Judgment :- 1. The criminal appeal arises out of the judgment of conviction and sentence, dated 30.06.2008, made in S.C.No.165 of 2006, on the file of the Additional Sessions Court (Fast Track Court No.1), Erode., whereby the accused 1 to 4 were convicted for the offence under Section 395 IPC and sentenced them to undergo 10 years rigorous imprisonment and A1 and A2 were convicted for the offence under Section 394 IPC and sentenced them to undergo 5 years rigorous imprisonment each. 2. The respondent has filed a charge sheet against the accused stating that on 23.01.2006, at 10.30 p.m., between Erode and Chennimalai road, near Sipcot Industrial estate, when P.W.1/Krishnamurthy and P.W.2/Sakthivel were proceeding in T.V.S. Excel Super bearing Registration No.TN33AP6307, at the time, the accused 1 to 4 along with one Dhanalakshmi @ Revathi, with an intention to rob them, wantonly restraining P.W.1 and P.W.2, snatched their jewels, Nokia mobile phone and also T.V.S. Excel super, the two wheeler and assaulted them with beer bottle and thereby, committed the offence under Sections 395, 394 and 395 r/w 397 IPC. 3. The case of the prosecution is as follows: (i) On 23.01.2006, at 10.30 p.m., P.W.2/Sakthivel, who was riding the two wheeler and P.W.1/Krishnamurthy, who was the pillion rider, crossed Erode-Chennimalai road, near Sipcot Industrial Estate, at that time, one Dhanalakshmi @ Revathi/A1, stopped the vehicle and she came near them for asking something. So P.W.2 stopped the vehicle and suddenly, the said Dhanalakshmi shouted Babu, Kumar, Armugam, Muthupandi, who were arrayed as A2 and A5 respectively in the charge sheet and asked them to come there. The accused 2 to 5, who were hiding in the bush, came there and by rounding P.W.1 and P.W.2 demanded the things they possessed. Since P.W.1 and P.W.2 refused to produce the same, Babu/A2 assaulted P.W.1 with beer bottle and snatched M.O.1/Nokia mobile phone and M.O.2/one sovereign ring, M.O.3/T.V.S. Excel super from P.W.1 and Kumar/A3 snatched M.O.4/ring, M.O.5/Timex watch, M.O.6/Nokia cell phone, M.O.7/three sovereign chain from P.W.2. The accused assaulted both P.W.1 and P.W.2 and left the place. Because of sudden incident, P.W.1 and P.W.2 got astonished and standstill. The accused assaulted both P.W.1 and P.W.2 and left the place. Because of sudden incident, P.W.1 and P.W.2 got astonished and standstill. Thereafter, they took one mini auto and admitted P.W.2/Sakthivel, who sustained grievous injury, in Erode Government Hospital and then P.W.1 intimated the same to his uncle namely, Arunachalam, who was examined as P.W.3, rushed to the hospital after receiving information and admitted P.W.1 in the hospital. (ii)On 24.01.2006, at 0.45 hours, P.W.8/Ravindran, who treated P.W.2, gave Ex.P17 Accident Register Copy, in which, he stated that P.W.2 was alleged to have been assaulted by four unknown men with bottle and hands at 10.30 p.m., on 23.01.2006, near Sipcot, Chennimalai road. He examined P.W.2 and took x-ray. He gave Ex.P18 wound certificate, in which, the following external injuries were mentioned. "Laceration 3 X 2 X 2 cm over right mastoid region; Laceration 5 X 3 X 2 cm over middle of left forearm; Laceration 2 X 2 X 2 cm, 2 inches distal to injury No.2; Contusion, vertical 20 X 3 cm over left side of back; " He opined that all the four injuries are simple in nature. On 24.01.2006, at 4.00 a.m., he treated P.W.1/Krishnamurthy and gave Ex.P19 Accident Register copy and Ex.P20 wound certificate, in which, the following external injuries were mentioned. "(i) Contusion 10 X 4 cm left side of back; (ii) Transverse abrasion, 2 in number, 10 X 1 cm and 6 X 1 cm over right side abdomen;" Immediately, he intimated the incident to the concerned police. (iii) On 24.01.2006, at 4.30 a.m., P.W.7/Murugesan, who was working as Sub-Inspector of Police, Erode Taluk Police station, received information from the Erode Government Hospital and rushed to the hospital at 5.15 a.m. and examined P.W.1 and recorded his confession and received Ex.P1 complaint and registered a case in Crime No.19 of 2006 under Sections 394, 395 and 397 IPC. Then he prepared printed F.I.R. Ex.P16 and despatched the same to the learned Judicial Magistrate No.I, Erode and concerned officials. (iv) On 24.01.2006, at 6.30 a.m., P.W.9/Munira Begam, Inspector of Police, took up the case for investigation and rushed to the place of occurrence at 7.30 a.m. She prepared Ex.P2 observation mahazar at 8.00 a.m. and drew Ex.P21 rough sketch