Madras High Court
Simon And Ors. vs State Of Tamil Nadu, Rep. By The ... on 16 December, 2006
JUDGMENT M. Thanikachalam, J.
1. A.1 to A.4, A.6, A.8 and A.9, in Sessions Case No. 620 of 1999 on the file of the learned I Additional Sessions Judge, Chennai, are the appellants.
2. These appellants, along with three other accused viz. A.5, A.7 and A.10, who are not before me, were directed to face the trial for the offences under Sections 397, 120B r/w. 392 and 412 IPC on the grounds all the accused joined together, conspired to commit the offence of dacoity, that in pursuance of the same, A1 to A3 actually committed the offence robbing a sum of Rs. 31.5 lakhs from the defacto complainant, that to the share of accused 8 to 10 a sum of Rs. 3 lakhs was given which was received by them knowing fully well that the amount is a stolen property.
3. After committal, when the case reached the hands of the learned I Additional Sessions Judge, Chennai, the learned trial Judge, by going through the materials placed before him, formed the opinion, that there are sufficient materials, to frame charges and proceed against the accused and in this view, charges came to be framed against A.1 to A.3 for the offences under Sections 397 and 120B r/w. 392 IPC against A.4 to A.7 for the offences under Section 120B r/w. 392 IPC and against A.8 to A.10 for the offence under Section 412 IPC.
4. Upon explaining the charges when the accused were questioned, all the accused refused to plead guilty, thereby compelling the prosecution, to prove the charges against them, beyond all reasonable doubts. The prosecution, realising the responsibility, to discharge the burden of proof, had examined 19 witnesses, seeking aid from 41 documents as well as 32 material objects.
5. The accused were examined after the prosecution evidence closed, as mandated under Section 313 of Cr.P.C., to explain the incriminating circumstances available in the evidence, for which they pleaded ignorance of the evidence given by the prosecution witnesses, totally denying their involvement. In addition, if possible, to nullify the case of the prosecution, D.Ws.1 to 3 were examined, seeking aid from Exs.D.1 to D.3.
6. The learned trial Judge, by scanning the materials produced before him and evaluating the same, came to the conclusion that the evidence, reported against the accused, proved the offences under Sections 397 and 120B r/w. 392 IPC against A.1 to A.3 alone and an offence under Section 411 IPC as against A.4 to A.10. Thus concluding, A.1 to A.3 were convicted and sentenced to undergo Rigorous Imprisonment for a period of seven years, for the offence under Section 397 IPC, further sentencing them to undergo Rigorous Imprisonment for seven years and to pay a fine of Rs. 1,000/= each in default to undergo simple imprisonment for one year, for the offence under Section 120B r/w. 392 IPC, ordering the above sentences imposed against A.1 to A.3 to run concurrently. A.4 to A.10 were convicted and sentenced to undergo Rigorous Imprisonment for one year, each, for the offence under Section 411 IPC, giving set off also, which are under challenge in these appeals by A.1 to A.4, A.6, A.8 and A.9.
7. The prosecution case, as culled out from the evidence, which led to the conviction of the appellants, followed by these appeals, briefly, is as follows:
(i) P.W.1-Gopi was the Cashier in Varadharaja Agro Industries Private Limited, situated at No. 310, Thambu Chetty Street, Chennai. On 7.5.1999, at about 12.30 p.m., P.W.1 along with a co-employee P.W.2-Rajendran, proceeded to UCO Bank with a cash of Rs. 17.5 lakhs in a bag and Rs. 14 lakhs in a suit-case, totalling to Rs. 31.5 lakhs to deposit in the Bank, in the Auto bearing Registration No. TN-02Z-7344 driven by one Narayanan.
(ii) On coming to know that huge cash from M/s.Varadharaj Agro Industries Private Limited is being carried in an auto-rickshaw, to the UCO Bank, A.1 to A.3 were waiting in a Yamaha Motor Bike-M.O.1 at the junction of Thambu Chetty Street and Mettu Street, in order to rob the same.
