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2018 DIGILAW 3648 (MAD)

Sugu @ Sugumaran v. Inspector of Police

2018-10-09

N.SATHISH KUMAR

body2018
JUDGMENT : N. Sathish Kumar, J. Aggrieved over the conviction and sentence imposed on the appellants dated 10.07.2007 made in S.C.No.571 of 2006 on the file of the Additional Sessions Judge, Fast Track Court, No.3, Madurai, the present appeal has been filed. 2. The brief facts of the prosecution are as follows:- P.W.1 and P.W.5 are the employees of the TVS Mills. On 07.07.2003, they were assigned the work of withdrawing a sum of Rs. 1,40,000/- from the Canara Bank to pay salary to the employees. Accordingly, P.W.1 and P.W.5 went to the Canara Bank in P.W.1's two wheeler bearing Registration No.TN-59- Y-9894. After withdrawing the amount, they kept it in a brief case. While they were returning to the mill, A-1 to A-3 waylaid them with aruval. Since the vehicle was attacked by A1 to A3, the vehicle fallen and A-1 to A-3 took away the brief case containing Rs. 1,40,000/-. Thereafter, P.Ws.1 and 2 informed their superiors and P.W.3 who is working as security in the mill. Subsequently, they had informed the same to the Police Station through telephone. Thereafter, Ex.P1/complaint was lodged. P.W.9-Inspector of Police who was in-charge at the relevant point of time had registered the crime in Crime No.324 of 2003 for the offence under Section 392 read with Section 397 IPC and forwarded the F.I.R to the Court and sent the same to P.W.11. 3. P.W.11 commenced the investigation and went to the place of occurrence and prepared observation mahazar and rough sketch under Exs.P.10 and 11 respectively in the presence of P.W.3 and examined the witnesses and recorded their statements. On 13.07.2003, while he was a patrol in-charge, A-2 and A-3 coming in a motor vehicle. They were intercepted by P.W.11 and seized their vehicle bearing Registration No.TN-59-Y-9894 under the cover of mahazar Ex.P.12. On examination, they gave voluntary confession in the presence of P.W.6. The admissible portion of their voluntary statements marked as Exs.P.13 and 14. Pursuant to their confession, they seized a sum of Rs. 20,000/- from both the accused under Ex.P.15 and Ex.P.16. Thereafter, on 09.09.2003, P.W.11 arrested A-1 and recorded his confession. The admissible portion of the same was marked as Ex.P.17. Pursuant to the same, a sum of Rs. 15,000/- was seized. He has also seized a VIP suit case/M.O.2 under Ex.P.18. Thereafter, he gave a requisition/Ex.P.7 to the Judicial Magistrate to conduct identification parade. Thereafter, on 09.09.2003, P.W.11 arrested A-1 and recorded his confession. The admissible portion of the same was marked as Ex.P.17. Pursuant to the same, a sum of Rs. 15,000/- was seized. He has also seized a VIP suit case/M.O.2 under Ex.P.18. Thereafter, he gave a requisition/Ex.P.7 to the Judicial Magistrate to conduct identification parade. On receipt of the requisition given by P.W.11, P.W.8-Judicial Magistrate No.I, on 24.07.2003, conducted identification parade in respect of A-2 and A-3 in the central prison. In the parade, P.W.1 and P.W.5 identified A-2 and A-3. Pursuant to the said parade, P.W.8, the Judicial Magistrate submitted a report which is marked as Ex.P8. P.W.12 conducted further investigation and finally laid a final report as against all the accused. 4. Based upon the materials and the pleadings, the trial Court convicted A-1 to A-4 under Section 120(b) IPC and sentenced them to undergo seven years rigorous imprisonment and to pay a fine of Rs. 2,000/- each in default to undergo four months rigorous imprisonment each and A-1 to A3 convicted under Section 392 read with Section 397 IPC and sentenced them to undergo seven years rigorous imprisonment and to pay a fine of Rs. 3,000/- each in default to undergo six months rigorous imprisonment each. Aggrieved over the same, the present appeal came to be field. 5. During the pendency of the appeal, a memo has been filed to the effect that A-3 died on 20.12.2017. Death certificate was annexed along with the memo filed by the learned Additional Public Prosecutor. Hence, the charge against A-3 is abated. 6. The learned counsel appearing for the appellants/A1 and A2 would contend that the evidence of P.W.1, P.W.2 and P.W.5 is highly doubtful. The prosecution has not proved the withdrawal of the amount from the Bank. He would further contend that no bank official was examined before the trial Court and the test identification parade conducted by the Judicial Magistrate cannot be believed since the accused were shown to the witnesses prior to the conduct of the test identification parade and A-1 was not identified in the test identification parade. However, A-1 was arrested later. Further, it is contended that the accused were using the same vehicle which was stolen from the witnesses is highly improbable and therefore, the arrest of the accused is highly doubtful. 