in the presence of the witnesses P.W.4/Thangavel, Village Administrative Officer and his Assistant one Shanmugam. (iv) On 24.01.2006, at 6.30 a.m., P.W.9/Munira Begam, Inspector of Police, took up the case for investigation and rushed to the place of occurrence at 7.30 a.m. She prepared Ex.P2 observation mahazar at 8.00 a.m. and drew Ex.P21 rough sketch in the presence of the witnesses P.W.4/Thangavel, Village Administrative Officer and his Assistant one Shanmugam. Then she examined the witnesses namely, Palanichamy, Kandasamy, Arunachalam and recorded their statements. She seized M.O.9/pieces of broken beer bottle under Ex.P3 in the place of occurrence. Then she went to the Erode Government Hospital at 9.30 a.m. and examined P.W.1 and recorded his statement. She also recovered M.O.10/blood stained half hand shirt under Ex.P4. She examined P.W.2 and recorded his statement and recovered M.O.8/blood stained rose coloured full hand shirt under Ex.P5 in the presence of above said witnesses. At 11.00 a.m., she arrested Kumar/A3 and recorded his confession in the presence of same witnesses. The admitted portion of confession was marked as Ex.P6. In pursuance of that, A3 handed over M.O.1 & M.O.3 and the same were seized under Ex.P7. At 12.30 p.m. according to the confession of A3/Kumar, P.W.9 arrested other four accused. She recorded confession of A4/Arumugam and the admitted portion was marked as Ex.P8. In pursuance of that, she seized M.O.5/Watch and one silver waist cord under Ex.P9. A2/Babu gave his confession and the admitted portion was marked as Ex.P10. He handed over M.O.2, M.O.4 and M.O.6 and the same were seized under Ex.P11. A1/Dhanalakshmi @ Revathi gave herself confession at 3.30 p.m. and the admitted portion was marked as Ex.P12. On that basis, Revathi handed over 3 sovereign chain (i.e) M.O.7, which was seized under Ex.P13. A5/Krishnan @ Muthupandi gave his confession and the same was recorded in between 5.00 and 6.00 p.m. The admitted portion was marked as Ex.P14. In pursuance of his confession, one Nokia phone and M.O.11 were seized under Ex.P15. P.W.9 after returning to police station at 8.00 p.m., she handed over A1 to A5 along with the material objects to the concerned police official. Very next day (i.e.) on 25.01.2006, she examined P.W.1/Krishnamoorthy, P.W.2/Sakthivel and Head constable and recorded their statement. On the day itself, she sent the material objects to the Court. Then, she handed over the case diary to P.W.10 for further investigation. (v) P.W.10/Maraimalai, who was working as Inspector in Erode Taluk Police station, took up the matter for further investigation. Very next day (i.e.) on 25.01.2006, she examined P.W.1/Krishnamoorthy, P.W.2/Sakthivel and Head constable and recorded their statement. On the day itself, she sent the material objects to the Court. Then, she handed over the case diary to P.W.10 for further investigation. (v) P.W.10/Maraimalai, who was working as Inspector in Erode Taluk Police station, took up the matter for further investigation. He obtained finger prints of the accused and sent the same to the finger prints' experts for his opinion. On 14.03.2006, he went to Erode Government Hospital and examined P.W.8/Dr.Ravindran, who treated P.W.1 and P.W.2 and obtained wound certificate. After completing investigation, he filed a charge sheet against the accused under Sections 394, 395 and 397 IPC. 4. The trial Court after following the procedure framed necessary charges. Since the accused pleaded not guilty, the trial Court examined P.W.1 to P.W.10 and marked Exs.P1 to P21 and M.O.1 to M.O.11 and placed the incriminating evidence against the accused and the accused denied the same in toto. On the side of the accused, no witness was examined and no documentary evidence was marked. After framing charges, A1/Dhanalakshmi @ Revathi was absconding. So the case against Dhanalakshmi @ Revathi has been split up as S.C.No.96 of 2008 and the array of the accused were changed. So A2/Babu was arrayed as A1, A3/Kumar @ Kumaresan was arrayed as A2, A4/Arumugam was arrayed as A3, A5/Krishnan @ Muthupandi was arrayed as A4, in the trial Court's Judgment. The trial Court after considering oral and documentary evidence, convicted and sentenced A1 to A4 as stated above. 5. Even though A1 to A4 were convicted, A2/Kumar @ Kumaresan and A4/Krishnan @ Muthupandi in the trial Court's Judgment alone preferred appeals in Crl.A.No.426 of 2009 and 512 of 2008 respectively. 