JUDGMENT : 1. Criminal Appeal (MD).No.542 of 2006 has been filed by the accused No.2 and Criminal Appeal (MD).No.547 of 2006 has been filed by the accused No.1 against the judgment of conviction and sentence passed by the Additional District and Sessions Judge, Fast Track Court No. III, Madurai in S.C.No.143 of 2006, dated 27.11.2006. 2. The respondent herein had filed a charge sheet stating that on 15.05.2005 at about 8.30 p.m at Kulamangalam to Madurai Road near Yenthal Kanmoi, when the defacto complainant Karalan was proceeding in a bike, the appellants herein and one Moorthy (A3), with an intention to commit robbery, waylaid him and assaulted him on his head with 'aruval' and caused a grievous injury and robbed the bike, gold neck chain, gold bracelet, wrist watch and cash of Rs.4500/- and total value of the things robbed would be about Rs.55,000/- and hence, they are liable to be punished under Sections 394 and 397 of I.P.C. 3. Based on the said charge sheet, the learned Judicial Magistrate, No.4, Madurai had taken the case on file in P.R.C.No.80 of 2005 and committed the case to the Court of Sessions. The learned Principal Sessions Judge, Madurai has taken the case on file as S.C. No. 143 of 2006 and made over the case to the Additional District and Sessions Judge, Fast Track Court No.III, Madurai. After receipt of the case records, the learned Additional District and Sessions Judge, Fast Track Court No.III, Madurai had framed the charges under Sections 341 and 392 r/w 397 I.P.C against the accused Nos.1 to 3 and read over the charges and explained to them. They denied the charges and thereafter, she tried the case and by her judgment dated 27.11.2006 found that the accused Nos.1 & 2 guilty and convicted them under Sections 341, 392 r/w 397 r/w 34 I.P.C and imposed a fine of Rs.500/- each and in default to undergo simple imprisonment for one week under Section 341 I.P.C and sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs.2000/- each in default to undergo rigorous imprisonment for 3 months under Sections 392 r/w 397 r/w 34 I.P.C. However, the learned Additional District and Sessions Judge, Fast Track Court No.III, Madurai had acquitted the accused No.3. Challenging the said conviction and sentence, the accused Nos.1 & 2 have filed the present appeals. 4. Challenging the said conviction and sentence, the accused Nos.1 & 2 have filed the present appeals. 4. The case of the prosecution, in brief, is as follows:- P.W.1, Mr.Karalan is residing at Kosakulam and he is doing money lending business. On 15.05.2005, he collected a sum of Rs.4500/- from the borrowers at Kulamangalam and after keeping the same in the side box of his Hero Honda Splendour bike bearing Regn. No. TN 59 U 9310 (M.O.1), he was proceeding to his house. When he came near Yenthal Kanmoi, it was about 8.30 p.m and at that time, two persons waylaid him. P.W.1 stopped his bike by having the impression that the said persons were seeking lift in his bike. Immediately one of them pulled his shirt and pushed down, the other person cut him with an aruval on the right side of his head. Thereafter, the said persons robbed his wrist watch (M.O.2), gold bracelet (M.O.3), 1 ½ sovereign gold neck chain (M.O.4) and fled away by taking the M.O.1 bike. P.W.1 shouted and after hearing his shout, Mr.Pandi (P.W.4) came there and he lifted P.W.1 and kept him on his lap. P.W.4 enquired P.W.1 and the P.W.1 told him what was happened. There came a mini bus at that time. Mr.Krishnan (P.W.5), Mr.Madikrishnan (P.W.7) and Mr.Muthuraman (P.W.8), who came in the minibus took the P.W.1 through the said minibus and admitted him in Vadamalayan Hospital, Madurai. 5. Dr.Chidambaram (P.W.2) attached to the said Vadamalayan Hospital admitted the P.W.1 as inpatient on 15.05.2005 at 9.20 p.m. He noticed a cut injury measuring about 5 x 1 x 1 cm on the right side of the P.W.1's head and sent a phone message to the police. He took scan and found that the skull bones were pressed and broken into pieces and gave treatment and discharged the P.W.1 on 27.07.2005. He issued a wound certificate (Ex.P.2) stating that the said injury is a grievous one. 6. Mrs.Prasanna Gunasundari (P.W.11) who was working as the Sub-Inspector of Police at Koodal Pudur Police Station, after receiving the phone message from the Vadamalayan Hospital rushed to the said hospital on 15.05.2005 at about 10.00 p.m and got statement (Ex.P.1) from P.W.1 and obtained his signature. Since P.W.1's brother-in-law Mr.Navamani (P.W.3) was also there, he signed in Ex.P.1 as witness. Mrs.Prasanna Gunasundari (P.W.11) who was working as the Sub-Inspector of Police at Koodal Pudur Police Station, after receiving the phone message from the Vadamalayan Hospital rushed to the said hospital on 15.05.2005 at about 10.00 p.m and got statement (Ex.P.1) from P.W.1 and obtained his signature. Since P.W.1's brother-in-law Mr.Navamani (P.W.3) was also there, he signed in Ex.P.1 as witness. Thereafter, P.W.11 went back to the police station and registered a case at 11.30 p.m in Cr.No.383 of 2005 under Section 397 I.P.C and forwarded the first information report (Ex.P.9) to the jurisdictional Magistrate along with the original complaint and submitted a copy of the FIR to the Inspector of Police. 