JUDGMENT (Prayer: Criminal Revision Case has been filed under Section 397 & 401 of Cr.P.C., against the judgment of the lower Appellate Court made in C.A.No.30 of 2014 dated 17.12.2014 on the file of the learned Principal District and Sessions Judge, Udhagamandalam, Nilgiris District, confirming the conviction and sentence passed by the learned Assistant Sessions Judge, Udhagamandal, Nilgiris District made in S.C.No.34 of 2014, dated 06.01.2006 finding that the accused 1, 2 and 4 herein are guilty of the offence under Section 397 and 427 IPC and also finding that the accused 3 and 6 guilty of the offence under Section 397 read with 34 IPC and 427 read with 34 IPC respectively and sentencing the accused 1, 2,4 each for the offence under Section 397 IPC and sentencing them to undergo 7 years RI each and also convicting them for the offence under Section 427 IPC each and sentencing them each to undergo one year RI each, also convicting the Accused 3 and 6 for the offence under Section 397 IPC read with Section 34 IPC each and sentencing them each to undergo 7 years RI each also convicting them each for the offence under Section 427 read with 34 IPC and sentencing them each to undergo one year RI each and the sentences to run concurrently, besides observing that offence under Section 395 IPC would not be applicable in this case and the period already undergone by the accused shall be deducted from the period of sentence.) 1. The Revision Petitioners herein are the accused in S.C.No.34/2004 on the file of Assistant Sessions Court, Uthagamandalam, Nilgiri’s District. 2. Aggrieved by the conviction and sentence of 7 years RI for offence under Section 397 IPC and 1 year RI for offence under Section 427 IPC for the petitioners 1,2 and 4/accused 1,2 and 4; sentence of 7 years RI for offence under Sections 397 r/w 34 IPC and 1 year RI for offence under Section 427 r/w 34 IPC for the petitioners 3 and 5/Accused 3 and 6, appeal in C.A.No.30/2014 was preferred before the District Sessions Court, Othagamandalam. The said appeal dismissed on 17/12/2014 confirming the trial court judgment dated 06/01/2006. 3. The said appeal dismissed on 17/12/2014 confirming the trial court judgment dated 06/01/2006. 3. The case of the prosecution as unfurled through witnesses is that, the petitioners herein along with Muniyandi @ Kumar (died pending trial) with intention to commit dacoity joined together on 03/11/2002 near 27th Mile Bus stop at Guddalur, Naduvattam Main Road. At about 22.30 p.m, A-1 and A-2 obstructed the Guddalur – Kunnur Road by pushing the Auto and restrained the Maruthi Van bearing Registration No. TN-43-A-0762 proceeding from Guddalur to Kunnur. When the driver of the Van stopped the vehicle, A-1 and A-2 came running towards the Van carrying gauva wooden logs, A-4 and A-5(Muniyandi (deceased)) came out from the nearby bush. A-3 joined them with log and all damaged the windshields of the Van on all sides, attacked the occupant Jayathul (PW-1) and the driver Arumugam (PW-2) with wooden logs and caused grievous injuries to them, then, A-1 and A-2 robbed Rs.2,95,000/- cash and a Demand Draft for Rs.50,000/- kept in a bag by Jayathul and fled. Gangadaran (PW-26 ) a lorry driver, who was passing through, saw PW-1 with severe bleeding injuries. At request of PW-1, Gangadaran with the help of his cleaner Farook, took the injured to PW-3 [Vivekananthan] house. From PW-3 house, PW-1 and PW-2 were taken to Guddalur Government Hospital. Dr. Tamilselvan at Guddalur Government Hospital examined PW-1 and PW-2, recorded the injuries found on them in the Accident Register (Ex.P-20 and Ex.P-21 respectively). After giving first aid to PW-1 and PW-2, they both were referred to Government Hospital, Ooty. At the Govt. Hospital, Ooty, on 04/11/2002 at about 6.00 a.m, the injured (PW-1) and (PW-2) were admitted for treatment. On receipt of the memo from the hospital, PW-33 (Sub- Inspector of Police) attached to Guddalur Police Station went to the hospital and recorded the statement of PW-1 and registered First Information Report in Crime No.122/2002. 4. PW-34 (Nachimuthu), the Inspector of Police took up the investigation visited the spot prepared observation mahazar (Ex.P-3) and sketch (Ex.P-42). Recovered broken windshields glass pieces (M.O-11) under Mahazar (Ex.P-4). The investigation was continued further by PW-35 Mr.Arumugam (Inspector), who constituted three special teams to nab the culprits. He arranged for lifting of finger prints in Maruthi van. On 09/11/2002 at about 07.15 hrs, A-1 was arrested. Recovered broken windshields glass pieces (M.O-11) under Mahazar (Ex.P-4). The investigation was continued further by PW-35 Mr.Arumugam (Inspector), who constituted three special teams to nab the culprits. He arranged for lifting of finger prints in Maruthi van. On 09/11/2002 at about 07.15 hrs, A-1 was arrested. Based on the confession statement of A-1, the details of his associates came to the knowledge of the Investigating Officer. Further, on the information given by A-1, from the blue colour bag buried under a plant near the house of A-1, Rs.1,23,100/- a part of the robbed money was recovered. The guava wooden logs M.O-1 to M.O-4 concealed under the bushes near the scene of crime was also recovered. As a follow up, the information given by A-1 lead to arrest of A-2, who in his statement disclosed the place of concealment of Rs.20,400/- and the auto used for the crime. Both were recovered under mahazar Ex.P-11 in the presence of witnesses. Subsequently, Pushparaj (originally A-6, later reassigned as A-5 on the death of A-5 ) was arrested and based on his information. Rs.20,270/- recovered from him under Mahazar Ex.P-13. 