Madras High Court
Thiyagu @ Thiyagarajan vs State on 8 October, 2013
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08/10/2013 C O R A M THE HONOURABLE MR.JUSTICE M.VENUGOPAL Crl.A.No.24 of 2006 Thiyagu @ Thiyagarajan ... Appellant Vs State rep. by The Inspector of Police B 2 R.S.Puram (Crime) Police Station Coimbatore. ... Respondent PRAYER: Appeal filed under Section 374 (2) of the Criminal Procedure Code to call for the records and set aside the conviction and judgement dated 30/11/2005 made in S.C.No.174 of 2005 on the file of the Learned Additional District & Sessions Judge, Fast Track Court No.III, Coimbatore and acquit him. For Appellant : Mr.P.M.Duraiswamy For Respondents : Mr.P.Govindarajan, APP J U D G M E N T
********** The Appellant/A.1 has preferred the instant Criminal Appeal as against the conviction and sentence dated 30/11/2005 in S.C.No.174 of 2005 passed by the Learned Additional District and Sessions Judge, Fast Track Court No.III, Coimbatore.
2. It comes to be known that the Appellant/A.1 viz., Thiyagu @ Thiyagarajan and the Second Accused Karu @ Nagarajan were apprehended while the Third Accused Vellian @ Jabarulla was absconding and as such the trial Court in its Common Judgment in S.C.No.174 of 2005 and S.C.No.219 of 2005 dated 30/11/2005 had stated that the Original P.R.C was committed earlier (viz., P.R.C.No.26 of 2004) and later, P.R.C.No.19 of 2005 was committed at a later stage.
3. The trial Court while delivering the Common Judgment in S.C.No.174 of 2005 and S.C.No.219 of 2005 (committed on 28/4/2005 and on 7/7/2005 in P.R.C.No.26 of 2004 and 19 of 2015) found the Appellant/First Accused (in Crl.a.No.24 of 2006) guilty and in respect of an offence under Section 392 r/w. Section 397 of Indian Penal Code and was awarded with the punishment of seven years Rigorous Imprisonment and was also directed to pay a fine of Rs.1,000/-, in default of payment of fine, he was directed to undergo default sentence of four months simple imprisonment.
4. The trial Court acquitted the Second Accused (in S.C.No.194 of 2005) and Third Accused (in S.C.No.219 of 2005) in respect of the charge for offence under Section 392 r/w. 397 IPC.
5. The case of the prosecution is that the Appellant/First Accused along with Second and Third Accused, on 6/5/2004, at about 21.50 hours at Driver's Bus stop, Sundapalayam Road, Coimbatore City, joined together with a common intention to commit robbery, stopping the Town Bus Route No.58. The Appellant/A.1, boarded the bus from back side and ordered the bus driver to stop the bus and broke left side top fixed glasses into pieces and torn the rubber beeding at the middle, cut the Bell Rope at the rear with an sickle and at the point of Aruval, threatened the Driver Murugesan (P.W.2) to stop the Bus and made an attempt to assault the Conductor/Anbarasu (P.W.1) and robbed away the Cash Bag containing cash of Rs.3,058.50 and thereby, the Appellant/A.1 and the Second and Third Accused, committed the offences punishable under Section 392 r/w. 397 IPC and that the Respondent/Inspector of Police, B.2 R.S.Puram (Crime) Police Station, Coimbatore, after completing the investigation, laid the charge sheet.
6. On the basis of the acquisition levelled against the Appellant/A.1 and the Second and Third Accused, the trial Court framed necessary charges for the offence under Section 392 r/w. 397 IPC and the same was read over and explained to them. However, the Appellant/First Accused and the Second and Third Accused, denied the charges framed against them and claimed to be tried.
7. Before the Trial Court, on the side of the Prosecution Witnesses, P.Ws.1 to 12 were examined and Exs.P.1 to P.10 were marked. Also, M.Os.1 to 3 were marked on the side of the Respondent/Prosecution.
8. When the Appellant/Accused, Second and Third Accused were questioned under Section 313 of Cr.P.C., in regard to the incriminating circumstances appearing in evidence against them, they denied their complicity in the crime.
9. The Trial Court, on an analysis of both oral and documentary evidence and resultantly found the Appellant/A.1 guilty under Section 392 r/w. 397 IPC and sentenced him to undergo Rigorous Imprisonment for a period of 7 years and also imposed a fine of Rs.1,000/- in default of payment of fine further directed him to undergo Simple Imprisonment for a period of four months. However, the Trial Court, acquitted the Second and Third Accused.
10. Being dissatisfied with the Conviction and Sentence passed by the trial Court in S.C.No.174 of 2005 dated 30/11/2005 on the file of the Learned Additional District and Sessions Judge (Fast Track Court No.3), Coimbatore, as an aggrieved person, the Appellant/First Accused has projected the instant Appeal before this Court.
11. At the outset, it is to be pointed out that this Court primarily concerned with the present Criminal Appeal No.24 of 2006 (in S.C.No.174 of 2005 on the file of the trial Court projected by the Appellant/First Accused.
