JUDGMENT : The appellant/A2 has filed this Criminal Appeal, challenging the judgment, dated 24.04.2007, passed in S.C.No.8 of 2006 on the file of the learned Additional Sessions Judge, Fast Track Court No.1, Thiruchirappalli, in and by which, the appellant/A2 was convicted for offence under Section 397 of IPC and sentenced to undergo 7 years Rigorous Imprisonment and fine of Rs.2,000/- in default, one year Rigorous Imprisonment. Since the maximum sentence has been imposed for the offence under Section 397 IPC, no separate sentence has been imposed for the offences punishable under Sections 459 and 394 IPC. 2. The brief facts of the prosecution case are as follows: (i) P.W.1, Subramanian is a resident of 7th Cross Ram Nagar, Thillai Nagar, Trichy. P.W.2, Meenakshi is the wife of P.W.1, P.W.3, Adhiyaman is the neighbour of P.Ws.1 and 2. P.W.4, Mallika is the daughter of P.Ws.1 and 2. P.W.6 Suresh was the owner of Karthick Jewellery, Trichy big bazar Street. P.W.7, Rameshlal is a broker for two wheelers. P.W.8, Moharenkan is a owner of the jewellery shop in Trichy Thaiyalkara Street. P.W.9, Sebastian is a resident of Trichy Uraiyur. (ii) On 22.06.2005, at about 7.30 a.m., P.W.1 was in his house and P.W.2 went for walking. Between 7.30 a.m., to 7.40 a.m., P.W.1 was plucking the flowers in his house within the compound. At that time, the front and back door was kept open and he saw two persons entering into the house. When P.W.1 entered into his house, both persons locked the front and back door of the house, caught hold of him and tied his hand with red colour rope and he was taken to the bed room. Thereafter, they have threatened and asked him to give the bureau key and enquired about with cloth and he was attacked with weapon. So he got bleeding injuries. At that time, calling bell was pressed by P.W.2. They also attacked his wife (P.W.2) Meenakshi, when she returned to home after her morning walk and tied her with rope. She was also taken to the bed room. Then, the accused had snatched the jewels from P.W.2 and ran away. P.W.2 with great difficulty went outside of the house and informed P.W.3 and in turn informed her daughter P.W.4, Mallika. Thereafter, the victims were taken to hospital. (iii) P.W.13, Doctor Sugumar was the Assistant Surgeon in Trichy Annal Ganthi Memorial Hospital. Then, the accused had snatched the jewels from P.W.2 and ran away. P.W.2 with great difficulty went outside of the house and informed P.W.3 and in turn informed her daughter P.W.4, Mallika. Thereafter, the victims were taken to hospital. (iii) P.W.13, Doctor Sugumar was the Assistant Surgeon in Trichy Annal Ganthi Memorial Hospital. On 22.06.2005 he treated P.W.1 and gave the wound certificate Ex.P.9 to him. He found the following injuries:- “1. Incised wound 7cm x ½ cm below (R) eye (depth not probed). 2. Contusion around (R) upper of lower lids side of forehead 5 x 5 cm. 3. Punctured wound ½ cm x ½ cm in (R) scalp x depth not probed. 4. Incised wound (L) scalp 7 x ½ cm x depth not probed. 5. Contusion in (R) forehead (R) of scalp. 6. Loss of teeth in upper jaw. 7. Incised wound 3 x ½ cm x depth not probed below (R) shoulder joint. 8. Incised wound below (R) elbow 3 x ½ cm x Bone deep. 9. Incised wound above (R) wrist.” (iv) On the same day at about 9.35 a.m., P.W.13 examined P.W.2 and gave the wound certificate Ex.P.10. He found the following injuries:- “1. Incised wound in (L) upper lip, 2 x ½ cm x depth not probed. 2. Contusion of upper lip 2 x 2 cm. 3. Los of teeth in both jaws. 4. Incised wound in the posterior aspect of tongue 1 x ½ cm x depth not probed. 5. Incised wound in (R) little finger 1 x ½ cm x bone deep. 6. Contusion below (R) wrist 5 x 2 cm. 7. Incised wound in (L) middle finger 1 x ½ cm x bone deep.” (v) Then both of them left the hospital and got admitted in the R.J. Hospital. P.W.10, Doctor Rajkumar gave treatment to P.W.1. Ex.P.4 is the accident register. He found the following injuries:- “1.Incised wound 7cm x ½ cm below (R) eye. 2. Contusion around two eyes. 3. Stab wound ½ cm x ½ cm in (R) scalp. 