5. On 10/11/2002, on the information given by the respective accused, From A-4 -- Rs.100 x 200 + Rs.50 x 96 recovered under Mahazar (Ex.P-15). From A-3 – Rs.500 x 68 + Rs.100 x 100 + Rs.50 x 460 + Rs.10 x 103 recovered under Mahazar (Ex.P-17). From A-5 (deceased) Rs.100 x100, Rs.50 x 296 recovered under Mahazar (Ex.P-19). 6. Out of four finger prints lifted from van, one tallied with PW-1 the owner of vehicle, one tallied with PW-2 the driver of the vehicle and one tallied with A-1 and the remaining one not tallied with any of the accused. 7. Based on the evidence as deposed by PW-1 to PW-35 and documents Ex.P-1 to Ex.P42, the trial Court as well as the Court of appeal held the prosecution has proved the guilt of the accused persons beyond reasonable doubt. 8. The learned counsel appearing for the petitioners/accused submitted that, the Courts below not properly appreciated the evidence. One of the injured witness PW-2, who is the driver of the Maruthi Van and alleged to have accompanied PW-1 at the time of alleged incident has turned hostile and not supported the prosecution version. 8. The learned counsel appearing for the petitioners/accused submitted that, the Courts below not properly appreciated the evidence. One of the injured witness PW-2, who is the driver of the Maruthi Van and alleged to have accompanied PW-1 at the time of alleged incident has turned hostile and not supported the prosecution version. The identification parade was a farce exercise, since PW-1 has admitted that their photographs were published in newspapers before conducting the ID parade. The fingerprint expert report about the 3rd print belongs to A-1 is highly suspectable. The currencies alleged to have recovered from each of the accused was not marked and the encashment of the DD amount of Rs.50,000/- by PW-1 was suppressed. In the cross examination, PW-1 has deposed that he know A-1 prior to the incident, since he was former employee of PW-3. In his complaint, PW-1 has not disclosed this vital fact. The ownership of the Auto alleged to have been recovered from A-2 not probed or established in the manner known to law. The actual owner of the auto according to the prosecution is one Ibrahim. However, the said Ibrahim was not examined in the Court. The confession statements of the accused given to police while under custody and the uncorroborated evidence of PW-1 about the incident has been erroneously weighed by the Courts below as against the contradictions and failure to prove the presence of the accused at the place of occurrence on the date of occurrence. 9. Per contra, the Learned Government Advocate (Crl.Side) submitted that, PW-1 and PW-2 are the witnesses, who got injured in the course of robbery. PW-2, though has deposed cogently and in corroboration of PW-1 evidence about the incident, he was not able to identify the assailants, since he got fainted after sustaining injuries. Hence, he was treated hostile. His evidence about the injuries he sustained, the damages caused to the van are reliable and relevant. PW-3 is one of the customer of PW-1. He has spoken about the visit of PW-1 on 03/11/2002 at about 7.00 p.m and collected Rs.30,000 from him and went to the opposite shop and came back about 9.00 pm and left in the maruthi van. At that time, he saw A-1 who worked in his shop 7-8 years ago. He was with two other persons showing PW-1 to them. At that time, he saw A-1 who worked in his shop 7-8 years ago. He was with two other persons showing PW-1 to them. Later, while he was at his home, someone called him out and informed about the incident took place near 27th Mile Bus Stop and he saw PW-1 laying injured inside his van. Then, he arranged them to be taken to hospital. The Doctors, who treated the injured at Guddalur Hospital, Ooty hospital and KG hospital were examined. The injuries sustained by PW-1 and PW-2 as mentioned in Ex.P-20 and Ex.P-21. The finger print experts reports Ex.P-33 and Ex.P-34 proves the case of the prosecution that A-1 was the mastermind in this case and his presence at the time of attack and robbery is established beyond any doubt. In this case, the confession statement of the accused have led to discovery of fact, namely the money robbed from PW-1 being concealed at the places, which were in exclusive knowledge of the respective accused. Thus, the non identification of the assailants by PW-2 does not breach the case of the prosecution since, through other witnesses and evidences, the role of the accused persons has been well established. 10. Heard the submissions made by respective counsels for the petitioners and the respondent. 