Madras High Court
Vendamani vs The State on 20 December, 2017
Author: V.Bharathidasan
Bench: V.Bharathidasan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date: 20.12.2017
CORAM:
THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN
Crl.A.No.936 of 2007
1.Vendamani
2.Ragavan ... Appellants
vs.
The State, rep. by
The Inspector of Police,
Kanakamma Chathiram Police Station,
Thiruvallur District. ... Respondent
Criminal Appeal preferred under Section 374(2) Cr.P.C., against the judgement dated 21.08.2007 passed by the learned Additional District and Sessions Judge/Fast Track Court No.V, Thiruvallur in S.C.No.363 of 2006.
For Appellants : Mr.Vivekananthan
For Respondent : Mr.R.Sekar
Government Advocate
JUDGMENT
The accused 2 and 4, in Sessions Case No.363 of 2006, on the file of the learned Additional District and Sessions Judge/Fast Track Court No.V, Thiruvallur, are the appellants herein. Totally, there are five accused in this case. They stood charged for offence under Sections 449, 302, 396 and 395 r/w 397 IPC. The trial Court, by judgment dated 21.08.2007, found A-1 to A-4 guilty for the offence under Sections 448 and 395 IPC and sentenced them to undergo rigorous imprisonment for one year and to pay a fine of Rs.1000/- each, in default, to undergo simple imprisonment for one month for the offence under Section 448 IPC and sentenced them to undergo 7 years rigorous imprisonment and to pay a fine of Rs.3000/- each, in default to undergo simple imprisonment for two months for the offence under Section 395 IPC and they were acquitted from the charges under Sections 302, 396 and 395 r/w 397 IPC. Challenging the above said conviction and sentence, the accused 2 and 4 are before this Court with this appeal.
2. The case of the prosecution, in brief, is as follows:-
(i) P.W.1 was the wife of the deceased Subramaniya Raja. They were residing at Arumbakkam Village, Tirutani Taluk. P.W.9 is their son. The deceased was working as Headmaster in the High School at Venkalathur. On 22.09.2003 at about 9.00 p.m., the deceased left for his agricultural field to take bath in a motor pumpset and P.W.1 watching T.V. inside the house. At that time, 4 persons trespassed into their house, covering their face with cloth, and attacked P.W.1, and ask her to open the almirah, then stolen a sum of Rs.11,500/-, and also removed necklace, ear stud and other golden ornaments from P.W.1. At that time, P.W.9 and others came there immediately the accused escaped from the scene of occurrence, P.W.9 chased the accused, but they escaped. Before that, the accused told P.W.1 that, they have murdered her husband. Immediately, she went to the agricultural field and found her husband died with bleeding injuries all over the body. Then, she went to the police station and filed a complaint.
(ii) P.W.22, the Sub Inspector of Police working in the respondent police station, on receipt of the complaint from P.W.1, registered a case in Crime No.296 of 2003 for the offence under Sections 302, 392, 394 IPC and prepared a first information report [Ex.P37] and sent the same to the jurisdictional Judicial Magistrate Court and copies of the same to the higher officials.
(iii) P.W.24, the Inspector of Police, working in the respondent police station, on the receipt of the first information report, commenced the investigation, proceeded to the scene of occurrence, prepared observation mahazar [Ex.P3], rough sketch[Ex.P39], collected blood strained mud and sample mud in the presence of witnesses. He examined the witnesses and recorded their statements. Then, he conducted inquest over the dead body in the presence of witnesses and prepared inquest report, and sent the dead body to the Government Hospital for postmortem autopsy. P.W.24 also seized a motor cycle bearing Registration NO.TN-49-X-4302 under seizure mahazar, he invited the finger print expert to take the fingerprint in the scene of occurrence. A sniper dog also came to the scene of occurrence during the course of investigation, there was no result.
(iv) Later on P.W.24 arrested the first accused, on such arrest, he voluntarily gave confession, and based on the disclosure statement, he recovered a sum of Rs.3,000/-, a bracelet, a wrist watch and also an ear stud from the father of A-1. Based on the information given by A-1, P.W.24 arrested the second accused and on such arrest, he has voluntarily given a confession, based on the disclosure statement, he recovered a sum of Rs.2,000/-, a wrist watch and a knife from him. Then, on further information, he arrested the 4th accused at Sholinger bus stand and on such arrest he voluntarily given confession, based on the disclosure statement, he recovered a sum of Rs.800/-, wrist watch and a knife in the presence of witnesses. Then, P.W.24 arrested the 5th accused and on such arrest he has voluntarily given confession, and based on the disclosure statement, he recovered a sum of Rs.1000/- from him.
(v) In the mean time, P.W.20, the Doctor working in the Government Hospital, Tirutani, conducted postmortem autopsy on the dead body of the deceased and found the following injuries.
Contusion on the knee, Bleeding from both the legs and there was a external injuries on the head. 50 to 80 ml. of blood inside the head. contusion on the front part of the brain. Chambers of heart were empty. Hears was swollen. The liver, spleen and kidneys were congested. Stomach blotted.