4. Incised wound (L) scalp 7 x ½ cm. 5. Contusion in (R) forehead (R) of scalp. 6. Loss of teeth in upper jaw. 7. Incised wound 3 x ½ cm below (R) shoulder joint. 8. Incised wound below (R) elbow 3 x ½ cm x Bone deep. 9. 3. Stab wound ½ cm x ½ cm in (R) scalp. 4. Incised wound (L) scalp 7 x ½ cm. 5. Contusion in (R) forehead (R) of scalp. 6. Loss of teeth in upper jaw. 7. Incised wound 3 x ½ cm below (R) shoulder joint. 8. Incised wound below (R) elbow 3 x ½ cm x Bone deep. 9. Incised wound above (R) wrist.” (vi) P.W.10 also gave the treatment to P.W.2 and gave the accident register Ex.P.5. He found the following injuries:- “1. Incised wound in (L) upper lid, 2 x ½. 2. Contusion of upper lip 2 x 2 cm. 3. Los of teeth in both jaws. 4. Incised would in the posterior aspect of tongue 1 x ½ cm. 5. Incised wound in (R) little finger 1 x ½ cm x bone deep. 6. Contusion below (R) wrist 5 x 2 cm. 7. Incised wound in (L) middle finger 1 x ½ cm x bone deep.” (vii) P.W.12 was the Sub-Inspector of Police at Thillai Nagar Police Station. On 22.06.2005 at about 10.45 a.m., he received the intimation No.1286 of 2005 from the Government Hospital, Trichy and went to the Hospital and recorded the statement of P.W.1. Then at about 11.30 a.m., he returned to the police station and registered a case in Crime No.292 of 2005 for an offence punishable under Section 394 IPC. Thereafter, he prepared the printed copy of FIR, Ex.P.8. Then he sent the FIR to the Court and Higher Officials. (viii) The investigation was took up by P.W.15, the Inspector of Police at Thillai Nagar Police Station. He visited the scene of occurrence and prepared observation mahazar Ex.P.2, in the presence of witnesses Usher and Sathihkumar. Then he prepared a rough sketch under Ex.P.17. Then he received M.Os.10 and 11 Kerchiefs, M.O.12-bloodstained white colour petticoat one number, and one red colour rope in the presence of witnesses Ushen and Sathishkumar under Athatchi Ex.P.3. Then he enquired the witnesses Mallika, Renganathan, Adhiyaman, Anbu, Gurunathan, Krishnaveni and Ramamoorthy and recorded their statements. Thereafter, he recorded the statement of P.W.1 at R.J. Hospital and recovered one bloodstained Lungi (M.O.7) and red rope (M.O.8) in the presence of witnesses Manoharan and Mangaleswaran under Ex.P.18. Then, he recorded the statement of P.W.2 and the witnesses Santhi, Manoharan and Mangaleswaran. Thereafter, he recorded the statement of P.W.1 at R.J. Hospital and recovered one bloodstained Lungi (M.O.7) and red rope (M.O.8) in the presence of witnesses Manoharan and Mangaleswaran under Ex.P.18. Then, he recorded the statement of P.W.2 and the witnesses Santhi, Manoharan and Mangaleswaran. (ix) On 15.07.2005 at about 18.00 p.m., P.W.15 arrested the accused at Trichy Salai Road in front of Vaisali Hospital near Kokinoor Bus Stop. Thereafter, he recorded the confession statement given by the accused in the presence of witnesses Purusothaman and Sebastian. Ex.P.6 is the admissible portion of his confession statement. On the basis of the confession statement given by the accused, a gold ring (M.O.4), a round ring (M.O.5) and one plastic Tappa (M.O.6) were recovered under Athachi Ex.P.7. Then he recovered two bangles (M.O.1) from Trichy Big Bazar Street, Karthick Jewellery under Athatchi Ex.P.19. Then he recovered two sovereign gold ingot (M.O.2) from M.R.Jewellery, under Athachi Ex.P.20 and he recovered 48 gram gold ingot (M.O.3) from Ganthi Market, Thanjavur Road Rameshlal's shop under Athachi Ex.P.21. Then he enquired the mahazar witnesses Purusothaman, Sebastian and recorded their statements. Then he went to Thillai Nagar Police Station along with the accused and the material objects. Then the