JUDGMENT : P.R. Shivakumar, J. Five persons were charge-sheeted in Crime No. 215/1998 registered on the file of Cumbum North Police Station for offences punishable under Sections 397 and 506(ii) IPC. The case was taken on file by the committal Magistrate, namely Judicial Magistrate, Utthamapalayam as P.R.C.No.22/1999 and following the committal procedure, the case was committed to the Court of Session, Madurai. The same was taken on file as S.C.No.375/1999 by the Principal Sessions Judge, Madurai and made over to the Additional Sessions Judge, Fast Track Court No.4, Madurai @ Periyakulam for trial and disposal according to law. After trial, the learned trial Judge held all the five accused to be guilty of offences under Sections 392 and 397 IPC, convicted each one of the accused with 12 years rigorous imprisonment and imposed a fine of Rs.5,000/- with a default sentence of one year simple imprisonment for the offence under Section 392 IPC and a punishment of rigorous imprisonment for seven years for the offence under Section 397 IPC. 2. Aggrieved by and challenging the judgment of the trial court dated 10.11.2005 in respect of conviction as well as sentence, all the accused have come forward with these criminal appeals under Section 374(2) Cr.P.C. Mariappan (A1) and Rajangam (A2) have preferred Crl.A.(MD) No.254/2006; Chelladurai (A3) has preferred Crl.A.(MD) No.271/2006; Mani @ Manikandan (A4) has preferred Crl.A.(MD) No.583/2005; and Ramesh (A5) has preferred Crl.A.(MD) No.582/2005. Since all the appeals have arisen out of one and the same judgment pronounced in one and the same Sessions Case, all the four appeals were clubbed together and they were heard jointly and are being disposed of by a common judgment. Since the serial numbers of the appellants do not correspond to the ranks of the accused in seriatum, the appellants shall be referred to as Accused 1 to 5 respectively in accordance with their ranks in the trial court and at appropriate places, if necessary, their ranks in the appeals shall also be indicated. 3. The case of the prosecution, in brief, as discerned from the evidence adduced on the side of the prosecution, is as follows: (i) PW1 - Manokaran, who was working under his uncle as an Accountant in his Grapes business, as usual took the grapes load to Kerala in a Mitsubishi van bearing Regn. No.TN-60 A-0343, supplied the grapes to the traders there, collected a sum of Rs. No.TN-60 A-0343, supplied the grapes to the traders there, collected a sum of Rs. 1,87,500/- on Saturday 26.04.1998 and started his return journey in the same van at 19.00 Hrs. from Alwaye. PW2 - Idhayakani was the driver of the said vehicle. PW3-Ganesan was the conductor of the vehicle. When the van was approaching towards Narayana Devan Patti viz Cumbum Mettu at about 1.00 Hrs. on 26.04.1998, they came across a road block made with heavy stones at about 6 kms from Cumbum. When the vehicle was slowed down, a few stones were pelted on the van from its left side and the front windscreen and head lamp got damaged. By the time PW1 got down from the vehicle, a group of 10 persons with a face mask of black clothes, armed with bill-hook, knife and rod, threatened PW1 and PW2 to hand over the money they had. Out of the said unidentified assailants, who were 10 in number, one who was armed with a knife, stabbed on the left shoulder of PW1 and caused injury, robbed his watch and then robbed PWs.1 and 2 of a sum of Rs. 1,85,000/- along with a leather bag in which it was kept. (ii) After the robbery on PWs.1 and 2 was over, a van bearing Regn.No.KL-05 E-2599 came from Cumbum and at the same time a lorry bearing Regn. No.TN-59 Z-3589 came in the opposite direction. On seeing those vehicles, the assailants got themselves divided into two groups. One group robbed a sum of Rs.3,000/- and a watch from the driver of the van bearing Regn. No.KL-5 E-2599, whereas the other group robbed a watch from the driver of the lorry bearing Regn. No.TN-59-Z-3589. PW4 - Easwaran was the driver in charge of the van bearing Regn.No.KL-5-E-2599. When the assailants were in the process of committing robbery on the drivers of the van bearing Regn.No.KL-5-E-2599 and lorry bearing Regn.No.TN-59-Z-3589, PW1 escaped from the place in the shadow of darkness, reached the check-Post and informed the persons found in the Check-Post of the occurrence. They advised him to go to Cumbum North Police Station and lodge a complaint. He boarded a van that came there and reached Cumbum North Police Station. (iii) An oral complaint was given, which was reduced into writing. Such a complaint of PW1 which was reduced to writing and signed by him is Ex.P1. They advised him to go to Cumbum North Police Station and lodge a complaint. He boarded a van that came there and reached Cumbum North Police Station. (iii) An oral complaint was given, which was reduced into writing. Such a complaint of PW1 which was reduced to writing and signed by him is Ex.P1. Thereafter he went to the Government Hospital, Cumbum for treatment. PW4-Easwaran, who was the driver of the vehicle bearing Regn. No.KL-5 E-2599 also went to Cumbum North Police Station and gave information to the police. PW9-Dr.Sakthivel, Senior Civil Surgeon at Government Hospital, Cumbum examined PW1 at 12.45 Hrs. on 26.04.1998 and treated him for two simple injuries and issued Ex.P13 - Wound Certificate. Similarly, PW2-Idhayakani was examined and given treatment by PW9-Dr.Sakthivel for simple injuries. The wound certificate issued by PW9 to PW2 is Ex.P14. 