(iii) When the auto was nearing the junction of Thambu Chetty Street and Mettu Street, A.1 to A.3 intercepted the auto-rickshaw and waylaid. When one of the three accused placed the knife, on the neck of the auto-driver, another accused attempted to cut P.W.1. Since P.W.1 leaned on one side, the cut fell on the steel bar of the auto-rickshaw. At the same time, A.3 snatched the bag and suit-case, containing money, from P.W.2-Rajendran, then all the three accused decamped with booty, in their Yamaha Motor Bike.
(iv) Immediately, P.Ws.1 and 2, rushed to their office raising hue and cry, where they informed the incident to their owner P.W.4-K.T.V. Narayanan. Thereafter, P.W.1 accompanied by P.W.3-Narendran, Loading Supervisor, went in an auto-rickshaw, in search of the accused, in the same route, and found A.1 to A.3 speeding in their bike near Government Stanley Hospital. On P.W.1 identifying the accused to P.W.3-Narendran, he jumped from the auto-rickshaw and gave a fist on the face of one of the accused, as a result of which all the three accused fell on the road with the motor cycle. When one of the accused attempted to stab them, they raised alarm and since public started gathering, all the three accused, leaving the suit-case, decamped with the bag containing money. Then, collecting the suit-case, P.Ws.1 and 2 returned to their office. After handing over the suit-case to P.W.4, P.W.1 went to B-1 Police Station, along with P.W.4 Narayanan and one Kannan where they lodged the complaint-Ex.P.1 with P.W.13-Sub Inspector of Police, who registered a case in Cr. No. 581/1999 and submitted the printed FIR-Ex.P.20 to the Court, marking copies to the higher-ups also.
(v) Upon receipt of Ex.P.20, P.W.15-Inspector of Police, inspected the scene of crime, prepared Ex.P.24-rough sketch and Ex.P.25 observation mahazar in the presence of the witnesses. He had also examined number of witnesses, recorded their statements. Since he was transferred to Mylapore Police Station, further investigation in this case was taken up by the succeeding Inspector of Police-P.W.19.
(vi) On 19.5.1999, P.W.19 arrested A.3 near Vyasarpadi Railway Station. Upon examination, he gave voluntary confession statement and the admissible portion of which is Ex.P.2, which was recorded in the presence of P.W.11-Vijayan and another. Based on the confession statement of A.3, a sum of Rs. 12,000/= and two knives were recovered, under Ex.P.3 - mahazar.
(vii) On the same day i.e. On 19.5.1999, P.W.19 arrested A.8 at Mannarpettai and recorded his voluntary confession statement in the presence of P.W.11 and another. The admissible portion of confession is Ex.P.4, and based on the confession statement of A.8, the Yamaha Motor cycle belonging to A.1, bearing registration No. TN-04-Y-0498 - M.O.1 was recovered from K.R.R. Engineering Company, Sidco Estate in the presence of the same witnesses at 1.00 p.m., under Ex.P.6. From the same premises, on the basis of Ex.P.31 confession given by A9 voluntarily, a sum of Rs. 9,75,000/- was recovered in the presence of the same witnesses, under Ex.P.5. Thereafter, at the instance of A.8, a sum of Rs. 10,000/=, which he got from the booty towards his share and M.O.32-cell phone were recovered from his house under Ex.P.7 mahazar. Then, from the house of A.1, situated at Thiruveediamman Koil street, a kinetic honda scooter bearing registration No. TSK.6569 was recovered under Ex.P.5-A.
(viii) On the same day at 3.45 p.m., P.W.19 arrested A.4 Rajkumar, at T.Nagar Bus stand and recorded his voluntary confession statement, in the presence of P.W.11 and another. The admissible portion of confession statement is Ex.P.8. Based on the said confession statement of A.4, P.W.19 recovered Rs. 60,000/= from one Janarthanan-P.W.5 at No. 17, Rajamannar Street, T.Nagar, under Ex.P.32-Mahazar.
(ix) On the same day at 5.15 p.m., P.W.19 arrested A.6 at Choolaimedu, recorded his voluntary confession statement in the presence of P.W.11 and another. The admissible portion of confession statement is Ex.P.41. Pursuant to the said confession statement, A.6 produced a sum of Rs. 30,000/=, which is also the case property in this case, from his house, which was recovered under Ex.P.9 in the presence of same witnesses.
