JUDGMENT (Prayer: Criminal Appeal is filed under Section 374 (2) of Cr.P.C., to set aside the judgment passed by the Learned II Additional District and Sessions Judge, Vellore at Ranipet in S.C.No.250 of 2010 by its judgment dated 20.08.2013.) 1. This Criminal Appeal is directed against the conviction and sentence imposed on the appellant/accused by the trial Court, who are arrayed as A1 in Crl.A.No.725 of 2013. 2. Crl.A.No.626 of 2013 filed before this Court by the appellant/Vinod, who is arrayed as A2, reported died. Therefore, the Crl.A.No.626 of 2013 gets abated, vide its judgment dated 09.09.2022. 3. The case of the prosecution is that, on 14.04.2010 at about 3.30 a.m., Murugan (A1) along with A2 went to the Petrol bunk to fill fuel to the two wheeler bearing registration No.TN-69-Y-8290. After filing up the fuel for Rs.300/-, they gave Rs.1000/- and when cashier of the Petrol Bunk opened the cash box and tried to give balance, A1 wielded knife M.O.4 and under the threat and causing injury to the cashier P.W.1. The accused persons A1 & A2 robbed cash of Rs.28,000/- in the cash box fled away. They resisted the accused persons but accused person left the two wheeler (M.O.1) and one of the accused person's left his slipper. After dropping the weapon used to attack P.W.1, both the accused persons fled away. In this connection, F.I.R was given by P.W.1 at 12 noon and case was registered in Crime No.171 of 2010 for offence under Section 394 of I.P.C. The printed form of the F.I.R (Ex.P.10), the accused persons were arrested. Subsequently, based on their confession, a sum of Rs.5,500/- from A1 and Rs.3,500/- from A2 was recovered under mahazar Ex.P.3 and Ex.P.4. This was witnessed by P.W.5 (Parameswaran) and P.W.6 (Chandrasekaran). 4. After investigation, final report was filed and case was committed to Sessions Court and taken on file in S.C.No.250 of 2010. The trial Court framed charge against A1 & A2 for offence under Section 397 r/w 34 of I.P.C. 5. To prove the charges, the prosecution examined 12 witnesses and marked 14 Exhibits, 6 material objects were marked in support of the prosecution case. 6. Before the trial Court, the accused persons contended that, F.I.R was forwarded to Judicial Magistrate on 22.04.2010, after delay of 8 days. The alleged injury to P.W.1 not proved and the recovery of weapon not been proved beyond doubt. 6. Before the trial Court, the accused persons contended that, F.I.R was forwarded to Judicial Magistrate on 22.04.2010, after delay of 8 days. The alleged injury to P.W.1 not proved and the recovery of weapon not been proved beyond doubt. Though the evidence for prosecution found contradictory to each other, the trial Court erroneously found accused guilty and convicted for offence under Section 394 of I.P.C., sentenced to undergo 10 years R.I and to pay fine of Rs.1000/-, in default one month R.I. 7. The Learned Counsel appearing for the appellant in Crl.A.No.725 of 2013, Murugan (A1), contended that, the First Information Report was filed on 14.04.2010 for offence under Section 394 of I.P.C. After investigation, the trial Court took cognizance of the offence and framed charge under Section 397 r/w 34 of I.P.C. However, convicted that the accused (A1) for offence under Section 394 of I.P.C. Without altering the charge and without giving opportunity to the accused persons the accused were convicted. Thereby prejudice caused to the accused persons. 8. The delay in reporting the incident alleged to have been occurred at 3.30 a.m., in the morning of 14.04.2010 not properly explained either by the defacto complainant or by prosecution. Coupled with the fact that registered F.I.R was forwarded to the Magistrate, after delay of 8 days, also not been explained. These delay probabilises the version of the prosecution as spoken by P.W.1 is tutored on advice and F.I.R was written on the dictate of the Police present in the Station and not by the informant. 