Madras High Court
Sivakumar : Revision vs State By on 9 April, 2018
Author: T.Krishnavalli
Bench: T.Krishnavalli
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.04.2018
JUDGEMENT RESERVED DT: 28.03.2018
JUDGEMENT DELIVERED DT: 09.04.2018
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI
Crl.R.C(MD)Nos.43 of 2005 and 276 of 2005
Sivakumar : Revision
Petitioner/A1
Ilangovan : Revision
Petitioner/A2
Vs.
State by
Inspector of Police,
K.Paramathi,
Thenilai Police Station,
Karur District.
(Crime No.49 of 2001) : Respondent/Respondent/
Complainant
Prayer: Criminal Revisions have been filed under Sections 397 r/w 401
of Criminal Procedure Code, against the judgment passed by the Sessions
Judge, Karur in C.A.No.116 of 2004, dated 27.12.2004, confirming the judgment
passed by the Assistant Sessions Judge, Karur, in S.C.No.99 of 2002, dated
20.10.2004.
!For Revision Petitioner : Mr.D.Saravanan
(Both cases)
^For Respondent : M/s.M.Anandha Devi
(Both cases) Government Advocate
(Criminal side)
:COMMON JUDGMENT
These Criminal Revisions are directed against the judgment passed by the Sessions Judge, Karur in C.A.No.116 of 2004, dated 27.12.2004, confirming the judgment passed by the Assistant Sessions Judge, Karur, in S.C.No.99 of 2002, dated, 20.10.2004.
2.The case of the prosecution is that the accused persons conspired together and committed dacoity of Rs.7,52,587/- from the broiler chicken vendor. The Inspector of Police, attached to Thenilai Police Station filed a final report under Sections 120-B, 365, 397, 403 and 419 IPC against the accused examining the witnesses.
3.In the trial court, 15 witnesses were examined and 32 documents and Mos.1 to 15 were marked. When the accused was questioned about the incriminating circumstances, they denied the same. The trial court convicted A1 to A5, A7 and A8 and sentenced them to undergo 5 years of RI and to pay a fine of Rs.1000/-, in default to undergo 6 months SI.
4.Aggrieved by the conviction and sentence passed by the trial court, A1 to A5, A7 filed an appeal in C.A.No.116 of 2004, which was heard by the Sessions Judge, Karur. The first appellate Court confirmed the judgment of conviction and sentence passed by the trial court. Aggrieved by the concurrent findings of the courts below, A1 and A2 are before this court.
5.The learned counsel for the revision petitioners/A1 and A2 submitted that the prosecution has failed to establish the ingredients required for the alleged offence with which they stood charges and none of the witnesses have spoken that the accused had committed the offence and there is no specific allegation against the accused and the eye witnesses are interested witnesses. It is further submitted that there was a delay of 16 hours in lodging the complaint and registering the FIR, which was not explained properly and the evidence of PW1 and PW2 are self contradictory in nature in identifying the accuse, even though they were cited as eye witnesses and in this case, PW1 had turned hostile and stated that he had given the complaint orally, which is contradictory to the evidence of PW14 and Ex.P21, which form basis of the case and PW32 the Judicial Magistrate stated that PW1 and PW2 identified 6 accuses, which is contrary to the complaint and the evidences given by PW1 and PW2 and the prosecution has failed to prove the case beyond reasonable doubt and the revision petitioners/A1 and A2 are entitled to acquittal and prays that the criminal revisions may be allowed.
6.On the other hand, the learned Government Advocate (Criminal side) appearing for the respondent/State submitted that both the Courts below appreciated the evidence in a proper manner and believed the evidence of the eye witnesses and having regard to the nature of the offence, convicted the revision petitioners/A1 and A2, which does not require any interference by this court and the revision petitioners are not entitled for acquittal and prays that the criminal revisions may be dismissed.
7.Heard both sides and perused the materials available on record.
8.PW1 is the Complainant and he gave Ex.P1 Complaint. PW1 in his complaint stated that he was working as driver in the Van bearing registration No.TN-39-K-6644 and he loaded chicken in the Van to Thanjavur and after returning to Pongalur on 08.07.2001 at Karur-Kovai main road near Karaipalayam, he stopped his Van and he and his cleaner took tea in a tea stall and when they reached Semmandapalaym, one Ambassador Car overtook his Van and restrained the Van and from the Car, two persons came and told that he dashed against a two wheeler and the rider of the two wheeler was dead and asked him to come to Mayanoor Police Station and it was refused by him, he and his Cleaner were forcibly taken by the two persons, who came in the Car and then another person, who was in the Car came and took the Van and both the Car and Van proceeded towards east and when the Car reached near Karur A.R Camp, he asked the driver of the Car to stop the Car for answering natural call and then, they took the Car with his Cleaner and then, they dropped his Cleaner near Uppida Mangalam Branch Road and they took their Van and the value of the Van is more than one lakh and they searched for the Van in several places and they have not found the Van and then, he gave the complaint Ex.P1.
9.PW1 during his evidence stated that on 08.07.2002, while he with his Cleaner returned to Pongalur, near Karaipalayam their Van was restrained by an Ambassador Car and two persons in the Car came and took him and his Cleaner in the Car and then, one Ravichandran from the Car came and took the Van and when, they reached Karur AR Camp, he asked the driver to stop the Car for answering natural call and while he got down from the Car, they drove the Car and then, they dropped the Cleaner and afterwards, he and the Cleaner went to the police station and gave the complaint and further, he identified the accused in the identification parade.
10.In this case, PW1 turned hostile and did not support the case of the prosecution. It is settled law that the hostile evidence cannot be refused in toto. PW1 in his evidence stated that he identified seven accused during the identification parade and in the Court. Further, PW1 stated that the accused unlawfully took away their Van. Hence, PW1's evidence cannot be refused in toto. Hence, PW1's evidence is corroborated with the contents found in Ex.P1 Complaint.