7. Mr.Ramachandran (P.W.12), when he was working as Inspector of Police at Koodal Pudur Police Station, on 15.05.2005 at about 24.00 hours, received a copy of the FIR from P.W.11 and took the matter for investigation. He proceeded to the scene of occurrence and prepared an Observation Mahazar (Ex.P.10) on 16.05.2005 at 1.00 a.m in the presence of one Dhanapalan (P.W.9) and one Baskaran. The signature of the P.W.9 which is found in Ex.P.10 has been marked as Ex.P.3. He also prepared a rough sketch (Ex.P.11). Thereafter, P.W.12 proceeded to the Vadamalayan Hospital and examined P.W.1 and recorded his statement. Thereafter, he examined P.Ws.3 to 9 and recorded their statements. 8. On 20.05.2005 at 3.00 p.m when P.W.12 was checking the vehicles at Madurai-Alanganallur Main Road near Milagurani branch road, from the northern side of the road, the accused Nos.1 to 3 came in M.O.1 bike and on suspicion, he stopped them and on enquiry, he came to know that they were involved in the aforesaid case. Hence, he arrested the accused 1 to 3 and further enquired them in the presence of one Arumugasamy (P.W.10) and one Komban. Accused Nos.1 to 3 voluntarily gave confession statements. They have been recorded separately. The admissible portions of the confession statements of the accused Nos.1 to 3 have been marked as Exs.B.12 to 14 respectively. Accused 1 to 3 have produced the Hero Honda bike (M.O.1), wrist watch (M.O.2), gold bracelet (M.O.3), 1 ½ sovereign gold neck chain (M.O.4) and cash of Rs.3000/- (M.O.5 series). P.W.12 has seized the aforesaid articles under a seizure Mahazar (Ex.P.15). Thereafter, accused 1 to 3 took P.W.12 and other witnesses (P.W.10 and Komban) to Yenthal Kanmoi and took an aruval (M.O.6) from a thorny bush. P.W.12 has seized the aforesaid articles under a seizure Mahazar (Ex.P.15). Thereafter, accused 1 to 3 took P.W.12 and other witnesses (P.W.10 and Komban) to Yenthal Kanmoi and took an aruval (M.O.6) from a thorny bush. P.W.12 has seized the said aruval under a seizure Mahazar (Ex.P.16) in the presence of P.W.10 and one Komban. Signatures of the P.W.10 which are found in the confession statements of the accused 1 to 3 and in the seizure Mahazars have been marked as Ex.P.4 to P.8. P.W.12 has sent the accused 1 to 3 to the jurisdictional Magistrate for remand. P.W.12, after showing M.Os.1 to 5 to P.W.1, has sent the material objects to the jurisdictional Magistrate, through two Form-95s (Ex.P.17 series). Thereafter, he examined P.W.2 and obtained wound certificate and after completing the investigation, he has laid a charge sheet against the accused 1 to 3 under Sections 394 r/w 397 I.P.C. 9. The evidence on the prosecution side was closed with P.W.12. Thereafter, the accused 1 to 3 were questioned under Section 313 of Cr.P.C, regarding the incriminating circumstances found in the evidence of the prosecution witnesses. They have denied their complicity in the crime and examined one of the seizure Mahazar witnesses namely Komban @ Madasamy as D.W.1. He has deposed that he and P.W.10 have signed only in the Koodalpudur Police Station. He further stated that the accused persons did not give any confession and material objects also not seized in their presence. 10. The evidence on the side of the defence was closed with D.W.1. The learned trial Judge, after hearing both sides, convicted the accused Nos.1 and 2 and sentenced them as stated above and acquitted the accused No.3. Aggrieved by the same, the accused Nos.1 & 2 have preferred the present appeal. 11. Heard the learned counsel for the appellants and the learned Government Advocate (Crl. Side). 12. The points for consideration are as follows:- “(1) Whether the prosecution has proved the charges which are framed against the accused Nos.1 & 2, beyond reasonable doubt? (2) Whether this appeal has to be allowed?” 13. Point No.1:- The learned counsel for the appellants contended that the learned Trial Judge failed to appreciate the evidence in proper perspective. Side). 12. The points for consideration are as follows:- “(1) Whether the prosecution has proved the charges which are framed against the accused Nos.1 & 2, beyond reasonable doubt? (2) Whether this appeal has to be allowed?” 13. Point No.1:- The learned counsel for the appellants contended that the learned Trial Judge failed to appreciate the evidence in proper perspective. The learned counsel for the appellants further contended that the only eye witness is the P.W.1 and the said witness has stated in his evidence as well as in FIR that only two persons had involved in the alleged crime, but the Investigating Officer has laid charge sheet against three accused persons. She further contended that the alleged occurrence took place in the night and that the accused persons were already not known to P.W.1 and that being so, Test Identification Parade should have been conducted, but, in this case, no such Test Identification Parade was conducted. She further contended that the alleged confessions and the recovery of the material objects have not been proved. She further contended that there are material contradictions in the evidence of the prosecution witnesses and without considering the same, the learned Trial Judge has convicted the appellants and hence, she prayed to allow the appeals. 