12. The Learned Counsel for the Appellant/A.1 submits that the Respondent Police registered the First Information Report against unknown Accused in Crime No.677 of 2004 dated 6/5/2004 in respect of the alleged offence under Section 392 r/w. 397 IPC and later, on the arrest of the Second Accused, the Appellant/A.1's name was implicated.
13. The Learned Counsel for the Appellant/A.1 urges before this Court that the Appellant/A.1 surrendered before the Learned Judicial Magistrate No.VII, Coimbatore and the Respondent took him in Police custody and recorded a confession purported to have been given by him. Further, the Respondent/Police filed a charge sheet against the Appellant/A.1 and two other Accused, wherein the Third Accused was shown as absconding. Moreover, in respect of the First Appellant/A.1 and Second Accused, the case was committed to Sessions and numbered as S.C.No.174 of 2005 and in respect of the absconding Accused, viz., A.3 and after completion of the Committal Proceedings, the case was numbered as S.C.No.219 of 2005.
14. The Learned Counsel for the Appellant/A.1 brings it to the notice of this Court that the Appellant/A.1 paid the fine amount of Rs.1,000/- imposed by the trial Court on 5/12/2005 and strenuously contends that the trial Court had failed to take into consideration that the Appellant/A.1's name had not found place in the First Information Report and admittedly, no money was recovered from his possession.
15. The Learned Counsel for the Appellant/A.1 contends that though the Appellant/A.1 surrendered before the Court on 11/5/2004, the Test Identification Parade was conducted in jail only on 12/6/2004 that too long after Police custody.
16. It is the plea of the Appellant/Accused that the Defacto complainant had admitted (in cross-examination) that the Appellant/A.1 was shown to him in the Police Station before the conduct of Test Identification Parade.
17. Furthermore, the Appellant/A.1 had also stated before the Learned Magistrate (P.W.8) who conducted Test Identification Parade that P.W.1 and P.W.2 had seen him while he was in Police custody. As such, the main contention advanced on behalf of the Appellant/A.1 is that the evidence of Test Identification Parade is of no value and as such, it could not be relied upon by a Court of Law.
18. That apart, the Learned Counsel for the Appellant/A.1 projects an argument that except P.W.1 and P.W.2 viz., Conductor and Driver of the Bus and the Official Witnesses, all other witnesses turned hostile including P.W.3 a Bus Passenger. As such, the story of the prosecution could not be relied upon essentially based on the evidence of the interested witnesses viz., P.W.1 and P.W.2.
19. The core submission of the Learned Counsel for the Appellant/A.1 is that in respect of an offence under Section 392 r/w. 397 IPC when co-accused A.2 and A.3 were acquitted by the Trial Court, the Conviction against the Appellant/A.1 could not be sustained, in view of the fact that no money was recovered from him.
20. According to the Learned Counsel for the Appellant/A.1, the alleged broken glass of the bus and the cut off cord of the bus bell were not seized by the Police to establish the alleged occurrence. Also that no photograph of the damaged bus was available on record.
21. Continuing further, the Learned Counsel for the Appellant/A.1 submits that the trial Court had omitted to see the vital contradiction between the evidences of P.W.1, P.W.2, P.W.11 and P.W.12 (Investigating Officer) particularly in respect of the First Information Report received by the Respondent Police.
22. The Learned Counsel for the Appellant/A.1 contends that the trial Court should have seen that P.W.10, the witness for the alleged confession of the Appellant/A.1 had turned hostile and therefore, the confession and recovery of M.O.2 were not established by the Prosecution.
23. Lastly, it is the submission of the Learned Counsel for the Appellant/A.1 that before the trial Court, there is no material like Trip Sheet, Tickets Record, etc., to establish the collection amount alleged to have robbed by the Accused.
1.Conversely, the Learned Additional Public Prosecutor for the Respondent contends that the trial Court had appreciated the oral and documentary evidence available on record and came to the resultant conclusion that the charge levelled against the Appellant/A.1 was proved beyond iota of doubt and accordingly, found him guilty and imposed a sentence of seven years Rigorous Imprisonment besides imposing a fine of Rs.1,000/- in default of payment of said fine, also directed him to undergo Simple Imprisonment for a period of four months under Section 392 r/w.397 IPC and as such, the Judgment of the trial Court in S.C.No.174 of 2005 dated 30/11/2005 does not suffer from any impropriety or illegality in the eye of law.
2.
25. At this juncture, for a fuller and better appreciation of the merits of the case, this Court makes a pertinent and useful reference to the evidence of P.W.1 to P.W.12.
26. P.W.1 (Conductor of the Bus) in his evidence had deposed that he works as Conductor in the Government Transport Corporation Bus in Route No.73 B and on 6/5/2004, at about 9.15 p.m., he served as a Conductor in Bus bearing No.0428/-57 Route and the said Bus was to proceed from Town Hall to Narasipuram and when the Bus was proceeding towards Town Hall from Narasipuram at about 8.15 p.m., at Poosaripalayam, the Driver stopped the bus and the passenger alighted from the Bus at about 9.15 p.m., and he rung the bell, so as to enable the Bus to proceed further and at that time on the back of the Bus, a passenger knocked the Bus and got into the Bus and informed that the Passengers were coming. Therefore, he asked for stopping of the Bus and the said passenger was Appellant/A.1.