4. Based on Ex.P1-complaint, PW11-Immanuel Rajkumar, the then Inspector of Police, Cumbum North Police Station registered a case in Crime No.215/1998 on the file of the said police station for an offence under Section 397 IPC against unnamed persons. All the three motor vehicles were inspected by PW10-Sivakumar, Motor Vehicle Inspector, who found no mechanical defect in those vehicles. He issued Exs.P15 to P17 - Motor Vehicle Inspection Reports opining that the accident did not take place due to any mechanical defect. 5. The initial investigation of the case was done by one Subramaniam, Inspector of Police. On receipt of the copy of the first information report, he went to the place of occurrence and prepared Ex.P25-Observation Mahazar. He also seized M.O.7 and M.O.8 - Big size stones and M.O.9 (series) - two small stones and also M.O.10, the broken glass pieces and sent them to the Judicial Magistrate, Utthamapalayam under Ex.P27. He also prepared Ex.P26-rough sketch. As the said Inspector Subramaniam passed away, the investigation was taken over by his successor Rajendran. The said Rajendran arrested the first accused Rajangam on 27.03.1999 at Manjalaru in the presence of Devadhanapatti VAO Thangaraj and Village Assistant Azhagarsamy (PW8), recorded the confession statement of the first accused and recovered M.O.11 - Titan watch under Ex.P28 - Seizure Mahazar on the basis of the information furnished by the first accused in Ex.P29, the admissible part of his statement. 6. Subsequently, PW14-Thiru. Vellaichamy, Inspector of Police took up the further investigation of the case. PW12 - Thiru. 6. Subsequently, PW14-Thiru. Vellaichamy, Inspector of Police took up the further investigation of the case. PW12 - Thiru. Singaraj, while he was working as Sub-Inspector of Police (Crimes), Cumbum North Police Station, took up the investigation of the case on 25.03.1999, arrested the 4th accused Mani @ Manikandan at 6.00 p.m on the said date in the presence of witnesses Suriyan and Singaraja (PW5), recorded his confession statement and based on Ex.P19, the admissible portion of the confession, recovered MO1 (series) consisting of 80 x 500 rupee notes from the 4th accused under Ex.P20-Seizure Mahazar. He also arrested Ramesh (A5) at Gem Hollow Bridge at Cumbum- Utthamapalayam Road in the presence of the above said witnesses and recovered M.O.2-Bracelet on the basis of Ex.P21-admissible portion of his confession statement under Ex.P22- Seizure Mahazar. He also recorded the statement of the witnesses in whose presence the arrest and recoveries were made. 7. PW13, who was the then Inspector of Police, Rayappanpatti Circle, during the investigation of a case registered as Crime No.3/1999 on the file of Kumuli Police Station, arrested the first accused Mariappan in the presence of the witnesses Asokan (PW6) and Chandrasekaran at 10.30 a.m on 25.03.1999 near Kojendra Odai on Cumbum - Oothukadu Road, recorded his confession statement, recovered M.O.3- 3-1/2 sovereign gold chain concerned with the other case and one H.M.T. Watch (M.O. 4) and a Citizen watch (M.O.5) concerned in this case under Ex.P23-Mahazar.-He also recovered a gold chain (M.O.6) weighing four sovereigns with a dollar having an inscription 'S' from the house of the first accused under Ex.P24 - Seizure Mahazar and sent the material objects to the jurisdictional Magistrate. 8. PW14, who was the successor to the Inspector Subramaniam (dead) took up the further investigation of the case on 09.05.1999, examined PW9-Dr. Sakthivel, PW10 - Sivakumar (Motor Vehicle Inspector), PW11-Immanuel Rajkumar, the Sub Inspector of Police, completed the investigation and submitted a final report on 20.05.1999 alleging commission of offences punishable under Sections 397 and 506(ii) IPC by the accused persons on the file of Utthamapalayam Judicial Magistrate. The case was taken on file by the Judicial Magistrate, Utthamapalayam as P.R.C.No.22/1999 and the said Judicial Magistrate committed the case for trial to the Court of Session, Madurai. The case was taken on file by the Judicial Magistrate, Utthamapalayam as P.R.C.No.22/1999 and the said Judicial Magistrate committed the case for trial to the Court of Session, Madurai. The Principal Sessions Judge, Madurai took it on file as S.C.No.375/1999 and made over the same to the Additional Sessions Judge, Fast Track Court No.4, Madurai @ Periyakulam for trial. 