9. Though, P.W.1 (Jagan) claims that, he sustained injury at the hands of 1st accused Murugan, at early morning of the day, P.W.1 went to the hospital only in the evening at 3.00 p.m., nearly 12 hours after the occurrence. According to the witness, when P.W.1 reported the matter to the Police, they sent him to the hospital with memo but the said memo is not available and no explanation given by the prosecution for not producing the memo. 10. The Learned Counsel appearing for the appellant submitted that P.W.5 and P.W.6 are alleged to have been witnessed for the recovery mahazar. They have not supported the case of the prosecution. 10. The Learned Counsel appearing for the appellant submitted that P.W.5 and P.W.6 are alleged to have been witnessed for the recovery mahazar. They have not supported the case of the prosecution. Furthermore, while questioning the accused under Section 313 of Cr.P.C., regarding the incriminating evidence of P.W.5, P.W.6 and P.W.7 the trial Court has not put the actual incriminating portion spoken by these witnesses. 11. Reading the questions as framed by the trial Court connected with the deposition of P.W.5, P.W.6 and P.W.7, the Learned Counsel for the appellant submitted that the questions framed under Section 313 of Cr.P.C., by the trial Court indicates that, P.W.5 is Velayutham and he had deposed about the signature in Ex.P.12 observation mahazar dated 09.10.2009 prepared at 9.20 a.m. P.W.6 (Gajendran) is another witness to the observation mahazar marked Ex.P.13 and his signature. P.W.7 is (Gupta) the photographer who took photos of the four accused and marked M.O.4 series. These portions of evidence of P.W.5, P.W.6 and P.W.7 as found in Section 313 of Cr.P.C., questioning are by persons unconnected to the crime and incident. 12. In this case, actually P.W.5 is one Parameswaran. He has witnessed to the mahazars (Ex.P.3) and (Ex.P.4) for the recovery of currencies marked as M.O.2 & M.O.3. P.W.6 is one Chandrasekaran who also has witnessed to the recovery of M.O.2 & M.O.3 under mahazars Ex.P.3 & Ex.P.4. P.W.7 (Anandan), who has witnessed to the observation mahazar (Ex.P.6) for recovery of Motorcycle, knife, pair of chappal and torn baniyan which are marked as M.O.1, M.O.4, M.O.5 and M.O.6. 13. Whereas, while questioning the accused under Section 313 of Cr.P.C., the Court has put question to the fact that P.W.5 (Velayutham) and P.W.6 (Gajendran) as witnessed the observation mahazar dated 09.10.2009 and P.W.7 (Gupta) who took photograph of the accused persons. Thus, there is a complete blank out regarding recovery of M.O.1 to M.O.6 and the mahazars Ex.P.3, Ex.P.4 and Ex.P.7, which were prepared for seizure of the above said Material Objects. 14. Pointing out the error in questioning the accused under Section 313 of Cr.P.C., the Learned Counsel for the appellant contended that nonapplication of mind by the Court below has caused prejudice to the accused persons by putting irrelevant questions and not confronting them with the questions relevant to the case for them to explain. Hence, the sentence and conviction must be set aside. 15. Hence, the sentence and conviction must be set aside. 15. This Court, on considering the above submissions and on verifying the questions put to the accused under Section 313 of Cr.P.C., finds that, as far as the evidences of P.W.5 to P.W.7, in this case, incriminating material regarding recovery of M.O.1 to M.O.6 are spoken by P.W.5 to P.W.7. However, no question been put to the accused in this regard. In fact, P.W.5 (Parameswaran) P.W.6 (Chandrasekaran) and P.W.7 (Anandan) are very crucial witnesses for the prosecution who have witnessed the recovery of stolen money from the accused persons on 21.05.2010 and recovery of tell-tale evidence left by them at SOC. Since the case revolves around robbery alleged to have been occurred on 14.04.2010 and recovery of money robbed, the failure of the trial Court to put appropriate questions regarding incriminating evidence spoken by P.W.5 and P.W.6 is fatal to the case of the prosecution. Therefore, on this sole ground, the accused is entitled for acquittal. 16. Accordingly, this Criminal Appeal is allowed. The conviction and sentence passed by the Learned II Additional District and Sessions Judge, Vellore at Ranipet in S.C.No.250 of 2010, is hereby set aside. Fine amount paid if any, shall be refunded to the accused. Bail Bond executed if any, shall stand cancelled. If the custody of the appellant is not required in any other case, the appellant/accused shall be set at liberty forthwith.