27. It is the further evidence of P.W.1 that even after sometime, no one passenger boarded the bus and at that point of time, the passenger in the bus stated that if no passenger had come for the next bus, time was ticking and directed to come in other bus. After hearing this, the Appellant/A.1 took sickle from the back of his shirt and attempted to cut the said passenger, who escaped after shouting.
28. The Appellant/Accused broke the Kotar glass on the bask side stairs of the bus and also cut the bell rope. Moreover, the Appellant/A.1 went to the Driver and showed him the sickle and the Driver stopped the Bus. Later, the Appellant/A.1 made an endeavour to cut him with Aruval, but he escaped.
29. Added further, P.W.1 went on to add in his evidence that when passengers raised noise, the Appellant/A.1 grabbed his Collection Bag and went away and that in the said bag, there was a collection amount of Rs.3,058.50 and later, he went to the Police Station and gave Ex.P.1 complaint. The Bag, which was grabbed and taken away from him by the Appellant/A.1 was marked as M.O.1. The sickle was marked as M.O.2. The three hundred rupee currency notes shown to him was marked as M.O.3 and M.O.1 Collection Bag was shown by the Constable at the Police Station one week after the occurrence. Also, that the sickle was also shown to him by the Police, but he had not numbered the date on which the sickle was shown to him. He also identified the Appellant/A.1 at the Central Jail in the presence of Judicial Magistrate twenty days later, after the occurrence and on the day of occurrence, the bus Driver who was with him was Murugesh.
30. P.W.1 (in his cross-examination) had stated that on the day of occurrence, he had in his possession the Trip Sheet, which he handed over to the Constable and that they were to inform to the P.R.O when these kind of problems arose and in case of necessity, if information was given through telephone, he used to come to the scene of occurrence and accordingly, he came to the spot and he along with Driver furnished him in writing as to what had happened and the Government Officials and P.R.O had not come along with him to the Police Station and he went to the Police Station and the Officials took him to the scene of occurrence and the Officials spoke to the Police Station over the phone and the Officials directed him to go to B.2 Police Station and accordingly, they took the Bus to B.2 Police Station.
31. P.W.1 had stated in his evidence that Sub-Inspector of Police came to the scene of occurrence when information was given to him from the Control Room over telephone and the Sub-Inspector of Police enquired about the occurrence and he narrated the incident to him which was written by him, in which he and Driver signed and also the Officials had affixed there signatures as witnesses and that after receipt of the complaint from the scene of occurrence, they took the bus and went to the Police Station and that the Driver and Officials came along with them and in Ex.P.1 Complaint, his signature was there and in Ex.P.1, the signature of the Driver and Officials were not there.
32. P.W.1 also added in his evidence that in M.O.1 the number of the Bus was not mentioned and also in the complaint, he had not spoken about the Identification Mark of the sickle and on 10th, he and the Driver of the Bus went to the Police Station and identified the collection Bag and the cash amount and M.O.3 was the collection amount on the day of occurrence and they had seen the Appellant/First Accused in the Police Station and in the Police Station, they informed that in Identification Parade, Identification was to be made/done and in the Central Prison, he identified the Appellant/A.1.
33. P.W.2 (Driver of the Bus) in his evidence had stated that he knew the Appellant/A.1 and on 6/5/2004, he drove the Bus as Driver in Route No.58 belonging to the Tamil Nadu Government Transport Corporation and he took the Bus from Narasipuram at about 8.15 p.m., and was proceeding towards Coimbatore and in the said Bus, Anbarasan (P.W.1) was the Conductor and when he stopped the bus, so as to enable the passengers to get into the Bus, it was about 9.10 p.m and when the passengers boarded the bus and when the Conductor rang the bell, at that time, the Appellant/A.1 had indulged in wordy quarrel with the Conductor (P.W.1) and the Appellant/A.1 threatened the passengers and when the Appellant/A.1 made an attempt to cut, he jumped from the Bus and the said cut, hit the glass of the Bus and the Appellant/A.1 made an attempt to cut him with the knife and when he escaped, from the cut attack, the said cut hit the bus post.
34. P.W.2 further in his evidence had deposed that when P.W.1, Conductor made an attempt to catch hold of the Appellant/A.1, he threatened him with 'sickle ' and since P.W.1 (Conductor) jumped from the Bus, he escaped from the cut attempt and the Appellant/A.1 when he showed the 'sickle ' at that time, he pulled the cash bag of P.W.1 and the Appellant/A.1 went along with the Cash Bag. M.O.1 sickle was the one used by the Appellant/A.1 and M.O.2 was the Cash Bag which was grabbed for pulled out by the Appellant/A.1. Further, he identified M.O.1 sickle at the Police Station and they identified the Appellant/A.1 at the Central Prison, after the occurrence and that the Collection Amount was Rs.3,056/-.
35. P.W.3 in his evidence had deposed that on 6/5/2004, he boarded the Bus 58 at Narasipuram and he was sleeping and the Driver stopped the Bus at the Bus Stop and when he woke up from the Bus, he was found that the bag was pulled out from the Conductor and it was taken away but he does not know who had pulled the Cash Bag and that he was examined by the Police at the Police Station and he informed the Police that since he was sleeping, he was not aware as to what had happened. As a matter of fact, P.W.3 was treated as 'Hostile Witness" by the Trial Court.