11. The evidence laid by the prosecution proves the fact that PW-1 and PW-2 sustained injuries and got admitted in the hospital on the midnight of 03/11/2002. The Accident Report, which is the earliest record of the incident of these two witnesses is marked as Ex.P-20 and Ex.P-21 through PW-22, Dr.Tamilselvan. In the Accident Register of PW-1, it is mentioned that ‘alleged to have been assaulted by 2 un known male persons using wooden sticks. The letters ‘un’ is inserted before known. In the AR given for PW-2, it is mentioned as assaulted by 2 unknown persons. The complaint marked as Ex.P-1 was received from PW-1 from the hospital on 03/11/2002 at Government Head Quarters Hospital, Udhagamandalam at about 8.00 am. In the complaint Ex.P-1, the words 2 unknown persons written in Tamil is corrected as known persons ('bjhpahj' as 'bjhpe;j'). The FIR copy received by the Magistrate on the same day at about 5.20 p.m. 12. PW-1 for the first time during the examination before the Court, has stated that he knows A-1 and he was former employee of PW-3. In the complaint Ex.P-1, the words 2 unknown persons written in Tamil is corrected as known persons ('bjhpahj' as 'bjhpe;j'). The FIR copy received by the Magistrate on the same day at about 5.20 p.m. 12. PW-1 for the first time during the examination before the Court, has stated that he knows A-1 and he was former employee of PW-3. The contemporaneous documents, which are part of records maintained in the course of official transactions, it is stated that the assailants were unknown persons to PW-1 and PW-2. Particularly, PW-2 has consistently stated that he does not known the assailants. 13. The other incriminating evidence against these petitioners are the recovery of currencies of different denominations under Mahazar Ex.P-13, Ex.P-15, Ex.P-17 and Ex.P-19, based on the confession statements. Though there is reference about these currencies and denominations in the mahazars and Form-91, they were not marked during the trial. No explanation from the prosecution seen from the record. 14. The other incriminating material is the finger print of A-1 lifted from the Maruthi Van and recovery of M.O-1 to M.O-4 wooden guava wooden log on the information of A-1. Undoubtedly, the presence of A-1's finger print in the van in which PW-1 and PW-2 travelled is a strong evidence against A-1 and the same gets strengthened by the evidence of PW-1, who has identified A-1. Likewise, the recovery of Auto M.O.10 from A-2 is proved through the Seizing Officer and the mahazar witness PW-19 (Gobu, Village Administrative Officer, Guddalur). PW-15 had deposed that while crossing the Guddalur Road, he saw an auto rickshaw and a maruthi van on the road and few people were smashing the van. He passed without rescuing the injured whereas PW-26 Gangadaran a good Samaritan, who crossed the road at that time seeing two persons injured lying in pool of blood, had taken them to the house of PW-3 and handed over to him on the request of PW-1. 15. Thus, the prosecution has clearly established the fact how the robbery schemed and executed. As far as the persons, who actually involved, the identification of the accused persons by the victim and the finger print of A-1 in the Van and the confession statement leading to discovery of facts form basis for conviction. 16. 15. Thus, the prosecution has clearly established the fact how the robbery schemed and executed. As far as the persons, who actually involved, the identification of the accused persons by the victim and the finger print of A-1 in the Van and the confession statement leading to discovery of facts form basis for conviction. 16. This Court finds that from the evidence, offence of robbery is proved without doubt about the involvement of A-1 and A-2 but not against the other 3 accused. The evidence, which are incriminating the petitioner 3 to 5 is not proved beyond doubt. The earliest version of PW-1 and PW-2 as spoken by the PW-22, who recorded the AR that PW-1 and PW-2 were assaulted by 2 unknown persons. Whereas the FIR registered after few hours says they were assaulted by 4 persons. Later the prosecution laid final report against 6 persons out of which one died during trial. 17. Therefore, this Criminal Revision Case is allowed in respect of the petitioners 3 to 5. The judgment of conviction and sentence against A-3 to A-5 in C.A.No.30 of 2014 dated 17.12.2014 is set aside. 18. The conviction of A-1 and A-2 is confirmed. Since, the robbery is not proved involving 5 or more persons, the offence proved against A-1 and A-2 fall under Section 392 IPC not under Section 397 IPC. Therefore, they are held guilty of offences under Section 392 IPC for committing robbery during night at highways and under Section 427 IPC for causing damage to the property worth more than Rs.50/- 19. Accordingly, A-1 and A-2, are sentenced to undergo 3 years RI for the offence under Section 392 IPC; and to undergo 1 year RI for the offence under Section 427 IPC. The period of sentence shall run concurrently. Period of imprisonment already undergone shall be setoff. The trial Court is directed to secure the accused 1 and 2 to undergo the remaining period of sentence imposed on them. 20. In the result, this Criminal Revision Case is partly allowed. The conviction and sentence for A-1 and A-2 are modified as above. The sentence and conviction for A-3 to A-5 is set aside.