9. In order to prove the prosecution case, as many as 14 witnesses were examined as PWs.1 to 14, 29 documents were marked as Exs.P1 to P29 and 11 material objects were marked as M.Os.1 to 11 on the side of the prosecution. After recording of evidence adduced on the side of the prosecution was over, the accused were questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating materials found in the evidence adduced on the side of the prosecution. The accused denied such incriminating evidence to be false and reiterated their stand that they were wrongly implicated. Two witnesses were examined as DWs.1 and 2 on the side of the accused. No document was produced and no material object was produced on their side. 10. The learned trial Judge, after hearing the arguments advanced on both sides, considered the evidence in the light of the arguments advanced and upon such consideration came to the conclusion that the accused 1 to 5 were found to be guilty of offences punishable under Sections 392 and 397 IPC, convicted them for the said offences and imposed the punishments as indicated supra. It is as against the said judgment, present criminal appeals have been filed by them in respect of conviction and sentence. 11. The arguments advanced by Mr. V. Kathirvel, learned senior counsel for Mr.K.Prabhu, counsel on record for the appellant in Crl.A.(MD) No.582/2005, by Mr. S. Kanagarajan, learned counsel on record for the appellant in Crl.A.(MD) No. 583/2005, by Mr. M. Patturajan, learned counsel on record for the appellants in Crl.A.(MD) No.254/2006 and Mr. S. Manoharan, learned counsel on record for the appellant in Crl.A.(MD) No. 271/2006 and by Mr.T.Mohan, learned Additional Public Prosecutor for the respondent in all the criminal appeals were heard. The materials available on record were also taken into consideration. 12. M. Patturajan, learned counsel on record for the appellants in Crl.A.(MD) No.254/2006 and Mr. S. Manoharan, learned counsel on record for the appellant in Crl.A.(MD) No. 271/2006 and by Mr.T.Mohan, learned Additional Public Prosecutor for the respondent in all the criminal appeals were heard. The materials available on record were also taken into consideration. 12. The first and foremost contention of the learned senior counsel appearing for the accused is that the judgment of the court below will make it clear that the learned trial Judge proceeded with predetermination to convict the accused persons, despite the fact that there is no identification of the accused persons by the prosecution witnesses before the trial court. Learned Senior Counsel also pointed out the fact that though two charges were framed, one for offence under Section 397 IPC and the other for the offence under Section 506(ii) IPC, the learned trial Judge failed to advert to the second charge and at the same time chose to convict the accused and impose a separate punishment on them for an offence under Section 392 IPC, which is a specie of a graver offence punishable under Section 397 IPC. Learned Senior Counsel also pointed out the material discrepancies in awarding separate punishment under Sections 392 IPC and 397 IPC. Besides pointing out those discrepancies to demonstrate that the learned trial Judge, without proper appreciation of evidence, rendered a perverse finding that the accused were found to be guilty of the offences under Sections 392 IPC and 397 IPC, learned senior counsel contended that the said finding would reveal a predetermination rather than impartial and unbiased approach. 13. The submissions made by the learned Additional Public Prosecutor in answer to the above said contentions raised by the learned senior counsel for the accused were also heard and taken into consideration. 14. The case of the prosecution is that on 26.04.1998 at about 1.00 Hrs. there was a highway robbery committed by 10 unknown persons on the occupants of the vehicles, namely (i) a Mitsubishi van bearing Regn. No.TN-60 A-0343, (ii) a van bearing Regn.No.KL-05 E-2599 came from Cumbum and (iii) a lorry bearing Regn. No.TN-59 Z-3589. 