36. P.W.4 in his evidence had stated that he knew the Third Accused and the three Accused used to come to his tea shop for taking tea and the said accused belonged to Sundapalayam area and that he was treated as 'Hostile Witness' by the prosecution.
37. P.W.5 also in his evidence had stated that he had seen the accused present in the area where he runs a shop and that he was not examined by the Police and the Police only enquired about his address. However, P.W.5 was treated as 'Hostile Witness' by the prosecution.
38. P.W.6 in his evidence had deposed that he does not know the Accused who were present and that he was examined by the Police and he informed them that he does not know about the occurrence. Indeed, P.W.6 was also treated as 'Hostile Witness' by the prosecution.
39. P.W.7 in his evidence had stated that he does not know the accused, who were present and that the Police enquired about his address and they had not enquired him any further. Accordingly, the witness P.W.7 was treated as hostile by the prosecution.
40. P.W.8 (Judicial Magistrate) in his evidence stated that on 3/6/2004, based on the requisition made by B.2 Inspector of Police and on the orders passed by the Chief Judicial Magistrate, Coimbatore in B.2 Police Crime No.677 of 2004 under Sections 392 and 397, suspected the Accused Thiyagu @ Thiyagarajan aged 23 was to be identified by the witnesses Anbarasu and Murugesan and for which an Identification Parade was ordered to be conducted and in Crl.M.P.No.4106 of 2004, the same was taken on file by the Learned Judicial Magistrate No.II and on 11/6/2004, at about 2.00 Clock in the afternoon, the Identification Parade was decided to be conducted at Central Prison, Coimbatore and accordingly, a letter was sent to the Prison and all arrangements were made on that behalf. Further, the summons was issued for production of aforesaid two witnesses at about 2.00 p.m., in the afternoon of 11/6/2004. Accordingly, on 11/6/2004, at about 2 p.m., in the afternoon, he went along with his Office Assistant Rama at Coimbatore, Central Prison and served summons to the witnesses and he verified the witnesses viz., Anbarasu and Murugesan who were present and advised them how to conduct themselves at the time of the conduct of the Identification Parade and asked them to stand outside the Prison and he along with his Office Assistant went inside the Prison and the selected playground situate in front of the dress godown room and inspected the place and chosen the same and in the Identification Parade, conducted the witnesses Anbarasan and Murugesan three times each. They identified the Appellant/A.1 by touching him. Further, when he made an enquiry with the Appellant/A.1 as to whether he had anything to say and at that time, the Appellant/A.1 informed him that the two witnesses Anbarasu and Murugesan had identified him and the Police took his photo and when he went out of the Court, the two witnesses had seen him by way of identification.
41. P.W.9 in his evidence had stated that he does not know the Accused who were present and he does not know anything about the case and further, he was not examined by the Police and he had not also signed. Accordingly, he was treated as hostile witness by the prosecution.
42. P.W.10 in his evidence had deposed that he does not know the accused who were present and he went to the Police Station in connection with a different matter and at that time, the Police were enquiring different four persons and they asked him to put one signature and since the Police informed him that they had to inform the higher officials, they obtained his signature. Accordingly, P.W.10 was treated as hostile witness by the prosecution.
43. P.W.11 (Special Sub-Inspector of Police) in his evidence had stated that on 6/5/2004, at about 22.30 hours, during the night, when he was in-charge of the Police Station, Coimbatore City, Ukkadam, City Branch 2, Tamil Nadu Government Transport Corporation City Bus TN38N-0428 bus route No.58 Bus Conductor Anbarasan, S/o. Thangamuthu came to the Police Station and lodged a complaint petition and based on the said complaint, he registered the Express First Information Report in Crime No.677 of 2004 under Sections 392 r/w. 397 of IPC and he sent the First Information Report to the Inspector of Police for further investigation and also sent the complaint, First Information Report and the original of the same to the Learned Judicial Magistrate No.I.
44. P.W.12 in his evidence (The Retired Inspector of Police) had stated that on 6/5/2004, he took up the investigation of the case in Crime No.677 of 2004 under Section 392 r/w. 397 of IPC registered by the Special Sub-Inspector Narayanan (P.W.11) and he took up the investigation from P.W.1 on the very same day and went to the scene of occurrence along with party at about 11.30 p.m., and prepared Ex.P.3 Observation Mahazar in the presence of witnesses Siva and Murugan and also prepared Ex.P.4 Rough Plan and also examined witnesses Anbazhagan, Murugan, SivaKumar, Jayaraj, Ramakrishnan, Chelladurai, Kumar, Salim, Raju, Gopi, Siva and Murugan and recorded their statements and also sent the damaged Bus No.TN38N-04 to the Motor Vehicles Inspector for inspection along with an application and also Motor Vehicles Inspector's Report Ex.P.5, he obtained and examined the Motor Vehicles Inspector and recorded his statement. Also on 18/5/2004, on the basis of information, he arrested the Accused Nagaraj and also recorded his primary confession in the presence of witnesses Zahir Hussain and Rajan and the said accused in the admitted portion of the confession marked as Ex.P.6 had stated that if he was taken, he would show bus stop, the place where the bus was stopped and robbery was committed and also the place where the bag was thrown and on the same place, he seized the cash produced by the accused Nagaraj (which was robbed by him) in the presence of aforesaid witnesses at about 1.00 p.m., in the afternoon in mahazar.