accused was sent to judicial custody. On 17.07.2005 P.Ws1 and 2 went to the police station and that they have identified the jewels. But they have not able to identify the gold ingots. In the Police Station P.W.15 recorded the statements of P.W.1, P.W.2, Suresh, Mohanarengam and Rameshlal. Then he gave a request Ex.P.11 to the Judicial Magistrate No.V, Trichirappalli to conduct the identification parade. (x) The Judicial Magistrate No.V, Trichirappalli had conducted the identification parade. The accused Albert Sagayaraj was taken to the police custody. He gave the confession statement in the presence of witnesses P.W.11, Abdul Kutthus and P.W.12, Manoharan and registered the confession statement under Ex.P.22. On the basis of the confession statement given by the accused, P.W.15 went to the house of the accused and recovered the jewels. Then, he asked P.Ws.1 and 2 to identify the jewels. The properties were sent to the Court. Then, he enquired the Doctor Sugumar and Rajkumar and recorded their statements. After completing the investigation, he filed a charge sheet under Sections 459, 394 and 397 r/w 34 IPC against the accused. 3. Before the Trial Court, on the side of the prosecution, P.Ws.1 to 15 witnesses were examined. The properties were sent to the Court. Then, he enquired the Doctor Sugumar and Rajkumar and recorded their statements. After completing the investigation, he filed a charge sheet under Sections 459, 394 and 397 r/w 34 IPC against the accused. 3. Before the Trial Court, on the side of the prosecution, P.Ws.1 to 15 witnesses were examined. Exs.P.1 to P.22 were marked and M.Os.1 to 13 were also marked. On the side of the accused, no witness was examined and no exhibit was marked. 4. On consideration of evidence available on record, the learned Additional District and Sessions Judge, (Fast Track Court No.1), Trichy had found the accused guilty for an offence punishable under Section 397 IPC and sentenced him to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.2,000/- and in default, to undergo rigorous imprisonment for a further period of one year. 5. Challenging the judgment of the learned Additional District and Sessions Judge, (Fast Track Court No.1), Trichy, the present Criminal Appeal has been preferred by the appellant/A2. 6. The learned Additional Public Prosecutor submitted that the accused did not complain about the identification parade. So they are the real culprits. He further submitted that A1 had already been acquitted by this Court on 29.08.2007 in Crl.A.(MD).No.276 of 2007. 7.I have perused the materials placed before this Court. 8. P.W.1 in his evidence, admitted that he did not identify the accused in the police station. He deposed as follows: xxxxxxxxxxxxxxxxxxxxx 9. On careful consideration of evidence available on record, it is clear that the identity of the accused was not established and the recovery is not proved by the prosecution in a manner known to law. This court is of the view that as this Court had already acquitted the first accused/A1 by judgment dated 29.08.2007, based on the same footing the present accused viz.,A2 can also be acquitted. 10. In the result, this Criminal Appeal stands allowed. The conviction and sentence imposed by the learned Additional District and Sessions Judge, Fast Track Court No.1, Trichy, in S.C.No.8 of 2006 on 24.04.2007 against the appellant/A2 are set aside. The appellant/A2 is acquitted of all charges. Fine amount, if paid shall be refunded to the appellant / A2. The appellant/A2 shall be released forthwith from the prison, if he is no longer required in connection with any other case. The appellant/A2 is acquitted of all charges. Fine amount, if paid shall be refunded to the appellant / A2. The appellant/A2 shall be released forthwith from the prison, if he is no longer required in connection with any other case. Bail bond shall stand terminated.