6. Challenging the conviction and sentence passed by the trial Court, Mr.R.Marudhachalamurthy, learned counsel appearing for the appellant/A2/Kumar @ Kumaresan in Crl.A.No.426 of 2009, would make the following submissions: (i) There is a contradiction in the evidence of P.W.1 to P.W.9. (ii) There is a material contradiction found in Ex.P1 complaint and Ex.P16 F.I.R. In Ex.P1 complaint, P.W.1 stated that one lady namely, Revathy shouted Babu, Kumar, Aru, Muthupandi, to come there. (iii) In Ex.P16 F.I.R., P.W.7 mentioned alias name of A2 (i.e.) Kumar @ Kumaresan. There was no explanation offered by P.W.7 as to how he got alias name of A2 (i.e.) Kumar @ Kumaresan. (iii) In Ex.P16 F.I.R., P.W.7 mentioned alias name of A2 (i.e.) Kumar @ Kumaresan. There was no explanation offered by P.W.7 as to how he got alias name of A2 (i.e.) Kumar @ Kumaresan. It shows that A2 was already arrested and kept in police station and then, a false case has been foisted against him. (iv) The prosecution did not file any documents to show that P.W.1 and P.W.2 alone are owners of the material objects seized from them. (v) M.O.3 indicates T.V.S. Excel Super Bajaj bearing Registration No.TN33AP6307. But P.W.1 and P.W.2 in their evidence they stated they were coming in T.V.S. 50, which is different. (vi) Recovery Mahazar Exs.P7, P9, P11 and P13 also contains material alteration. Hence, the prosecution has not proved the guilt of the appellant/A2 beyond all reasonable doubt and therefore, he prayed for acquitting A2/Kumar @ Kumaresan. 7. Challenging the conviction and sentence passed by the trial Court, Mr.I.C.Vasudevan, learned counsel appearing for the appellant/A4/Krishnan @ Muthupandi in Crl.A.No.512 of 2008, would make the following submissions: (i) Place of occurrence is doubtful. (ii) The recovery has not been proved in accordance with law and the material objects are available in open market and common in nature. (iii) As per complaint, it was stated as 'Muthupandi'. But in Ex.P16 F.I.R., in the F.I.R. column, it was mentioned as Krishnan @ Muthupandi. So F.I.R. is after thought and there is no proper explanation offered by the prosecution as to how they got full name of the accused. (iv) P.W.1 and P.W.2 did not know A4/Krishnan @ Muthupandi personally. After A4 had taken to police station, a false case has been foisted against him. No identification parade has been conducted. P.W.1 and P.W.2 correctly identified the accused in police station is unbelievable. (v) There is no previous bad antecedent against A4/Krishnan/Muthupandi. (vi) A previous complaint given to out post police station has been suppressed by the prosecution. Hence, he prayed for acquitting A4/Krishnan @ Muthupandi. 8. Resisting the same, Mr.C.Emalias, learned Government Advocate (Crl. Side) submitted that F.I.R. has been reached the Court at 9.30 a.m., on 24.01.2006, so there is no delay. Admittedly, P.W.1 and P.W.2 did not know A1 to A5. When Dhanalakshmi @ Revathi called their names, at that time only, P.W.1 and P.W.2 came to know their names and mentioned in the complaint. Side) submitted that F.I.R. has been reached the Court at 9.30 a.m., on 24.01.2006, so there is no delay. Admittedly, P.W.1 and P.W.2 did not know A1 to A5. When Dhanalakshmi @ Revathi called their names, at that time only, P.W.1 and P.W.2 came to know their names and mentioned in the complaint. It is true, alias names have been given in respect of A2/Kumar and A4/Krishnan and it is a mistake committed by P.W.7/Sub-Inspector of Police and it will not vitiate entire prosecution case. P.W.1 and P.W.2 were identified the accused, merely because they were not identified the dress colour of the accused, which is not fatal to the case of the prosecution. He further submitted that over writing in seizure mahazar is not fatal to the case and there was no first complaint and the same was not suppressed by the prosecution. Hence, he prayed for dismissal of the appeal. 9. Considered the rival submissions made on both sides and the materials available on record. 