45. The further evidence of P.W.12 that on the basis of confession given by the Accused Nagaraj along with the accused and party, the accused produced the Conductor Cash Bag from the bush at Kumarasamy Lake at Karupparayar temple and the said bag was seized under Ex.P.8 Mahazar in the presence of witnesses at about 1.45 a.m., in the afternoon. Further, he came to the Police Station with the seized articles and came to the Police Station and sent the accused Nagaraj and the seized articles/properties to the Court for its custody and also examined witnesses, Zahir Hussan, Rajan and recorded their statements. He also examined the complainant Anbarasu (P.W.1) the identified properties/seized articles.
46. Continuing further, on 14/5/2004, he gave a letter to the accused Thiyagu for his appearance before the Court since he surrendered before the Learned Judicial Magistrate No.VII on 11/5/2004 and on 20/5/2004, he made a request before the Magistrate for remanding the accused and also filed an application for taking the accused to Police custody and on 21/5/2004, he took the accused in Police custody and on 21/5/2004, the appellant/accused in the presence of witnesses, Thirumurugan and Pandian, gave a voluntary confession at about 7 p.m., in R.S.Puram Police Station and the accused in the admitted portion of the confession Ex.P.9 had stated that if he was taken, he would identify the sickle which was hidden by him in the centre of wooden log in his bathroom and also the robbed the cash bag from the Conductor of the Tamil Nadu Bus No.58 and the said sickle was seized under Ex.P.10 Mahazar in the presence of witness (recorded the statements of the witnesses) and that he gave a requisition on 1/6/2004 before the Learned Judicial Magistrate for conducting the Identification Parade in respect of the Appellant/A.1 and on 12/6/2004, for identifying the Appellant/A.1 in the Identification Parade, he recorded the statements of Anbarasu and Murugan and after completion of investigation in that case on 31/8/2004, he laid the charge sheet against the accused under Section 392 r/w. 397 IPC.
47. In Ex.P.1 Complaint, P.W.1 (Conductor) had stated that on 6/5/2004 at about 8.15 p.m., during the night time, the bus was taken in trip from Narasipuram and was proceeding to Town Hall and at about 9.15 p.m., when the bus stopped at 'Drivers stop' after Poosaripalayam, a passenger got down and at that time, a person approximately aged about 28, boarded the bus at the back entrance of the bus and when he gave signal for the bus to proceed at that time, the said person shouted that the persons were coming and required the bus to be stopped, but since no one came forward to board the bus, he informed the Driver of the bus Murugesan to take the Bus further and at that time, when the bus was moving, the said person in anger, took the sickle from the backside of the shirt and broke the bus glass and also cut the bell rope with Aruval. Later with anger, he went to the Driver and showed him the sickle and threatened him to stop the bus and when he went near the driver, at that time, the said person admitted to cut him with sickle and at that time, he bent himself and escaped from the attempt. On seeing this, the passengers in the bus raised noise and at that time, the said person came to him and pulled his Cash Bag and ran away and in the Cash Bag, the daily collection of Rs.3,058.50 was there and if he could see the person, he can identify him and immediately, he and the Driver Murugan came to their office and gave information to the Police Station.
48. A perusal of Ex.P.5 the Vehicle Inspection Report shows that in Serial No.13 under the caption of 'Details regarding damage sustained by the vehicle due to incident' is mentioned as under:-
"Left side top fixed glass 1 No. (7th bay from the front) found broken into pieces and gas rubber beeding found cut/torn at lower middle portion, bell rope (Nylon) cut at rear."
49. Also, in Ex.P.5, in Serial No.20 under the 'Opinion of the inspecting officer regarding whether the incident was due to vehicle defect, road defect or both', the Motor Vehicles Inspector, Coimbatore had recorded as follows:-
"I am of the opinion that this incident was not due to any of the mechanial defects of this vehicle. The cost of damages Rs.225/- (Approximately)."
50. From the Second Accused Karu @ Nagarajan (in S.C.No.174 of 2005 on the file of the trial Court) under Ex.P.7 Mahazar, three hundred rupees notes bearing Nos.3ML453406, 3EH366855, 9AH332099 were seized in the presence of witnesses Zakhir Hussain and E.Rajan. Through Ex.P.8 Mahazar from the accused Karu @ Nagarajan, Cash Bag used by the Bus Conductor (later cash bag with three rooms) was seized and the said colour of the bag was brown.
51. From a cursory perusal of Ex.P.10 Mahazar, it comes to be known that sickle M.O.2 with total length of about 46 cms was seized from the Appellant/A.1 in the presence of witnesses Murugesan and Pandian.
52. At this stage, it is to be born in mind that Section 392 of IPC speaks of punishment for robbery. The salient features of the ingredients of Section 392 IPC are
(a). Accused committed theft
(b). Accused voluntarily caused or attempted to cause
(i). death, hurt, or wrongful restraint
(ii). fear of instant death, hurt or wrongful restraint, as per decision of the Honourable Supreme Court VENU @ VENUGOPAL AND OTHERS VS. STATE OF KARNATAKA {(2008) 3 SCC - 94}.