11.PW2 is the load man. PW2 stated during his evidence that on 08.07.2001, while he and PW1 returned to Pongalur and while proceeding on Karur-Kovai Road near Karur AR Camp, two persons came from the Car and asked him and PW1 to come to the police station, since they caused injury to some persons by way of accident and the accused unlawfully took away their Van and PW1 asked to stop the Car for answering natural call and he was dropped and the above Car went and then, they searched for their Van and not found out and then, PW1 gave the complaint. PW2 also identified all the accused. Hence, PW1 evidence is corroborated with the evidence of PW2.
12.PW3 is the Manager working in Pioneer Company, Pongalur. PW3 deposed that they used their vehicle to load chicken to several places and PW1 through phone made a communication that the Van bearing registration No.TN39-K-6644 was taken away by somebody and he and PW1 went to the police station and the police came to the place of occurrence and prepared magazar.
13.PW4 is running a tea stall in Karaipalayam. He deposed that prior to 1-1/2 years, two persons came and took tea in his tea stall and in the next day, he heard the vehicle in which the chicken were loaded found stolen.
14.PW5 is the Branch Manager of Thanjavur Pioneer Chicken Mart. PW5 stated that their Head Office is at Pongalur and on 08.07.2001 through the Van bearing registration No.TN-39-K-6644, chickens were loaded and cash of Rs.7,25,587/- was sent in the locker of the above vehicle, but he heard that the above vehicle was taken away by some persons and it was found missing. PW5 during his cross examination stated that he gave details in respect of the amount sent in the vehicle bearing Registration No.TN-39-K-6644.
15.PW6 is working as Transport Manager in the Pioneer Chicken Mart. PW6 stated during his evidence that on 08.07.2001, the vehicle bearing registration No.TN-39-K-6644 was unlawfully taken by some persons and when the driver of the above vehicle stated the occurrence to him and then, he went to the police station and PW1 gave complaint and the amount of Rs.7,52,782/- was found missing and in his office, they found that A1 was not found in their office and he was not turned up and he was un-authorisedly absent. Hence, PW1's evidence is corroborated with the evidence of PW2 to PW6.
16.PW7 is working as Driver in the Pioneer Chicken Mart at Pongalur. PW7 stated that the Time Keeper directed him to call accused Sivakumar to attend the duty and when he went to the house of the accused Sivakumar, it was found that the door was locked inside and from inside of the house, he heard that three persons talked to each other and stated that whether the money was coming in the lorry or in the chicken loaded Van and for that, the accused Sivakumar replied that the money was brought in the chicken loaded vehicle and he called the accused Sivakumar and told him that he was called upon to duty, but the accused Sivakumar stated that he will not come to duty and after two days, he heard that the amount brought in the Chicken loaded Van was stolen. From the evidence of PW7, it reveals that already all the accused conspired together to steal the amount brought in the chicken loaded Van.
17.PW8 is the arrest and recovery witness. PW8 stated that on 8.08.2001, he and Loganathan went to see the accused Sivakumar, but the accused Sivakumar was not in his house and while they returned from the house of the accused Sivakumar, they saw that the police arrested the accused Sivakumar and he gave confession to the police and on the basis of the confession, he handed over Rs.40,000/- and it was recovered by way of Athachi and the police arrested the accused Ramesh and he gave confession and on the basis of the confession, he handed over Rs.1,000/- and it was recovered by way of Attachi and then, the police arrested the Accused Muniyandi and he gave confession and on the basis of the confession, he handed over Rs.30,000/- and the same was recovered by way of Attachi and the police arrested the accused Ravichandran and he gave confession and on the basis of the confession, he handed over Rs.12,000/- and identified the Ambassador Car and the police recovered Rs.12,000/- and the Ambassador Car by way of Attachi and the police examined one Kala and she gave statement and it was recorded and then, the said Kala handed over a plastic bag containing hammer (Rj;jp) and tang (btl;oUk;g[) and the above materials objects were recovered by way of Attachi.
18.PW10 is the relative of the accused Kathavarayan. PW10 turned hostile and did not support the case of the prosecution.
19.PW11 is working as driver in Malayampalayam. He deposed that that the accused Settu and Ilangovan gave confession and on the basis of the confession, Rs.40,000/- by way of Attachi. Further, the police arrested the accused Sheik Mohammed and he gave confession and on the basis of the confession, Rs.25,000/- was recovered, which was marked as MO12.
20.PW12 is the another arrest and recovery witness. PW12 stated that police arrested the accused Kathavarayan and he gave confession and on the basis of the confession, the police recovered Rs.2,000/- from the accused Kathavarayan.
21.PW15 is the Judicial Magistrate, who conducted the identification parade. PW15 stated that PW1 and PW2 identified A1 to A6.
22.On proper appreciation of the evidence and careful perusal of the document filed, in this case, both the courts below have come to the conclusion that the prosecution has proved the case beyond reasonable doubt.
23.This court finds no infirmity or illegality in the findings of the courts below. However, considering the facts and circumstances of the case and the punishment imposed on the revision petitioners/A1 and A2, the conviction and sentence imposed on the revision petitioners/A1 and A2 is reduced to one year of R/I for the offence under Section 395 IPC. In respect of the fine amount, the finding of the courts below are confirmed. The period of sentence already undergone by the revision petitioners/A1 and A2 is set off under section 428 of Cr.P.C.
24.In the result, this criminal revisions are partly allowed.
To,
1.The Assistant Sessions Judge, Karur.
2.The District Sessions Judge, Karur.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.