14. The case of the prosecution is that on 26.04.1998 at about 1.00 Hrs. there was a highway robbery committed by 10 unknown persons on the occupants of the vehicles, namely (i) a Mitsubishi van bearing Regn. No.TN-60 A-0343, (ii) a van bearing Regn.No.KL-05 E-2599 came from Cumbum and (iii) a lorry bearing Regn. No.TN-59 Z-3589. The fact that such highway robbery was committed by 10 unknown persons alone was spoken to by the prosecution witnesses and in fact the eyewitness to the occurrence, namely PWs.1 to 4 were not cross examined on behalf of the accused in respect of their narration of the occurrence. However, none of the above said witnesses chose to identify any one of the accused persons as the members of the group who committed the highway robbery, either during the course of investigation or before the trial court. When the eyewitnesses have failed to identify any of the accused as the assailants who committed robbery, the prosecution case solely rests on circumstantial evidence, namely evidence regarding arrest, confession and recovery. 15. The first accused Mariappan is said to have been arrested by PW13-Mr.Stanley, the then Inspector of Police, Rayappanpatti Circle. It is said that while he was investigating a case registered in Crime No.3/1999 for an offence under Section 397 IPC on the file of Kumuli Police Station, he arrested the first accused Mariappan on 25.03.1999 at 10.30 a.m on the Cumbum-Oothukadu Road near Kojendra Odai in the presence of Asokan (PW6) and one Chandrasekaran. Out of the two witnesses, Asokan alone was examined as PW6. He did not support the case of the prosecution. On the other hand, it is his testimony that no confession statement of the first accused was recorded in his presence and that he signed the alleged confession statement as requested by the police. Though he was cross examined by the prosecution treating him hostile, nothing fruitful to the prosecution version came to be elicited from him. When one of the two witnesses, in whose presence the confession statement was allegedly recorded, failed to support the case of the prosecution, the prosecution could have examined the other witness also. Though he was cross examined by the prosecution treating him hostile, nothing fruitful to the prosecution version came to be elicited from him. When one of the two witnesses, in whose presence the confession statement was allegedly recorded, failed to support the case of the prosecution, the prosecution could have examined the other witness also. The failure to examine the other witness, as rightly contended by the learned senior counsel, would pave way for an inference that the said witness also would not support the prosecution version and the same was the reason why prosecution failed to call him as a witness. 16. Though PW1 would have stated that his wrist watch had been taken from him by the assailants, he describes the wrist watch to be a Titan classic gold wrist watch. He has not identified any of the wrist watches produced as material objects by the prosecution as his wrist watch. Three wrist watches have been produced as MOs.4, 5 and 11. MOs.4 and 5 are not Titan wrist watches. MO.11 alone is Titan watch. The same was not identified by PW1. 17. Karur Chelladurai (A3) was allegedly arrested on 23.06.1999 at 6.30 Hrs. near Vattara Palam on the K.K. Patti - Anaipatti in the presence of the same witnesses. M.O.6- Four sovereign chain was recovered from him under Ex.P24-Mahazar. Similarly PW2-Idhayakani has not identified any of the accused persons as one of the assailants and he has not identified any material object as the property robbed from them. Similar is the testimony of PW3-Ganesan and PW4-Easwaran. The 4th accused Mani @ Manikandan is said to have been arrested at 6.00 Hrs. on 25.03.1999 by PW12-Thiru.Singaraja, Sub Inspector of Police (Crimes), Cumbum North Police Station. It is his statement that as per the instructions, he conducted investigation, but there is nothing to show that the investigation of the case in Crime No. 215/1998 was entrusted with him. It is the testimony of PW12 that the 4th accused Mani @ Manikandan was arrested, his statement was recorded and MO.1 series Currency notes, bracelet and chain were recovered from him in the presence of witnesses Suriyan and Singaraja (PW5). It is also pertinent to note that PW5-Singaraja also did not support the case of the prosecution. He also stated that he did not know any of the accused persons. It is also pertinent to note that PW5-Singaraja also did not support the case of the prosecution. He also stated that he did not know any of the accused persons. Though he was treated hostile and cross examined by the prosecution, nothing useful to the prosecution could be elicited from him. When he failed to support the case of the prosecution regarding the arrest of the fourth accused and recovery made from him, the other witness Suriyan could have been examined. But, for the reasons best known to the prosecution, he was not examined as a witness. 