10. Now this Court has to decide whether there is any delay in preferring complaint and whether there is any previous complaint lodging before out-post police station in front of the Erode Government Hospital? The alleged occurrence was said to have taken place on 23.01.2006, at 10.30 p.m. While considering the evidence of P.W.1 and P.W.2, they were not aware of the accused. So when they were admitted in hospital, they had specifically mentioned that they were allegedly assaulted by four unknown persons with hands and beer bottles. While perusing Ex.P1 complaint, P.W.1 stated that one lady requested them to stop the vehicle and when they stopped the vehicle, she called the persons viz., Kumar, Babu, Aru, Muthupandi. Therefore, P.W.1 mentioned the names of the accused in complaint. It is true, in Ex.P1 complaint, alias names of the accused were not mentioned. But in Ex.P16/F.I.R., in column No.7, alias names of the accused 2 and 4/appellants were mentioned, but no explanation has been offered by the prosecution. Furthermore, F.I.R. has been reached the Court on 24.01.2006, at 9.30 a.m. itself. P.W.9 in her evidence, she stated that she arrested A2/Kumar at 11.00 a.m. and thereafter, she arrested other accused. 11. Learned counsel for the appellants submitted that initially P.W.1 gave his complaint before out-post police station. Furthermore, F.I.R. has been reached the Court on 24.01.2006, at 9.30 a.m. itself. P.W.9 in her evidence, she stated that she arrested A2/Kumar at 11.00 a.m. and thereafter, she arrested other accused. 11. Learned counsel for the appellants submitted that initially P.W.1 gave his complaint before out-post police station. While perusing chief-examination of P.W.1, he stated that at 5.00 a.m., a police from Erode Taluk Police station recorded his statement. In his cross-examination, in page-6, P.W.1 stated that after he reached the Government Hospital, he intimated the incident before the out-post police station. But this out-post police station only get information and then intimate the same to the concerned police station and the out-post police station has not recorded any complaint from the injured. In such circumstances, argument advanced by the learned counsel for the appellants that there are two complaints and the first complaint before out-post police station was suppressed by the prosecution, does not merit acceptance. 12. It is true, the occurrence said to have taken place at 10.30 p.m. near Sipcot, in Erode-Chennimalai road, wherein there are bushes in both sides. As soon as the incident occurred, P.W.1 and P.W.2 stand still and they did not know what to do. Thereafter, they went to Erode Government Hospital and admitted P.W.2, who sustained grievous injury and intimated the same to P.W.3, who is the uncle of P.W.1. It was evidenced by P.W.8/Dr.Ravindran and proved by way of marking Exs.P17 to P20. P.W.7/Sub-Inspector received intimation at 5.00 a.m. and gone to the hospital and recorded complaint from P.W.1 and after returning police station, he registered a case in Crime No.19 of 1996 at 6.15 a.m. and the same has been reached the Court at 9.30 a.m. Considering the above facts, I am of the view, there was no delay in preferring complaint. Even though the delay of 4 = hours in preferring complaint is not fatal to the case of the prosecution. 13. It is true, there was no identification parade conducted by the prosecution. Considering the evidence of P.W.1, on 24.01.2006, at 11.00 a.m., A2/Kumar was arrested and thereafter, other accused were arrested and their confession have been recorded and material objects were seized. P.W.4/Thangavel, an V.A.O. and one Shanmugam are the attestors of the seizure mahazar and confession (i.e.) Exs. P6 to P15. The material objects have been identified by P.W.1 and P.W.2. Considering the evidence of P.W.1, on 24.01.2006, at 11.00 a.m., A2/Kumar was arrested and thereafter, other accused were arrested and their confession have been recorded and material objects were seized. P.W.4/Thangavel, an V.A.O. and one Shanmugam are the attestors of the seizure mahazar and confession (i.e.) Exs. P6 to P15. The material objects have been identified by P.W.1 and P.W.2. In the complaint, P.W.1 did not mention the model number of the phone and description of the properties he possessed. Merely because, he did not give description of the properties in the complaint, is not fatal to the case of the prosecution. It is a well settled principle of law, complaint and F.I.R. are not an Encyclopedia. The accused name, place of occurrence and ingredients of offence are sufficient. On perusal of Section 161 statement of P.W.2/Sakthivelu, he has given his Nokia phone model Number as 3315' and during his examination, P.W.2 deposed the same. P.W.1's statement reveals that he was possessed the Nokia Phone Model No.1100. In such circumstances, argument advanced by the learned counsel for the appellants that at the time of giving complaint, P.W.1 did not disclose model number of mobile phone and description of the properties, does not merit acceptance. Merely because P.W.1 did not disclose model of the mobile phone and description of the properties is not fatal to the case of the prosecution. 