(x) On the same day at 6.30 p.m., P.W.19 arrested A.7 from Amar Mansion, Mannadi Street and recorded his voluntary confession statement in the presence of witnesses. The admissible portion is Ex.P.10. Pursuant to the said confession statement, he produced a sum of Rs. 15,000/=, which was recovered by P.W.19 in the presence of same witnesses under Ex.P.11.
(xi) The 4th accused on the same day took the investigating officer at about 9.00 p.m. to his house at No. 54, Pavazhakara Street and informed that the amount received by him towards his share was entrusted to his father. On the basis of the confession given by A4 as spoken by P.W.19 a sum of Rs. 1,13,500/- was recovered from the father of the 4th accused under Ex.P.33 in the presence of the same witnesses.
(xii) Then, at 9.30 p.m., A.4 took the police party to No. 114, Angappan Street and shown one Buhari-P.W.6, to whom he has given Rs. 4,000/= and the said amount was recovered from the said Buhari-P.W.6 under Ex.P.34, in the presence of same witnesses.
(xiii)Then, on the same day at 9.45 p.m., a sum of Rs. 16,000/= was recovered from one Arumugam, No. 119, Pavalakkara Street, under Ex.P.35 in the presence of the same witnesses, at the instance of A4.
(xiv) Thereafter, at 10.15 p.m., on the same day, A.4 took the police party to one Arumugam-P.W.8 at No. 75, Pitaariyaar Koil Street, to whom he had handed over a sum of Rs. 10,000/=, which was recovered under Ex.P.36 in the presence of the same witnesses.
(xv) Thereafter, at 10.30 p.m., on the same day, A.4 took the police party to one Solairaj-P.W.7 at No. 54, Nainiappa Naicker Street, who had handed over a sum of Rs. 20,000/=, which was recovered under Ex.P.37 in the presence of the same witnesses.
(xvi) Thereafter, at 11.00 p.m., on the same day, A.4 took the police party to the house of one Rajesh at No. 31, Club Road, Chetpet, wherefrom at the instance of A.4 a sum of Rs. 11,000/=, was recovered from Rajesh under the cover of mahazar, Ex.P.38, in the presence of the same witnesses.
(xvii) Thereafter, at 11.15 p.m., on the same day, A.4 took the police party to the house of one Yousuf-P.W.9 of Madhavaram, wherefrom, a sum of Rs. 5,000/=, was recovered under Ex.P.39, in the presence of the same witnesses, at the instance of A4.
(xviii)Then, at 12.30 a.m. on 20.5.1999, A.4 took the police party to one Premlal-P.W.10 at No. 1, Vinobaji Road, Ponniyambedu, Madhavaram, wherefrom a sum of Rs. 8,500/=, was recovered under Ex.P.40, in the presence of the same witnesses.
(xix) On the same day at 1.30 a.m., P.W.19 arrested A.10 at Choolaimedu and recorded his confession statement - the admissible portion of which is Ex.P.12, in the presence of P.W.11 and another. Pursuant to which a sum of Rs. 85,000/= was recovered from A.10 under Ex.P.13, in the presence of the same witnesses.
(xx) Thereafter, on the same day, at 3.00 a.m., at the instance of A.10, a sum of Rs. 50,000/= was recovered from one Lakshmi, No. 72, East Colony, ICF, Chennai-38, under Ex.P.14, in the presence of the same witnesses.
(xxi) Then, at 3.30 a.m., at the instance of A.10, a sum of Rs. 50,000/= was recovered from one Sheela, No. 140, Thiru Vi.Ka.Nagar, under Ex.P.15, in the presence of the same witnesses. Then, returning to the Police station, P.W.19 sent all the arrested accused A.3, A.4 and A.6 to A.10 for judicial custody.
(xxii) Then, on 25.5.1999, he took A.10 for police custody and examined him in the presence of P.W.16 and another, recorded his voluntary confession statement, the admissible portion of which is Ex.P.26. Pursuant to the said confession statement, at the instance of A.10, a sum of Rs. 65,000/= was recovered from one Saraswathi, No. 8c, 4th street, New Street, Ayanpuram, Chennai-23 under Ex.P.27 in the presence of the same witnesses.
