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2018 DIGILAW 3352 (MAD)

Alagu @ Arumugam v. Inspector of Police (Crime)

2018-09-27

N.SATHISH KUMAR

body2018
JUDGMENT N. SATHISH KUMAR, J. 1. These criminal appeals have been filed by the appellants/accused Nos.1 to 3 as against the conviction and sentence, dated 15.11.2008 passed in S.C.No.115 of 2007 by the Additional District and Sessions Judge (Fast Track Court No.II), Trichirapalli. 2. The brief case of the prosecution is as follows: (i) P.W.1, Jeyakumar is an Indian Bank employee. On 12.11.2006, while he was awaiting for bus at Kumaran Nagar bus stand at 04.30 pm., the accused persons came in a motor cycle bearing Registration No.TN-45-X 4000. A1 drove the motor cycle, A2 snatched the chain of PW1 and A3 threatened him at the knife point. PW1 resisted the same and PW2 and Others who were present in the same vicinity, caught hold the accused and handed over them along with knife in the police station and PW1 lodged a report, Ex.P.1. (ii) Based on the above report, a case was registered in Crime No.904 of 2006 for the offence under Section 392 IPC. Ex.P3 is the First Information Report. PW5, the Investigating Officer took up the case for investigation, went to the place of occurrence, prepared observation mahazar (Ex.P.2) in the presence of PW3 and rough sketch (Ex.P.4), and recovered M.O.1, Chian, M.O.2, Knife and M.O.3, motor cycle under Form 95 (Ex.P5) and remanded the accused. After completing investigation, he filed final report against the accused. (iv) Based on the above materials, the trial Court framed charges for the offence under Sections 392 and 392 r/w 397 IPC against all the accused. The accused denied the same. In order to prove the charges, on the side of the prosecution, P.Ws.1 to 5 were examined and Exs.P.1 to P.5 and M.Os.1 to 3 were marked. (v) When the Trial Court examined the accused under Section 313 of the Code of Criminal Procedure in respect of the incriminating evidences available against them, they denied their complicity in the crime and pleaded innocence. On the side of the accused, DWs.1 to 3 have been examined and no documents have been marked on their side. (vi) The trial Court, after considering the oral and documentary evidence, has found all the accused guilty under Section 392 r/w 397 and accordingly, convicted them under Section 392 r/w 397 IPC and sentenced to undergo rigorous imprisonment for seven years and imposed a fine of Rs. (vi) The trial Court, after considering the oral and documentary evidence, has found all the accused guilty under Section 392 r/w 397 and accordingly, convicted them under Section 392 r/w 397 IPC and sentenced to undergo rigorous imprisonment for seven years and imposed a fine of Rs. 1,000/- each, in default, to undergo rigorous imprisonment for three months. Challenging the said conviction and sentence, the appellants/Accused Nos.1 to 3 have come up with these appeals. 3. Heard the learned counsel appearing for the appellants and the learned Additional Public Prosecutor appearing for the State. 4. The learned counsel appearing for the appellants would submit that the evidence of the prosecution witnesses is highly contrary to the First Information Report and in fact, there was no theft and at the time of occurrence, only an attempt was made by the accused and therefore, offence under Section 397 IPC will not attract. Further, there is no material whatsoever available on record to prove the charges under Section 392 r/w 397 IPC. Hence, he prayed for acquittal of the accused. 5. Per contra, the learned Additional Public Prosecutor appearing for the respondent would submit that P.Ws.1 and 2, the eye witnesses caught hold the accused and they have also clearly identified the accused. Therefore, the judgment of the trial Court does not require any interference. 6. In the light of the above submissions, now, it has to be analysed, whether the prosecution has proved the guilt of the accused beyond all reasonable doubt? 7. Law was set in motion on the basis of Ex.P1, based on which, FIR was registered on the same day. PW1 is a bank employee. In his evidence, he has clearly stated that while he was waiting for bus at Kumaran Nagar bus stop, the accused came in a motor cycle. A1 drove the vehicle, A2 snatched the chain and A3 put him on fear by showing knife. In the meanwhile, PW1 resisted them, PW2 came there to rescue PW1 and the persons who assembled there also joined and caught hold the accused and handed over them in police station. 8. The entire evidence of PWs.1 and 2 was carefully scanned and there was no motive whatsoever established for false implication of the accused. PW1, is a bank employe. He has no motive against the accused and his evidence is nature and it is not suffered from any infirmity. 8. The entire evidence of PWs.1 and 2 was carefully scanned and there was no motive whatsoever established for false implication of the accused. PW1, is a bank employe. He has no motive against the accused and his evidence is nature and it is not suffered from any infirmity. PW2 was present in the same vicinity and on hearing the sound of PW1, he came to the place of occurrence to rescue PW1. Both PWs.1 and 2, along with others caught hold the accused and handed over them to police station and FIR was also registered on the same day without much delay. The material objects viz. M.Os.1 to 3 were handed over to the police station on the same day. PW1 identified all the accused during trial. It is to be noted that PWs.1 and 2 have caught hold the accused and took them to police station. Therefore, the face of the accused would be embedded in the mind of PWs.1 and 2 and thus identification of the accused during trial is quite natural. Merely because identification parade has not been conducted, that cannot be a ground to disbelieve the evidence of PWs.1 and 2. From their evidence, it is clearly established the fact that all the accused came in a bike and tried to snatch the chain M.O.1 from PW1. Though the prosecution proceeded as if theft has occurred, the entire scanning of evidence of PW1, particularly in the cross examination, would clearly show that only A2 has tried to snatch the chain and due to that, all the accused were caught hold by PW1 and Others. The above aspect clearly indicates that the property, sought to be stolen is not moved out of the custody of PW1. Theft is not completed in this case. From the admission of PW1 in his cross examination makes it clear that only there is an attempt to snatch the chain and theft is not completed. Therefore, the act of the accused would fall only under Section 393 IPC, only attempt to commit robbery and not under Section 397 IPC. Therefore, the finding of the trial Court that the accused are liable to be punished under Section 397 warrants interference. 9. Admittedly, only one accused viz., A3 alleged to have used the knife. Therefore, all the accused cannot be brought under Section 397 IPC. Therefore, the finding of the trial Court that the accused are liable to be punished under Section 397 warrants interference. 9. Admittedly, only one accused viz., A3 alleged to have used the knife. Therefore, all the accused cannot be brought under Section 397 IPC. The entire evidence of PW1 indicates that there was an attempt only to commit theft and therefore, the act of the accused clearly falls within the ambit of Section 393 IPC. Hence, this Court is of the view that though no separate charge is framed under Section 393 IPC, since charges under Section 392 r/w 397 IPC have been framed against the accused, no prejudice would be caused in moulding the conviction under Section 393 IPC. 10. In the result, these Criminal Appeals are allowed in part. The conviction and sentence passed by the trial Court in S.C.No.115 of 2007 under Section 392 r/w 397 IPC against the appellants/accused Nos.1 to 3 are set aside and instead, the appellants/accused Nos.1 to 3 are convicted for the offence under Section 393 IPC and sentenced to undergo 16 months rigorous imprisonment. 11. At this juncture, it is represented on the side of the appellants that the sentence imposed by this Court has already been undergone by the appellants. If it is so, the same shall be set off, on proper verification. The appellants are ordered to be set at liberty and bail bonds, if any, executed by them shall stand cancelled.