14. Learned counsel for the appellant/A4 submitted that the material objects shown before the Court are common in nature and P.W.1 and P.W.2 did not file any documents to show that they alone possessed the seized material objects. Even though the same model of the rings and chains are available, it can be identified only by the persons, who used to wear it. It is not necessary that if a person who gives complaint and claims ownership of the properties must produce the documents for purchasing jewels and mobile phone and it is very difficult to produce the documents. So the above argument does not merit acceptance. 15. Learned counsel for the appellants would take me through seizure mahazar under Exs.P7, P9, P11, P13, P15 and submitted that time has been altered in the seizure mahazar, which would show that those were concocted. Considering the arguments along with perusal of documents, it would clearly prove that those documents contain material alteration. 16. 15. Learned counsel for the appellants would take me through seizure mahazar under Exs.P7, P9, P11, P13, P15 and submitted that time has been altered in the seizure mahazar, which would show that those were concocted. Considering the arguments along with perusal of documents, it would clearly prove that those documents contain material alteration. 16. Learned counsel for the appellant/A2 at the time of his arguments, filed written arguments, in which, he stated that there was contradiction between Ex.P1 complaint and Ex.P16 F.I.R and the evidence of P.W.1. Considering the above facts and circumstances of the case, those contradictions are not vital and it would not affect the case of the prosecution. 17. Now this Court has to decide that whether P.W.1 and P.W.2 were assaulted by four known persons? It was proved by way of marking Exs.P17 to P20, Accident register copies and wound certificates. P.W.1 himself stated that at the time of occurrence, one Dhanalakshmi @ Revathi called the accused names, who were hiding in the bushes and on that basis, he stated in the complaint that four unknown persons viz., Babu, Kumar, Aru, Muthupandi and he did not give alias names of the accused in his complaint. But in Ex.P16 F.I.R., A2 and A4 were mentioned in their alias names, (i.e.) A2/Kumar @ Kumaresan and A4/Krishnan @ Muthupandi. Admittedly, F.I.R. reached the Court at 9.30 a.m. and the accused were only arrested after 11.00 a.m. In such circumstances, there was no explanation offered by the prosecution that as to how they got the alias names of A2 and A4. A suggestion was also posed to P.W.7, who registered F.I.R., when A4/Muthupandi was laid down in the railway station, prior to the incident, he was taken to police station, on the instruction of higher official, a false case has been foisted against him, but it was denied by him. 18. The above facts would prove that alias names of A2 and A4/appellants were mentioned in the F.I.R., because they were already arrested and kept in the custody before the commission of the offence. Since they were in the custody of the police, at the time of registering F.I.R., their alias names have been mentioned. In such circumstances, the prosecution has miserably failed to prove that A2 and A4/appellants are guilty for the offence under Sections 394 and 395 IPC beyond reasonable doubt. Since they were in the custody of the police, at the time of registering F.I.R., their alias names have been mentioned. In such circumstances, the prosecution has miserably failed to prove that A2 and A4/appellants are guilty for the offence under Sections 394 and 395 IPC beyond reasonable doubt. So this Court has given benefit of doubt in favour of A2 and A4/appellants herein and acquitted from the charges levelled against them. Hence, the judgment of conviction and sentence passed by the trial Court is unsustainable in law and it is hereby set aside. 19. In fine, (i) Criminal Appeals are allowed. (ii) Judgment of conviction and sentence passed by the trial Court under Sections 394 and 395 IPC, is hereby set aside. (iii) A2/Kumar @ Kumaresan and A4/Krishnan @ Muthupandi, are acquitted from the charges under Sections 394 and 395 IPC. (iv) Bail bond, if any executed by the appellants shall stand cancelled. (v) Fine amount, if any paid by the appellants is ordered to be refunded to them.