(xxiii) Thereafter, at the instance of A.10, another sum of Rs. 50,000/= was recovered from one Lalli, No. 27, 8th street, NSK Nagar, Aminjikarai, Chennai-29, under Ex.P.28 in the presence of the same witnesses. Then, P.W.19 examined P.W.10 and another and handed over A.10 for judicial custody on 28.5.1999. Then, since P.W.19 went on leave, P.W.18 took-up the case for further investigation, who was the then Inspector of Police of B-2 Police Station.
(xxiv)When, P.W.18 was interrogating A.5 in Cr. No. 1522/1999 of B-2 Police Station, he voluntarily confessed about his involvement in Cr. No. 581/1999 of B-1 Police Station, under the admissible portion of his confession statement Ex.P.29, which was recorded in the presence of P.W.17 and another on 4.7.1999. Then, pursuant to the confession statement of A.5 and at his instance, a sum of Rs. 5,000/= was recovered from one Vellaisami of M.K.P. Nagar, Rayapuram, under Ex.P.30, in the presence of same witnesses.
(xxv) Since, P.W.18 was given to understand that A.1 and A.2 in this case were surrendered before the learned XIV M.M., Egmore, he filed a petition seeking for their police custody on 21.7.1999 and took them for police custody for five days from 22.7.1999.
(xxvi)On 25.7.1999, P.W.18 recorded the voluntary confession statements of A.1 and A.2 in the presence of P.W.12 and another and they are Exs.P.16 and 17. Pursuant to the said confession statement-Ex.P.16 given by A.1, a sum of Rs. 4,000/= was recovered from the house of A.1 at No. 21-B, Thiruveedhi Ammal Koil street, Mannarpettai, Chennai-50 in the presence of the same witnesses under Ex.P.18.
(xxvii)Then, on the same day, at the instance of A.2 and in pursuance of his confession statement-Ex.P.17, a sum of Rs. 2,000/= was recovered from the house of A.2 at Door No. 14, Periyar Nagar, Korattur, Chennai-80 under Ex.P.19 in the presence of the same witnesses.
(xxviii) Then, A.1 and A.2 took the police party to Villivakkam Railway station and produced two knives-M.Os.29 and 30, used in the commission of the crime, which were recovered under the cover of Mahazar Ex.P.28-A, in the presence of the same witnesses. Thereafter, P.W.18 handed over A.1 and A.2 to judicial custody.
(xxix)After returning from leave, P.W.19 took-up the further investigation and filed a petition before the learned Chief Metropolitan Magistrate, to nominate a Magistrate to conduct the Test Identification Parade in this case, to identify A.1 to A.3. The learned Chief Metropolitan Magistrate, by the order dated 5.8.1999 in Ex.P.21, has directed the learned XV Metropolitan Magistrate, George Town, Chennai-1 to conduct the Test Identification Parade, regarding A.1 to A.3. Accordingly, P.W.14-Magistrate, after addressing a letter-Ex.P.22 to the Superintendent of Central Prison to make arrangements for conducting Identification Parade, conducted the Test Identification Parade of A.1 to A.3 on 11.8.1999, wherein P.W.1-Gopi and P.W.3-Narendran have identified A.1 to A.3. At the time of Identification Parade, A.1 complained to the Magistrate that even before Identification Parade, their photographs were pasted throughout Tamil Nadu and they were also shown to the witnesses, when they were in police station. After identification parade and after recording the statement of A.1, the learned magistrate submitted her report-Ex.P.23.
(xxx) After completion of the rest of investigation and completing all procedural paraphernalia, P.W.19 filed the charge-sheet, seeking appropriate punishment, which was accepted by the Court, to major extent, as said supra, leading to these appeals. 8. Heard Mr. K. Asokan, Senior Counsel for A.1 and A.2, Mr. S.Y. Masood for A.3, Mr. T. Sudanthiram, Senior Counsel for A.4 and A.6, Mr. G. Prabhakaran, for A.8 and Mr. S. Shanmugavelayutham for A.9 and Mr. J.C. Durairaj, learned Government Advocate (criminal side) for the respondent/state.