14. The learned Government Advocate (Crl.Side) contended that the trial court has convicted the appellants, after taking into consideration all the material points and hence, he prayed to dismiss the appeal. 15. The prosecution case rested on the evidence of P.W.1 and the recovery of the stolen articles and aruval. P.W.1 has stated in his evidence that on 15.05.2005 at about 8.30 p.m, when he was coming in the Hero Honda Splendour bike at Kulamangalam Yenthal Kanmoi, two persons waylaid him. He further stated that he has stopped his bike and immediately one of them by holding his shirt pulled and pushed him down and another person assaulted him with aruval on the right side of his head and thereafter, both the assailants robbed the wrist watch, gold neck chain, gold bracelet and also took his bike and fled away. He further stated that the persons who have committed robbery are in the court. In the F.I.R also, he has stated that only two persons involved in the crime. But, charge sheet has been filed against three persons. He further stated that the persons who have committed robbery are in the court. In the F.I.R also, he has stated that only two persons involved in the crime. But, charge sheet has been filed against three persons. P.W.1 has not specifically identified in the Court that out of three accused, who pulled and pushed him down by holding his shirt and who attacked him with aruval. He has simply stated that the persons who have robbed him are present in the Court. P.W.1 was examined in chief on 20.06.2006. The notes paper of the trial court shows that on 20.06.2006, all the three accused appeared before the Court. That being so, it is not known, how the learned Trial Judge came to the conclusion that the accused Nos.1 & 2 only committed offence. 16. According to the prosecution, the appellants were not already known to P.W.1. As per his evidence, the occurrence took place in the night and he has seen the culprits only with his bike light for a few minutes. Under the said circumstances, the Investigating Officer should have taken steps to conduct Test Identification Parade. 17. In this context, it would be relevant to refer the decision in Amitsingh Bhikamsingh Thakur Vs. State of Maharashtra (2007) 2 MLJ (Crl) 216 (SC), wherein, the Honourable Supreme Court in paragraph No.14 has observed as follows: “14. It is trite to say that the substantive evidence is the evidence of identification in Court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The Wright to be attached to such identification should be a matter for the Courts of fact. In appropriate cases, it may accept the evidence of identification even without insisting on corroboration.” (Emphasis supplied) 18. In the case on hand, the only eye witness is the P.W.1. As already pointed out that in the FIR as well as in evidence, P.W.1 has stated that only two persons involved in the crime. But the prosecution has been launched against three accused persons. P.W.1 has not specifically identified that out of three accused persons appeared in Court, who were the two persons committed the offence. He has simply stated that the persons who have robbed him are present in the Court. His evidence is very vague with regard to the identification of the accused. Therefore, much evidentiary value cannot be attached to his evidence, without corroboration. 19. The next circumstance which is relied on by the prosecution is recovery of stolen articles and weapon. He has simply stated that the persons who have robbed him are present in the Court. His evidence is very vague with regard to the identification of the accused. Therefore, much evidentiary value cannot be attached to his evidence, without corroboration. 19. The next circumstance which is relied on by the prosecution is recovery of stolen articles and weapon. According to the Investigating Officer (P.W.12), on 20.05.2005 at about 3.00 p.m, when he was checking the vehicles at Madurai-Alanganallur main road near Milagurani branch road, the accused 1 to 3 came in M.O.1, bike from north to south and he stopped them and enquired with them and they have admitted that they committed the offence and thereafter, he arrested them and recorded their confession statements in the presence of P.W.10 and D.W.1 But he has not stated that among the three accused, who has driven the motorcycle and who were pillion riders. 20. D.W.1, who is one of the mahazar witnesses, has stated that he and P.W.10 have signed only in the Police Station and the material objects were not seized in their presence. P.W.10 is another mahazar witness. He has not stated in his evidence that he has seen the accused persons 1 to 3 when they were coming in the M.O.1 bike. He has stated that when he was reaching Milagurani, a bike was standing there and the Inspector of Police and the accused Nos.1 to 3 were also standing there. Further, he has stated that the accused persons have admitted their guilt and gave confession statements. He has also stated that the police had recovered a chain, a bracelet, a wrist watch and cash of Rs.3,000/- from the accused. He has not stated that the bike was recovered. Further, his evidence shows that the aforesaid articles were not shown to him in the court. Further, those articles were not recovered, based on the confession statements given by the accused persons. According to the prosecution, the accused persons came in a bike and they were stopped by P.W.12 and thereafter, the aforesaid articles were recovered from there itself. As already stated, P.W.10 did not say that he has seen the accused persons, when they were coming in a bike. According to him, the bike was standing there. Under the said circumstances, the uncorroborated evidence of P.W.12 cannot be accepted. 