He issued post mortem certificate Ex.P35.
(vi) P.W.23, the Inspector of Police, continued the after the investigation, taken the A3 under police custody and in the police custody, the 3rd accused voluntarily given confession, based on the disclosure statement, he recovered wooden log and sent the 3rd accused for judicial custody. and thereafter, he handed over the case to P.W.24. P.W.24, continued the investigation, examined the witnesses and Doctor, who conducted postmortem autopsy and recorded their statements, after completion of investigation, he laid charge sheer.
3. Based on the above materials, the Trial Court framed charges as detailed above and the accused denied the same as false. In order to prove its case, the prosecution examined as many as 24 witnesses, exhibited 43 documents and 23 material objects were marked.
4. Out of the said witnesses examined, P.W.1 is the wife of the deceased. According to her, before the occurrence, the deceased left for his agricultural field for taking bath in the motor pumpset and she was alone in the house watching the Television. At that time, the accused covered their face with cloth, and entered into her house, attacked her with hands and caused injury on her left lip and stolen the cash, wrist watch and gold ornaments. Thereafter, she went to the pumpset and found her husband dead with bleeding injuries. Then, she filed a complaint before the respondent police station. She also identified all the accused in the test identification parade conducted by the Judicial Magistrate. P.W.2 is the finger print expert, he has lifted finger print in the scene of occurrence. P.W.3 is brother of P.W.1. He came to the scene of occurrence after knowing about the occurrence. He along with P.W.1 went to the police station and filed a complaint. P.W.4 is the brother of the deceased. He came to the scene of occurrence after knowing about the same. P.W.5 is the neighbour of P.W.1 and he is hearsay evidence. P.W.6 is the Village Administrative Officer. He is witnessed to the recovery of blood stained mud and sample mud and attested the seizure mahazar Ex.P4, and recovery of motor cycle M.O.12. P.W.7 is the Head Constable working in the respondent police station. He has taken the sniper dog to the scene of occurrence. P.W.8 is another constable, he took photographs in the scene of occurrence. P.W.9 is son of the deceased. According to him, at the time of occurrence, he came from the college and the accused came out of the house, and they jumped the compound wall and ran away. Then, he saw the dead body of his father, informed the same to his relatives and he along with P.W.1 went to the police station and given complaint. He identified all the accused in the test identification parade conducted by the Judicial Magistrate. P.W.10 is the Tractor driver. After the occurrence, he came to the scene of occurrence and he informed the villagers about the occurrence. P.W.11 is relative of the deceased, he turned hostile. P.W.12 is the Village Administrative Officer. He is witnessed to the confession statement of the second and fourth accused and recovery of stolen articles. He turned hostile. P.W.13 is witnessed to the arrest of the accused 2 and 4 and recovery of stolen articles. He also turned hostile. P.W.14 is the villager. He also turned hostile. P.W.15, the Judicial Magistrate No.II, Thiruvallur. He conducted test identification parade and P.W.1 and P.W.9 identified the accused 1 to 4. P.W.16 is the Head Clerk working in the Judicial Magistrate Court, Tirutani. He received the stolen articles recovered from the accused and also blood stained material objects and sent the blood stained material objects for chemical examination. P.W.17 is the Scientific Officer working in the Forensic Lab Department. He examined the visceral parts of the deceased and he opined that there is no poisons substance. P.W.18 is the Village Administrative Officer. He is witnessed to the arrest of the third accused and recovered wooden log, cash from third accused. P.W.19 is Head Constable working in the respondent police station. He identified the dead body for postmortem autopsy and after postmortem, he submitted the body to the relatives of the deceased. P.W.20 is Doctor working in the Government Hospital. He conducted postmortem autopsy and issued postmortem certificate. P.W.21, the Assistant Scientific Officer, Forensic Lab Department. He examined the blood stained soil and sample soil and gave report. P.W.22, the Sub Inspector of Police working in the respondent police station. On receipt of the complaint, registered the case, prepared first information report and sent the same to the Judicial Magistrate Court, copies of the same to the higher officials. P.W.23 is the Inspector working in the respondent police station, he has taken custody of the third accused and on such police custody, he recovered the stolen articles. P.W.24 is the Inspector of Police working in the respondent police station. On receipt of the first information report, proceeded to the scene of occurrence, prepared observation mahazar and rough sketch, conducted inquest on the dead body, arrested the accused and recovered the stolen articles and sent the accused for judicial custody, examined the witnesses and Doctor, who conducted post mortem autopsy and recorded their statements and after completion of the investigation, he filed the charge sheet.
5. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., they denied the same as false. Their defence was a total denial. The accused did not examine any witness nor marked any documents.
6. Considering the above materials, the Trial Court convicted and sentenced the accused for the offences as stated in the first paragraph of this judgment. Challenging the above said conviction and sentence, the accused is before this Court.
7. I have heard Mr.Vivakananthan, the learned counsel appearing for the appellant and Mr.R.Sekar, the learned Government Advocate appearing for the State and I have also perused the records carefully.
