (Crl. Side) would submit that A1 was an ex-employee of ACT India Limited, Madhavaram, where P.W.1 and P.W.2 were working. The charges have been levelled against the accused persons, since P.W.1 and P.W.2 were identified A3 to A5 and they corroborated each and every aspects of commission of offence. The trial Court considered this aspect in proper perspective and came to the correct conclusion. It is further submitted that Ex.P3 Test Identification parade has clearly proved that P.W.1 to P.W.3 were identified the accused A3 to A5. Identification parade has been conducted in accordance with law and hence, there is no reason for warranting interference with the findings of the trial Court. Hence, he prayed for dismissal of the appeal. 7. Considered the rival submissions made on both sides and the materials available on record. 8. It is true, as per the evidence of P.W.1 and P.W.2, who are eye witnesses, they have not mentioned the identification of the accused in Ex.P1 complaint. But in the complaint, P.W.1 has specifically stated that they are capable of identifying the accused. In the complaint, they have stated as follows: "TAMIL” The occurrence had taken place on 11.09.2002, at 17.20 hours and the complaint was given at 17.40 hours within 20 minutes. So there is no delay in preferring the complaint. In the complaint itself, it was stated that they are able to identify the accused. As per the case of the prosecution, accused A1 to A5 were arrested and gave their confession and on that basis, recovery has been made. But the attestors P.W.6 Dharmaraj and P.W.7 Nagaraj turned hostile and they gone to the extent of saying that signatures in confession and seizure mahazar Exs.P5 to P16 does not belong to them. 9. At this juncture, this Court has to consider as to whether Identification parade has been conducted in accordance with law. The learned Chief Judicial Magistrate gave a direction to P.W.5 to conduct test Identification parade in accordance with law. 9. At this juncture, this Court has to consider as to whether Identification parade has been conducted in accordance with law. The learned Chief Judicial Magistrate gave a direction to P.W.5 to conduct test Identification parade in accordance with law. On 01.10.2002, Identification parade has been conducted and after conducting identification parade, he sent report Ex.P3. While perusing Ex.P3-report of identification parade, P.W.1 identified the accused A1 to A5, P.W.2 identified A2 to A4 and P.W.3 identified A2 to A5. After conducting identification parade, A3 has not stated anything in respect of the manner the identification parade has been conducted. A4 stated that he was taken by the police to ACT India Limited, Madhavaram, where P.W.1 and P.W.2 saw him. Then they came to police station and witnesses the same and thereafter, P.W.1 and P.W.2 identified A4 in the identification parade. A5 also stated that P.W.3/Raja, who is an Auto driver came to the police station and A5 was shown to P.W.3 by the police at the time P.W.3 did not identify him. Then only, A5's photo has taken and that has been shown to P.W.3 for identification. 10. At this juncture, it is appropriate to consider the cross-examination of P.W.1 and P.W.2. P.W.1 in his cross-examination, he denied a suggestion which was posed to him that after showing photographs of the accused, he identified the accused in Identification parade. In the cross-examination of P.W.2, he also denied the above said suggestion which was posed to him. He further stated that he has not identified the accused in the police station. P.W.3/Auto driver, who turned hostile, in his cross-examination, he stated that on the basis of the photographs shown by the police, he identified the accused persons. But he has not identified the accused in the police station. So I do not find any reason for discarding Ex.P3-Test Identification parade, which was done in accordance with law. Since P.W.3 turned hostile, no reliance can be placed on the evidence of P.W.3. P.W.6 and P.W.7 attestors of the confession and seizure mahazar were turned hostile. But it will not affect the case of the prosecution. 11. Only evidence available is P.W.1 and P.W.2. On considering chief and cross-examination of P.W.1 and P.W.2, I do not find any reason for discarding their evidence, since their evidence is natural, cogent and trustworthy and hence, it is reliable. But it will not affect the case of the prosecution. 11. Only evidence available is P.W.1 and P.W.2. On considering chief and cross-examination of P.W.1 and P.W.2, I do not find any reason for discarding their evidence, since their evidence is natural, cogent and trustworthy and hence, it is reliable. Furthermore, the evidence of P.W.1 and P.W.2 corroborated with each other. 12. It is also pertinent to note that there is no enmity between the accused persons and P.W.1 & P.W.2, to give false evidence against the accused and identified the accused during identification parade. That factum has been clearly considered by the trial Court in para-29 of the judgment. So the evidence of P.W.1 and P.W.2 has clearly proved that the appellants/A3 to A5 alone travelled in the auto and way laid the auto driven by P.W.3, in which, P.W.1 and P.W.2 carrying office cash of Rs.50,000/- and that the accused persons committed robbery and made a threat. At the time of commission of offence, A3 used a knife, a deadly weapon and threatened P.W.1 to hand over the cash bag and he put knife on his stomach, it shows that A3 made an attempt to cause death or grievous injury to P.W.1. So the prosecution has rightly established that A3 is guilty for the offence under Section 397 read with 392 IPC. Since A4 and A5 had participated in the robbery, they are guilty under Section 392 IPC. Hence, I am of the considered view, the findings of the trial Court and the conviction passed by the trial Court does not warrant any interference. 13. Considering the gravity of the offence, the sentence imposed by the trial Court does not warrant any interference. Hence, the judgment of conviction and sentence passed by the trial Court is hereby confirmed. 14. In fine, (i) Criminal Appeal is dismissed. (ii) Judgment of conviction and sentence passed by the trial Court is hereby confirmed. (iii) Bail bond, if any, executed by the accused/appellants, shall stand cancelled. (iv) The trial Court is directed to secure the custody of the accused to undergo the remaining period of sentence.