7. However, A-1 was arrested later. Further, it is contended that the accused were using the same vehicle which was stolen from the witnesses is highly improbable and therefore, the arrest of the accused is highly doubtful. 7. The learned counsel for the fourth appellant/A4 contended that as far as the charge of conspiracy of A-4, there is no evidence available on record. None of the witnesses spoke about the alleged role of A-4. Hence, the conviction rendered by the trial Court against A-4 is without any evidence and therefore, the prosecution has not proved its case beyond reasonable doubt. 8. The learned Additional Public Prosecutor for the State would contend that P.W.1 and P.W.5 are the employees of the TVS Mills. While they were returning from the bank, after withdrawing a sum of Rs. 1,40,000/-, they were waylaid by A-1 to A3 and A2 attacked the vehicle by using aruval. As a result, P.W.1 and P.W.5 fell down. The accused decamped the cash kept in brief case and P.W.1 and P.W.5 identified the accused in the identification parade conducted by the Judicial Magistrate. A-2 and A-3 were arrested and the cash has been seized from A-1 and also seized the brief case. The witnesses have also clearly identified the stolen amount. In the above circumstances, the prosecution has clearly established the guilty of the accused beyond reasonable doubt. Therefore, the judgment of the trial Court does not require any interference by this Court. 9. Heard the learned counsels and perused the entire materials available on record. 10. Admittedly, P.W.1 and P.W.5 are the employees of the TVS Mills. On 07.07.2003, while they were returning from the bank after withdrawing a sum of Rs. 1,40,000/- towards wages of the employees, they were waylaid by A-1 to A-3 and A-2 attacked the handle bar of the vehicle by using aruval. When the vehicle fell down, A-1 to A-3 took away the brief case containing Rs. 1,40,000/-. Thereafter, P.W.1 and P.W.5 went to the mill and complained to the security and informed the higher authorities and to the police station and gave complaint/Ex.P1. P.W.1 and P.W.5 asserted in their evidence that they were waylaid and cash has been stolen. 11. When the vehicle fell down, A-1 to A-3 took away the brief case containing Rs. 1,40,000/-. Thereafter, P.W.1 and P.W.5 went to the mill and complained to the security and informed the higher authorities and to the police station and gave complaint/Ex.P1. P.W.1 and P.W.5 asserted in their evidence that they were waylaid and cash has been stolen. 11. The evidence of P.W.4 clearly indicates that P.W.1 was working as supervisor in the TVS Mill Company on the occurrence date and after the occurrence, he rushed to the mill and informed him that the suit case containing cash and bike were robbed. 12. P.W.1 and P.W5 in their substantive evidence identified A-1 to A-3. It is also to be noted that A-2 and A-3 were put to identification parade. F.I.R was also lodged on the same day of occurrence and they were arrested on 13.07.2003 by the P.W.11-Investigating Officer. Pursuant to their confession, a sum of Rs. 20,000/- recovered from A-2 and A-3 on the same day, besides the motorcycle-M.O.1. On 24.07.2003, identification parade was conducted within 10 days by the Judicial Magistrate-P.W.8. It is the specific evidence of P.W.1 and P.W.5 that prior to the identification parade, they never seen the accused prior to the parade. The witnesses never seen the photographs of the accused in any of the newspapers. That apart, in their substantive evidence, P.W.1 and P.W.5 have identified not only A-2 and A-3 but also A-1. It is to be noted that the identification parade was conducted on 24.07.2003 and after the test identification parade, A-1 was taken custody from some other case. Pursuant to the confession of A-2 and A-3, A-1 was taken on police custody on 09.09.2003 by P.W.11 and therefore, he was not put into identification parade which was conducted much earlier to the arrest of A-1. Merely because, A-1 was not put into the identification parade along with A-2 and A-3, the same cannot be doubted and the evidence of P.W.1 and P.W.5 cannot be disbelieved. P.W.1 and P.W.5, in their substantive evidence clearly spoken about the role played by A-1 to A-3. It is the specific evidence of P.W.1 and P.W.5 that they were waylaid by A-1 to A-3 and blocked their vehicle with aruval and took away the suit case containing a sum of Rs. 1,40,000/-. The evidence of Investigating Officer would clearly show that a sum of Rs. It is the specific evidence of P.W.1 and P.W.5 that they were waylaid by A-1 to A-3 and blocked their vehicle with aruval and took away the suit case containing a sum of Rs. 1,40,000/-. The evidence of Investigating Officer would clearly show that a sum of Rs. 15,000/- also seized from A-1 besides the brief case and the motor vehicle also seized from A-1. P.W.1 and P.W.5 have identified