9. Mr. S. Ashokan, learned Senior Counsel appearing for A1 & A2 and Mr. S.Y. Masood, learned Counsel for A3 have argued;
(i) that practically there is no acceptable legal evidence to convict these accused/appellants since none had properly identified them as robbers;
(ii) that the identification parade said to have been conducted where it is said that two witnesses have identified these appellants as robbers was not even accepted by the trial Court, in view of the fact that there was an inordinate delay in conducting the test identification parade as well as in view of the proved position that the witnesses should have identified these accused/appellants only on seeing their photographs, which were published early;
(iii) that on the basis of the alleged confession said to have been given by these accused, the amounts recovered were not even identified as booty since it is also not possible to identify the cash and this being the position, conviction on the basis of the alleged recovery, preceded by alleged confession is not legally sound,
(iv) that though the incident is said to have taken place or occurrence had taken place in two places that too during day time, no independent witnesses have been examined to prove even there was some incident;
(v) that for the non examination of the auto driver in which P.Ws.1 & 2 said to have carried the cash, who was also said to have been threatened by the accused, an adverse inference has to be drawn; as if nothing would have happened.
(vi) that when the recovery of the amount from some of the witnesses on the basis that they were given by some of the accused when the possession is legally explained, that probability should have been accepted; and
(vii) that if the above aspects had been properly construed, considered and proper application of law has been made, there would not have been any occasion to find the accused guilty, which was not properly appreciated by the trial Court and therefore, the appellants are entitled to an acquittal.
Elaborating the above points, in addition to pointing out some other discrepancy also to disbelieve the prosecution case then and there, and taking me through the entire evidence oral and documentary, strenuous submissions were made on behalf of the appellants (A1 to A3) for acquittal.
10. The learned Senior Counsel, Mr. T. Sudanthiram appearing for A4 & A6, the learned Counsel Mr. Shamugavelayutham for A9 and the learned Counsel Mr. G. Prabhakaran appearing for A8 would submit that though the recovery of some amounts were made from some of the witnesses on the basis of the alleged confession said to have been given by some of the accused, that will not lead to the inference or presumption that the cash recovered should be the stolen property in the absence of proper identification, that too when the accused and witnesses have accounted and explained the possession of the cash by the examination of DWs as well as producing some documents, but unfortunately the trial Court had ignored the above defence, resulting miscarriage of justice, which should be erased by allowing the appeals.
11. In support of the above contentions, my attention was drawn to the various portions of the evidence given by P.Ws. as well as D.Ws., which are supported by documents also, even proving that before the alleged incident itself, the party was in possession of some amount, said to have been recovered and this being the position, neither presumption nor inference could be drawn to convict the accused as if they have received stolen property. It is the further submission of the learned Counsel for the appellants that even assuming that the accused have received the amounts from A1 to A3, there is no evidence at all that they have received the amount and retained the cash knowing or having reason to believe the same to be the stolen property and therefore, slapping conviction upon the accused in Crl.A. Nos. 416/2000, 418/2000, 471/2000 and 492/2000 under Section 411 IPC is against law, requires to be erased.
12. I have heard the learned Government Advocate, (Criminal Side), Mr. J.C. Durairaj for the respondent/state on the above points, who supported the reasonings assigned by the trial Court.