53. It is pertinent for this Court to make a significant mention that the prosecution must establish the following:-
(i). that the accused committed the theft (vide Section 379 for the points to be proved);
(ii). that he caused or attempted to cause to some person
(a) death, hurt or wrongful restraint; or
(b) fear of instant death, or of instant hurt, or of instant wrongful restraint;
(iii). that he did as above
(a). in committing such theft; or
(b). in order to commit such theft, or
(c) in carrying away, or attempting to carry away, the property obtained by such theft;
(iv). that he acted as in (ii) voluntarily, Or prove:
(i). that the accused committed extortion (vide Section 384 for the points to be proved);
(ii). that he was, at the time of committing it, in the presence of the person so put in fear;
(iii). that he committed it by putting that person or some other person in fear of instant death, or of instant hurt, or of instant wrongful restraint;
(iv). that he thereby induced the person so put in fear to deliver up then and there the thing extorted."
54. Ordinarily, in a Highway robbery, the value of stolen property is not the criterion whereby the quantum of punishment is to be decided. Also, that the delay in recovery of stolen property which is duly identified is not unusual and not fatal to the prosecution case, as per decision SANTOSH L.JADHAV & ANOTHER VS. STATE OF MAHARASHTRA {2008 Cri.L.J - 1861).
55. There is no straight jacket cast iron formula that after the long lapse of period, the witnesses would in no case be able to identify the clippers/robbers they had seen in the act of robbery. However, in this regard, a Court of Law is to be extremely cautious in appreciating such evidence. It cannot be gain said that the decision in each case must be made on its own peculiar facts.
56. Coming to the ingredients of Section 397 of Indian Penal Code, this Court aptly points out that the Section is intended to include the case of an individual should displays the deadly weapon to threaten/frighten his or therefore, neighbours or who make use of any deadly weapon for other similar purposes and it is apportion is not limited to cases where the weapon is employed usually for causing injury or for attempting to cause injury to another person.
57. The evidence required under Section 397 of IPC for the prosecution to prove runs as under:-
(i). the commission of robbery or dacoity;
In the case of robbery a conviction under this Section is equally good, whether the number of the accused be five or under;
(ii). that the accused used a deadly weapon; or caused grievous hurt; or attempted to cause death or grievous hurt;
(iii). that the above acts were done during the commission of robbery or dacoity."
58. As far as the present case is concerned, this Court pertinently points out that on behalf of the prosecution witnesses P.Ws.3 to 7, P.Ws.9 and 10 turned hostile before the lower Court. In fact, they had not supported the case of the prosecution, as opined by this Court. Furthermore, P.W.3 in his evidence had categorically stated that he was sleeping while driving in the bus as such he was treated as hostile witness by the trial Court.
59. In regard to the evidence of P.W.1 (Conductor of the bus) in his evidence, he had clearly identified Appellant/A.1 before the trial Court and he had also identified M.O.1 Bag. He had also identified three hundred rupee notes, which was marked as M.O.3. Also, he had stated that sickle shown to him was M.O.2. As a matter of fact, P.W.1 had clearly deposed in his evidence that the Appellant/A.1 on 6/5/2004, the day of incident had broken the kottar glass of the back side of the bus (near back stairs) and also he cut the bell rope.
60. P.W.2 (Driver) of the Bus had clearly stated in his evidence that the Appellant/A.1 threatened P.W.1 (Conductor) with Koduval (sickle) and the said Koduval (sickle) used by the Appellant/A.1 was M.O.1 (in reality, it was marked as M.O.2) and the Cash Bag (M.O.1) grabbed/by him was M.O.2.
61. Indeed, P.W.1 and P.W.2 in their evidence had spoken about the manner of occurrence and the part played by the Appellant/A.1 in her cogent, coherent and convincing fashion. Nothing was elicited on behalf of the Appellant/Accused to discredit their version of incident. To put it precisely, the evidence of P.W.1 and P.W.2 in regard to the manner of occurrence is unimpeachable in character, in the considered opinion of this Court. The recovery of M.O.2 sickle from the process of the Appellant/A.1 justifies the accusation levelled against him by the prosecution. P.W.12 after visiting the place of occurrence, prepared Ex.P.3 Observation Mahazar; Ex.P.4 Rough Sketch, subsequent to the collection of M.O.1, M.O.2 and M.O.3 under the Mahazar. P.W.11 also had deposed that the printed First Information Report was registered.
62. It is to be noted that P.W.1 (Conductor of the Bus) had lodged a written complaint dated 6/8/2004 about incident before the Assistant Sub-Inspector of Police, B.2 R.S.Puram Police Station (Crimes) Kovai, who registered a case in Crime No.677 of 2004 under Section 392 r/w. 397 of IPC.
63. Coming to the plea taken on behalf of the Appellant/A.1 that the Identification Parade proceedings conducted by P.W.8 Judicial Magistrate were not marked before the trial Court (notwithstanding the fact that P.W.8 was examined), it has to be pointed out by this Court that conducting of Test Identification Parade or identification is not an sine qua non in every case if from the circumstances, the guilt of the accused is established, as opined by this Court.