18. The fifth accused Ramesh is also said to have been arrested by PW12 in the presence of the same witnesses and MO.2- Bracelet was allegedly recovered from him. The said version of PW12 was also not supported by PW5. All the observations made in respect of the alleged arrest of the fourth accused and recovery made from him will apply to the alleged arrest of fifth accused and alleged recoveries made from him. 19. One Rajendran, who succeeded Inspector Subramaniam (since deceased) is said to have arrested Rajangam on 27.03.1999 in the presence of Thangaraj, Village Administrative Officer and Azhagarsamy, Village Assistant. The said Investigating Officer Rajendran has not been examined. On the other hand, PW14 alone spoke about the alleged arrest of Rajangam and recovery made from him. MO.11-Titan watch is said to have been recovered by Rajendran under Ex.P28-Mahazar. Out of the two witnesses, Azhagarsamy alone was examined as PW8. Though he seems to have supported the prosecution case regarding the confession statement of A2 and recovery of a wrist watch, he was not able to identify any of the wrist watches as the wrist watch recovered from the said accused. During cross examination, he revealed the fact that before he reached the place, the police were in the process of examining the second accused. In his evidence he has also pleaded ignorance as to in how many cases the second accused gave confession statements. He also could not recollect the contents of the confession statement. 20. It is the evidence of PWs.1 to 3 that the assailants had tied their face with black cloth at the time of occurrence. The same would make it clear that they were not in a position to identify the accused. He also could not recollect the contents of the confession statement. 20. It is the evidence of PWs.1 to 3 that the assailants had tied their face with black cloth at the time of occurrence. The same would make it clear that they were not in a position to identify the accused. However in Ex.P1-complaint, it has been stated that the complainant could identify the assailants if he would see them again. The relevant portion in vernacular found in Ex.P1 reads as follows: xxxx It is quite contradictory to earlier statement found in Ex.P1 itself that the assailants had closed their face with black clothes. Still PW1 had made a statement in the complaint that he could identify them if he would see him. The police ought to have arranged for an identification parade. As no such identification parade was conducted and the accused were not identified by any of the eyewitnesses, as rightly contended by the learned senior counsel for the accused, there is a wide gap in the case of the prosecution in linking the accused with the occurrence. The nexus between the occurrence and the accused have not been established by reliable evidence. Still the learned trial Judge seems to have chosen to render a finding to the effect that the case of the prosecution that the accused were the persons, who committed robbery in the occurrence, stands substantiated beyond reasonable doubt. The said finding, as rightly contended by the learned senior counsel for the accused (appellants), is no doubt infirm and defective. The learned trial Judge seems to have forgotten the fact that the burden is on the prosecution to prove the guilt of the accused to the hilt, that is beyond reasonable doubt. 21. The evidence of DW1, wife of the accused and that of DW2, mother of the third accused Chelladurai will make the defence case probable that the accused persons were wrongly implicated in the case. According to the evidence of DW1, her husband (first accused) was taken by the police at night hours to the police station for enquiry by PW3-Thiru.Stanley and thereafter he did not return. According to the evidence of DW1, her husband (first accused) was taken by the police at night hours to the police station for enquiry by PW3-Thiru.Stanley and thereafter he did not return. Similarly, according to the evidence of DW2, the police visited her house 3 to 4 times in search of her son and she herself took him to the police station, whereupon they sent her back detaining the third accused informing her that they would send him after examining him and that when she went to the police station on the next day, she was informed that he was booked in a criminal case. Both of them have made it clear that no recovery was made from their respective houses. 22. This court is able to find out many disturbing factors and discrepancies in the judgment of the trial court. The accused persons were charge-sheeted for offences under Sections 397 and 506(ii) IPC. The trial court also framed charges for offences punishable under the said sections. The first charge has been framed for an offence under Section 397 IPC, whereas the second charge came to be framed for an offence under Section 506(ii) IPC. The learned trial Judge did not advert to the second charge, namely the charge framed under Section 506(ii) IPC in the discussion portion of the judgment. While reciting the provisions under which they were charge-sheeted by the police, the learned trial Judge has committed by referring to Section 507(ii) instead of Section 506(ii) IPC as the second charge. 