not only the motorcycle but also the brief case which was used for carrying the cash at the relevant point of time. 13. Admittedly, P.W.1, who was the Supervisor of the TVS Mill, was using the bike at the relevant point of time. The bike was seized from A-2 and the brief case was also seized from A-1. The cash was recovered to the tune of Rs. 35,000/- from the accused. Merely because the entire cash could not be recovered from the accused, the same may not be a ground to disbelieve the evidence of P.W.1 and P.W.5. The seizure of the cash depends upon various circumstances, some time the accused might have spent the said amount and the vehicle may be utilised for other activities. In the above circumstances, the evidence of P.W.1 and P.W.5 cannot be disbelieved. It is further to be noted that after the occurrence, they have seen A-2 and A-3 for the first time in the identification parade conducted by the Judicial Magistrate-P.W.8 and they have also identified A-1 in their substantive evidence. The identification of the accused by P.W.1 and P.W.5 in the Court cannot be disbelieved, merely because A-1 was arrested later. P.W.1 and P.W.5 are the employees of the TVS company and they were carrying cash. They have sufficient time to see the accused in the occurrence place, till the accused left the place. They had an opportunity to see their faces. Their faces have imprinted in the minds of P.W.1 and P.W.5 who have experienced such theft unexpectedly. Therefore, this Court does not find any infirmity in the evidence of P.W.1 and P.W.5. There was no motive for implicating the accused. Further, non examination of bank employees will not be fatal to the prosecution. The evidence of P.W.4 clearly indicates that the amount has been stolen. Without any such occurrence, it is not possible for P.W.1 and P.W.5 to rush to the police station and give a complaint. There was no motive for implicating the accused. Further, non examination of bank employees will not be fatal to the prosecution. The evidence of P.W.4 clearly indicates that the amount has been stolen. Without any such occurrence, it is not possible for P.W.1 and P.W.5 to rush to the police station and give a complaint. It is also not necessary for them to give false case against the accused. P.W.4 in his evidence stated that immediately after the occurrence, P.W.1 and P.W.5 in a hurried manner informed about the theft of amount of the company by the accused. The material objects namely, M.O.1-bike and M.O.2-brief case are identified by P.W.1 and P.W.5 besides they were also identified the accused. From their evidence, this Court does not find any infirmity as to the prosecution version. 14. In the above background, it has to be seen whether the prosecution has proved the charge under Section 120(b) IPC against the accused. It is the version of the prosecution that A-4 is ex-employee of the company. He was aware of the withdrawal of the money from the bank and he has conspired with other accused to rob the money. Absolutely, there is no material evidence to show that A-4 entered conspiracy with A-1 to A-3 to rob the said amount at the relevant point of time. If really, A-4 was present in the place of occurrence or some where else, P.W.1 could have stated in the F.I.R itself. Further, there is no iota of evidence available to sustain charge against the fourth accused under Section 120(b) IPC. Therefore, this Court is of the view that the finding of the trial Court convicting A-4 under Section 120(b) of I.P.C is without any evidence. Similarly, the finding of the trial Court convicting A1 to A3 under Section 120(b), is also liable to be interfered with. 15. However, the finding of the trial Court convicting A-1 and A-2 under Section 392 read with Section 397 IPC does not suffer from any infirmity. Therefore, this Court does not find any infirmity in the judgment of the trial Court convicting the A-1 to A-3 under Section 392 read with 397 IPC. Hence, the finding rendered by the trial Court as against A-1 and A-2 under Section 392 read with Section 397 IPC is confirmed. 16. Therefore, this Court does not find any infirmity in the judgment of the trial Court convicting the A-1 to A-3 under Section 392 read with 397 IPC. Hence, the finding rendered by the trial Court as against A-1 and A-2 under Section 392 read with Section 397 IPC is confirmed. 16. In the result, the Criminal Appeal is dismissed as abated in respect of A-3, since he died during the pendency of the appeal. The Criminal Appeal is allowed in respect of A-4 and he is acquitted from the charge under Section 120(b) IPC. The Criminal Appeal is partly allowed in respect of A-1 and A-2 and they are acquitted from the charge under Section 120(b) IPC, however, the conviction under Section 392 read with Section 397 IPC is confirmed. The trial Court is directed to take steps to secure the accused to serve the remaining period of sentence.