64. It is true that Identification Parade belongs to investigation stage. Indeed, the Test Identification Parade is not a substantive piece of evidence and it is squarely governed by Section 162 of the Criminal Procedure Code. It cannot be gain said that there is no provision in the Criminal Procedure Code which obligates the investigating agency to hold or confess the right upon the accused to claim a test identification parade, in the considered opinion of this Court.
65. After all, the Test Identification Parade is conducted for the satisfaction of prosecution that the investigation was proceeding in the right direction. To put it differently, the object of prior Test Identification is to test and strengthen the trust worthy notes of that evidence. Therefore, the safe rule of prudence is ordinarily for a Court of Law to look into the corroboration of the sworn deposition of witnesses in Court as to the identity of the accused, who are strangers to them, in the form of earlier proceedings. But this Rule of Prudence is subject to exceptions (i.e.) when a Court of Law is impressed/satisfied with the deposition of a witness on whose testimony it can place reliance without such or other corroboration.
66. This Court, at this juncture, aptly recalls and recollects the following decisions and the relevant excerpts are as under:-
(i). In the decision of STATE OF KARNATAKA Vs. RAJAN, S/O KESHAVAN AND OTHERS 1994 CRI.L.J - page 1042, wherein at special page Nos.1054 and 1055, in paragraph No.23, it is inter alia observed as follows:-
".... The test identification parade only gives some guarantee of truth of identification in Court but ultimately it is identification in Court but ultimately it is identification in Court of the accused persons that should weigh with the Court. Whether there was opportunity for the witnesses to see the accused at the time of incident, whether they could remember by face the accused persons and whether they cold identify them by such memory in Court is the relevant consideration."
(ii). In the decision SUBHAYA PERUMAL PILLEY AND ETC., Vs. THE STATE 1997 CRI.L.J page 922, wherein at special page 924, in paragraph 5, it is observed and held as follows:-
"The learned Counsel for the appellants has submitted as far as the appellants are concerned, there was no proper identification of those accused. He submits that in fact no identification parade has been conducted in order to identify the appellants. The identification parade in fact was conducted only to identify accused No.4. This defect according to him is very fatal to the prosecution. We cannot agree with this submission of the learned Counsel. Even without identification parade, there is enough evidence before the Court below that the appellants were properly identified. The appellants were properly identified as pointed out earlier by P.Ws.3, 6, 7 and 8. Moreover, the injury inflicted on accused No.1, quoting the words of the lower Court, throws an "indelible mark" on accused No.2 in order to fasten him with offence. These witnesses have categorically stated that they have identified these appellants. If an accused is identified by cogent and proper evidence by other witnesses who were examined before the Court, normally identification parades are not resorted to. Identification Parade is resorted to as part of investigation to identify the accused where the prosecution witnesses are not at all able to identify the accused. Therefore, whatever defect in the identification parade or non-conducting of the identification parade for specific purpose of identifying the appellants will not be a ground to attack the prosecution. Therefore, this argument of the learned counsel based on the identification parade cannot be appreciated by us."
(iii). In the decision of the Honourable Supreme Court in MULLAGIRI VAJRAM AND OTEHRS Vs. STATE OF ANDHRA PRADESH AIR 1993 SUPREME COURT page 1243, wherein at special page No.1244, in paragraph 5, it is observed and laid down as follows:-
"It was next contended by learned counsel on behalf of the accused A.2 and A.7 that P.W.2 in the cross-examination admitted that after the incident he had gone to Police Station seven or eight times. He had gone to the Police Station as he was asked by the Police. He also admitted that at that time accused persons were in police lock up. On the basis of the aforesaid statement of P.W.2, it was contended that when P.W.2 had gone to police station seven or eight times after the incident the possibility of his seeing the accused (A.2) and (A.7) in the Police Station cannot be ruled out. It was thus contended that any identification parade held on 25/1/1978 and 26/1/1978 has no value as P.W.2 had already seen the accused persons in the police station. We find no force in this contention. Exhibits P.16 and P.17 are the proceedings of identification Parade held on 25/1/1978 and 26/1/1978 respectively. A perusal of these documents shows that P.W.2 Garapathi Krishnavatharam had himself stated that he had prior acquaintance with Mullagiri Yesupadam (A.2) and Gandi Abraham (A.7). The High Court has examined this aspect of the matter and has rightly arrived to the conclusion that P.W.2 in his evidence has stated that he came to know the names of the accused from the children of the deceased and it was not unnatural for a person, who resides in a village for a period of two months and especially when they reside opposite to the residence of the president (deceased) in whose office he was working as a clerk to know the names of the persons residing nearby. P.W.2 himself admitted at the time of holding the identification parade that he had prior acquaintance with A.2 and A.7, P.W.2 is a witness of sterling worth and both the trial Court and the High Court have identified A.1, A.2 and A.7 in the Court. Their conviction is not based on the identification parade but on the statement of P.W.1 and P.w2 made during the trial as eye-witness."