23. In paragraph 4 of the judgment which deals with the framing of the charges, the learned trial Judge has not chosen to state what were the charges framed against the accused. On the other hand, a general statement was made to the effect that charges were framed, accused were questioned about the charges and the accused denied the charges and pleaded for trial. In paragraph 7, the provision has been overwritten to make it ambiguous and it is not clear as to whether it is Section 506(ii) or 507(ii) IPC. In the discussion and conclusion running from paragraphs 8 to 26, the second charge has not been adverted to. In paragraph 7, the provision has been overwritten to make it ambiguous and it is not clear as to whether it is Section 506(ii) or 507(ii) IPC. In the discussion and conclusion running from paragraphs 8 to 26, the second charge has not been adverted to. Even then, in view of the above finding that the prosecution failed to connect the accused with the occurrence this court has to necessarily come to a conclusion that the second charge, namely the charge for an offence under Section 506(ii) IPC has also not been proved by the prosecution beyond reasonable doubt and that the accused are entitled to be acquitted of the said offence. 24. So far as the first charge is concerned, Section 392 IPC prescribes a punishment for robbery and the punishment prescribed therein is rigorous imprisonment for a term which may extend to 10 years and also fine and in case the robbery is committed on the Highway between sunset and sunrise the imprisonment may extend to 14 years. Section 397 does not constitute a separate offence and it prescribes a minimum punishment of seven years imprisonment. Section 397 reads as follows: "397. Robbery, or dacoity, with attempt to cause death or grievous hurt - If, at the time of committing robbery or dacoity, the of fender uses any deadly weapon, or causes grievous hurt to any person, or at tempts to cause death or grievous hurt to any person, the imprisonment with which such of fender shall be punished shall not be less than seven years." Hence punishment could be awarded either for the offence under Section 392 r/w Section 397 IPC or Section 395 r/w Section 397 IPC. It is a case of dacoity allegedly committed by more than five persons and hurt was allegedly caused in committing such offence. Without considering the said fact that section 397 IPC is not a independent penal provision, the learned trial Judge seems to have imposed separate punishments for an offence under Section 392 IPC and an offence under Section 397 IPC. That itself will show the improper approach made by the learned trial Judge and even non-application of mind to the penal provisions. That itself will show the improper approach made by the learned trial Judge and even non-application of mind to the penal provisions. The above said observation is made to strengthen the conclusion that even though the prosecution miserably failed to prove its case that the accused were the persons who committed highway robbery in the alleged occurrence, learned trial Judge, with a predetermination, blind-foldedly rendered an erroneous finding that the accused were proved to be guilty of the offences under Sections 397 and 506(ii) IPC. 25. This court, on re-appreciation of the evidence, comes to the conclusion that there is dearth of reliable evidence on the side of the prosecution to link the accused with the occurrence and hence they have not been proved to be guilty of either of the offences for which they were prosecuted and punished by the trial court. The trial court committed a grave error in holding the accused guilty and punishing them for offences under Sections 392 and 397 IPC and also by imposing separate punishments under both the penal provisions. Viewed from any angle, the conviction recorded and the sentence imposed by the trial court cannot be sustained and the judgment of the trial court deserves to be reversed and set aside, both in respect of conviction as well as sentence. The accused are entitled to be set at liberty as the prosecution has failed to prove any of the charges framed against them or that they committed even a lesser offence, beyond reasonable doubt. 26. In the result, all the criminal appeals are allowed. The judgment of the trial court dated 10.11.2005 made in S.C. No. 375 of 1999 in respect of conviction and sentence against the appellants (accused) is set aside. The appellants are acquitted of the charges with which they stood charged and they are set at liberty.