21. As already stated, P.W.10 did not say that he has seen the accused persons, when they were coming in a bike. According to him, the bike was standing there. Under the said circumstances, the uncorroborated evidence of P.W.12 cannot be accepted. 21. It is also to be pointed out that in the seizure mahazar (Ex.P.15), it has been stated that M.Os 1 to 4 alone were recovered. It is not stated that the cash of Rs.3,000/- (M.O.5) was also recovered. It is also to be noted that as per the prosecution case, on the basis of the confession statements given by the accused 1 to 3, one aruval was recovered from a thorny bush at Yenthal Kanmoi. The Investigating Officer (P.W.12) in his evidence has stated that the accused No.1 gave confession statement first. In the said confession statement itself, the place where the aruval is hidden has been mentioned and that being so, there was no necessity to get confession statements from other accused persons. 22. It is pertinent to note that in Ex.P.15 (Mahazar for recovery of M.Os.1 to 5), it is stated that it was prepared on 20.05.2005 at 18.30 hours at Madurai to Alanganallur main road near Milagurani Branch road. In Ex.P.16 (Mahazar for recovery of aruval) also, it is stated that it was prepared on the same date and same time at Yenthal Kanmoi. As per the prosecution case, the aforesaid Mahazars were prepared at different places and that being so, they could not be prepared at one and the same time. This itself shows that the aforesaid mahazars might have been prepared subsequently only. 23. In this case, two aruvals have been marked as M.Os.6 and 7. The aruval, which was said to have been used by the accused at the time of occurrence, was not at all shown to the P.W.1 and it was not marked as material object through him. It was not shown to the mahazar witness (P.W.10) also. One aruval was marked as M.O.6 through the Investigating Officer (P.W.12) and subsequently, it was found that the said Aruval was not related to this case and hence, P.W.12 was subsequently recalled and examined further and at that time, another aruval was marked as M.O.7. It was not shown to the mahazar witness (P.W.10) also. One aruval was marked as M.O.6 through the Investigating Officer (P.W.12) and subsequently, it was found that the said Aruval was not related to this case and hence, P.W.12 was subsequently recalled and examined further and at that time, another aruval was marked as M.O.7. There is no evidence to show that either M.O.6 or M.O.7 was used by the accused for attacking the P.W.1, because they were not at all shown to P.W.1 and not identified by him. So, much evidentiary value cannot be attached to the recovery of aruval. 24. At this juncture, it would be relevant to refer the decision in Pulukuri Kotayya V. Emperor, AIR 1947 PC 67 , wherein, it was observed as follows: “......Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant.” 25. From the aforesaid decision, it is clear that mere recovery of the weapon is not sufficient. It should be proved that the said weapon has been used in the commission of the offence and then only the fact discovered is relevant. In this case, as already stated that the aruval was not shown to P.W.1 and was not identified by him and therefore, it cannot be said that the aruval produced in this case was used in the commission of the offence. The learned trial court Judge failed to consider the aforesaid facts. 26. For the aforesaid reasons, I am of the view that the prosecution has failed to prove the charges framed against the appellants herein beyond reasonable doubts. Therefore, these appeals have to be allowed. Accordingly, this point is answered against the prosecution. 27. Point No.2 : In the result, these criminal appeals are allowed. The judgment of conviction and sentence passed by the Learned Additional District and Sessions Judge, Fast Track Court No.III, Madurai in S.C.No.143 of 2006, dated 27.11.2006 are set aside. Therefore, these appeals have to be allowed. Accordingly, this point is answered against the prosecution. 27. Point No.2 : In the result, these criminal appeals are allowed. The judgment of conviction and sentence passed by the Learned Additional District and Sessions Judge, Fast Track Court No.III, Madurai in S.C.No.143 of 2006, dated 27.11.2006 are set aside. The appellants/accused Nos.1 & 2 are acquitted for the offences under Sections 341, 392 r/w 397 r/w 34 I.P.C. The bail bonds executed by them shall stand cancelled. If fine amount is already paid, that should be returned to them. Consequently, connected M.P. (MD).No.1 of 2006 is closed.