(iv). In the decision of Honourable Supreme Court in VISVESWARAN Vs. STATE rep. BY S.D.M AIR 2003 SUPREME COURT page 2471, wherein at special page Nos.2474 and 2475, in paragraph 13, it is observed and held as follows:-
"Reverting to the instant case, it is no doubt true that if the evidence of witnesses is examined in isolation, without having regard to the aforesaid principles, there may be considerable force in the submission that the identity of the appellant has not been established and likewise as a result of defective investigation of not holding test identification parade, the benefit should go to the appellant. However, when the case is examined having regard to the aforesaid legal principles, the result would be otherwise. Circumstances which have been taken into consideration against the appellant by the trial Court as well as the High Court are that the appellant, a police official, was caught from a room in a hotel. The proprietor of the hotel was examined as P.W.3. The hotel record (Exhibits P.4 and P.5) showed booking of the room in that hotel by the appellant and also payment of advance of Rs.100/-. P.W.3 had also been examined by P.W.14. The appellant could not explain his whereabouts during the time the offence was committed. He was not co-operative during investigation. He declined to give sample of semen. He was having different appearance at the time of examination of P.W.1 and P.W.2 in Court. At the time of commission of offence, he did not have beard and moustaches. However, when P.W.1 and P.W.2 were examined in Court, he had beard and the moustaches and was wearing Dhoti. The testimony of P.W.1 and P.W.2 was straightforward. The witnesses, immediately after the commission of offence, had named the appellant. The non-holding of the test identification parade, having regard to the facts of the case, is not fatal and does not create any reasonable doubt in the case of the prosecution. We are unable to accept the contention that the identity of the appellant had not been proved. From the proved circumstances, it has been fully established that P.W.1 was picked up and raped in a hotel room as per the case set up by the prosecution by a Police Constable who was none other than the appellant. There is no infirmity in the impugned judgment of the High Court."
67. In the case on hand, although P.W.8 (Judicial Magistrate, who conducted the Test Identification Parade) was examined as one of the prosecution witnesses. Through him, the Test Identification Parade proceedings were not marked on behalf of the prosecution. It is true in the Test Identification Parade conducted by P.W.8 at Coimbatore, Central Prison, the Appellant/A.1 was identified by P.W.1. Also P.W.2 (Driver of the Bus) in his evidence has stated that in the Central Prison, he identified the Appellant/A.1 along with P.W.1. Since the Test Identification Parade conducted by P.W.8 (Judicial Magistrate) is not a substantive piece of evidence, the omission to mark the Test Identification proceedings before the trial Court is not fatal, in the present case, in the considered opinion of this Court.
68. It is to be pointed out by this Court that non-production of the Trip Sheet, Tickets Record, etc., of the bus would not in any way affect the credibility of the prosecution case in so far as the Appellant/First Accused is concerned, as opined by this Court. Also, there being no photograph of damaged bus available on record is not much relevance, as opined by this Court.
69. Likewise, the prosecution not recovering the broken glass of the bus and the cut off cord of the bus bell are not fatal to the prosecution case, in the considered opinion of this Court.
70. At the risk of the repetition, this Court, very relevantly points out that P.W.1 (Conductor) and P.W.2 Driver had in their evidence adduced before the trial Court had clearly identified the Appellant/A.1 before the trial Court and further, they had also spoken about the role played by him in regard to the commission of the offence. In fact, M.O.2 sickle was seized from the possession of the Appellant/A.1. Also, that a cash of Rs.300/- (three hundred notes) seized under M.O.3 Mahazar, the Conductors Bag M.O.1 was also seized by the Police.
71. It is to be borne in mind that P.W.1 and P.W.2 in their evidence had not whispered about the presence of A.2 and A.3 at the time of commission of the offence, although, they had stated that someone was coming behind the bus involved in the occurrence. Moreover, no one came behind. As such, the trial Court acquitted A.2 and A.3 in respect of the charge levelled against them under Section 392 r/w. 397 IPC.
72. In the light of the qualitative and quantitative discussions and also this Court taking note of the cumulative attendant benefits and circumstances of the case, in an integral manner, comes to an inevitable conclusion that the Respondent/prosecution had proved the charge levelled against the Appellant/A.1 under Sections 392 r/w. 397 of IPC beyond all shadow of doubt. As such, the trial Court finding in the Judgment in S.C.No.174 of 2005 holding the Appellant/A.1 guilty under Section 392 r/w. 397 IPC does not suffer from any patent illegality or impropriety or material irregularity as opined by this Court. In fact, this Court is in complete agreement with a view taken by the trial Court in holding the Appellant/A.1 guilty under Section 392 r/w. 397 of IPC. Even in regard to the punishment awarded by the trial Court to the Appellant/A.1, this Court is in agreement with the same. Consequently, the Criminal Appeal fails.
73. In the result, the Criminal Appeal is dismissed. The conviction and sentence passed in S.C.No.174 of 2005 dated 30/11/2005 by the Learned Additional District and Sessions Judge, Fast Track Court No.III, Coimbatore are hereby confirmed by this Court for the reasons assigned in this Appeal.
08/10/2013 mvs.
Index: Yes website: Yes M.VENUGOPAL,J mvs.
judgment in Crl.A.No.24 of 2006 08/10/2013