8. The learned counsel appearing for the appellants would contend that the prosecution miserably failed to prove the charge under Section 395 IPC. The trial Court, after disbelieving the evidence of P.Ws.1 and 9, acquitted the accused for the offence under Sections 302 and 396 IPC and convicted the accused/appellants under Section 395 IPC. The learned counsel for the appellants further contended that the prosecution has failed to prove the recovery of material objects from the appellants and as the recovery witnesses, namely, the Village Administrative Officer and another witness also turned hostile. Even though, P.W.1 said to have suffered injuries, but no weapon was recovered from the accused and no weapon was marked before the trial Court. In absence of any such evidence, the appellants cannot be convicted under Section 395 IPC and thus he prays for allowing this appeal.
9. Per contra, the learned Government Advocate, appearing for the respondent submitted that P.W.1 is the eye witness in this case. Her evidence is supported by P.W.9, her son. The Stolen materials were also recovered from the accused and test identification parade was conducted by the Judicial Magistrate and in the test identification parade, P.W.1 identify all the accused and all the stolen articles were recovered from the accused. It is the evidence of P.W.1 that she suffered injuries and she was attacked by the accused and caused injuries. Considering all those materials, the trial Court rightly convicted the accused/appellants and hence he prays for dismissing the appeal.
10. I have considered the rival submissions.
11. P.W.1 is the victim in this case. According to her, at the time of occurrence, she was alone in her house, her husband left the house for taking bath in a motor pumpset. At that time, all the accused, covered their face with cloth, came in side the house, attacked her and caused bleeding injuries in her lip and they have stolen the gold jewels, writ watch, and cash available from the house. Thereafter, she came to know that her husband was murdered by the accused near by pumpset. Then, she filed a complaint before the respondent police station. Subsequently, the accused were arrested and some of the stolen articles were recovered from all the four accused. The trial Court, after trial, acquitted the accused/appellants for the offence under Sections 302 and 396 IPC and convicted the accused/appellants under Section 395 IPC on the ground that they have committed dacoity and punished them under Section 395 IPC.
12. Section 391 IPC deals with decoity as follows:
"Dacoity, When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".
But, in this case, even though originally there are five accused and the 5th accused was acquitted from all the charges and convicted the appellants/accused for the offence under Section 395 IPC.
13. Now, the next question is whether the appellants can be convicted for robbery. The robbery has defined under Section 390 IPC and its read as follows:-
Robbery:- In all robbery there is either theft or extortion.
When theft is robbery:- theft is "robbery"if, in order to the committing of the theft, or in committing 'the theft' or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes, or attempts to cause to any persons death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
14. In order to prove the robbery, the prosecution has established, while committing theft, the accused voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. In the instant case, according to P.W.1, at the time of occurrence, all the accused came inside the house and attacked her with hands and she caused injuries in her lips, but she was not subjected to any, medical examination, it is only the oral evidence of P.W.1 that she has suffered injuries. Apart from that, a knife said to have been recovered from the accused by the prosecution and that knife was not marked before the trial Court. The witness to the arrest and recovery, namely, the Village Administrative Officer and another witness have turned hostile. In the above circumstances, I am of the considered view that the prosecution has failed to prove the charge under Section 390 IPC. Hence, the appellants cannot be convicted for robbery also.
15. Now, the question is, what was the offence that was committed by the accused/appellants for the said act? It is the evidence of P.Ws.1 and 9 that some gold articles were stolen from their house and the same was recovered from the accused. P.W.1 identify all the accused in the test identification parade conducted by the Judicial Magistrate and also identified the stolen articles . Even though the mahazar witnesses turned hostile, I am of the considered view that from the evidence of P.Ws.1 and 9 that the prosecution has proved that it is only these accused has stolen the properties from the house of P.W.1. In the above said circumstances, both the appellants are liable to be convicted under Section 380 IPC for the theft of cash and other articles from the house of P.W.1.
16. Turning to the quantum of punishment, the learned counsel appearing for the appellants submitted that both the accused/appellants are poor persons and they have no bad antecedence and subsequent to the alleged offence also they have not committed any offence and the second accused has involved in the road accident and loss his one leg and they have to maintained big family. Having regard to the mitigating circumstances, I am of the considered view that reducing the sentence of imprisonment to the period of sentence already undergone with a fine of Rs.4000/- each would meet the ends of justice.
17. In the result, the Criminal Appeal is partly allowed. The conviction and sentence imposed on the appellants for an offence under Section 395 IPC., is hereby set aside and instead they are convicted under Section 380 IPC and the period of sentence is modified to the period of sentence already undergone by them. So far as the offence under Section 448 IPC is confirmed and the sentence is reduced to the period of sentence already undergone by them. The fine amount imposed by the Court below is confirmed.
20.12.2017
rrg
Index : Yes/No
Internet : Yes/No
To
1.The Additional District Judge,
Fast Track Court No.V,
Thiruvallur.
2.The The Inspector of Police,
Kanakamma Chathiram Police Station,
Thiruvallur District.
3.The Public Prosecutor,
High Court, Madras.
V.BHARATHIDASAN.J.,
rrg
Crl.A.No.936 of 2007
20.12.2017