13. P.W.4 is an oil merchant, importing palm oil from Malaysia and selling the same to the retailers in India. As per the case of the prosecution, from the company of P.W.4 its employees viz., P.Ws.1 & 2 took a sum of Rs. 31.5 lakhs in a suitcase as well as in a cash bag, in order to deposit the same in the UCO Bank situated at Thambu Chetty Street. On the way, according to the prosecution, A1 to A3 coming in the motor cycle-MO1, waylaid them, robbed the entire amount and decamped in the same motor cycle. A story is further projected that P.Ws.1 & 2 informed the incident to P.W.4, then immediately P.W.1 & P.W.3 chased A1 to A3, intercepted them near Stanley Government Hospital and when P.W.3 fisted upon the face of one of the accused, all the three fell down losing the balance from the motor cycle with the cash bag and the suitcase, then followed by crowd. Immediately, the accused (A1 to A3) regaining and restoring the control, it is said they escaped from that place with the cash bag containing Rs. 17.50 lakhs, leaving the suitcase, which contained the cash of Rs. 14 lakhs, which was recovered by P.W.1, later handed over to P.W.4. The story so alleged that P.Ws.1 & 3 chased the accused, intercepted them near Stanley Hospital and rescued the suitcase alone, which contained 14 lakhs; appears to be highly improbable, unimaginable and unacceptable. This incident took place on 7.5.1999 at about 1'O clock or so, mid day that too in a busy and crowded locality, in two places. It is not the case of the prosecution through the witnesses, that at that time the accused wielded weapon, threatening the crowd, though it is said, one of the accused attempted to assault P.W.1 and Narendran. This being the position, nothing would have prevented the mass or crowd, which ought to have gathered in the normal course, preventing the accused fleeing from the scene of crime viz., the second place. This unnatural conduct or incident, undoubtedly prompts me to think, that the prosecution has not projected the case correctly and there appears to be some suppression which could be seen from further conduct also.
14. It is the case of the prosecution, that all the accused came in a motor cycle marked as M.O.1 and after robbing P.Ws.1 & 2, they drove the motorcycle and escaped. It is not acceptably explained, how that motor cycle was recovered. No step has been taken to find out who is the owner of the motor cycle, such as whether the accused or somebody. If any one of the accused is the owner of the motor bike-M.O.1, then on the basis of the identification of motor cycle, an inference could be drawn as if all the accused would have come in the motor cycle. If the motor cycle belongs to somebody, then the possession of the motor cycle by the accused should be explained by examining the owner. If the owner said, he had given this motor cycle to any one of the accused, then on that basis, the accused could be fixed, which should be the normal way of investigating the case, which is not available here.
15. As spoken by P.W.19, the Yamaha motor cycle was recovered from Jasline i.e. A8 under the cover of Mahazar Ex.P.6. Admittedly, A8 has not used the motorcycle and it is also not the case that A8 came along with A1 to A3 in the motorcycle. Ex.P6 failed to indicate that this motorcycle was recovered on the basis of the confession given by A1 to A3 from A8. Therefore, it is not possible to say, that A1 to A3 should have used the motorcycle viz., M.O.1 for committing robbery. P.Ws.1 to 3 have also not disclosed the number of the motor cycle, though they would say M.O.1 is the motorcycle in which the accused came to the scene of crime. Thus the recovery of motorcycle stands aloof not connecting A1 & A2. In this view, mere recovery of some motorcycle, in the absence of proof that how the accused came to be in possession of the motorcycle will not prove the involvement of the accused, that too in the absence of any connecting materials.
16. The accused are charged not only for robbing Rs. 17.50 lakhs, which was taken by P.W.1 in a cash bag, but also for robbing or stealing a sum of Rs. 14 lakhs, which was taken by them in a suitcase. Therefore, that amount also should have been the subject matter of the case and crime, and the said amount as well as the container also should have been recovered by the police, produced before the Court, exhibited in the trial connecting with the crime and accused. Then only irrespective of the recovery of the remaining amount, the Court could convict the accused for snatching a sum of Rs. 14 lakhs, which was in the suitcase. But unfortunately, neither the suitcase, nor the cash of Rs. 14 lakhs said to have been retrieved from A1 to A3 by P.Ws.1 & 3, was produced and marked, for which normally the Court should draw an adverse inference as if nothing had taken place as said by P.Ws.1 & 3 regarding the recovery of Rs. 14 lakhs. Unfortunately this aspect was not taken into consideration by the trial Court. But the trial Court convicted the accused for taking this amount also, which was not at all produced before the Court, identified by anybody. In this case, totally a sum of Rs. 16,01,999/- has been recovered and they are exhibited as M.Os.2 to 28.
17. The learned trial Judge, accepting the case of the prosecution, that the above said amounts were recovered pursuant to the confession given by some of the accused, convicted them, further presuming that the cash belonged to P.W.4 was taken by P.Ws.1 & 2 for depositing into UCO Bank situated at Thambu Chetty Street. It is true that Section 114 of the Indian Evidence Act empowers the Court to draw a presumption, if a man who is in possession of stolen goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he accounts for his possession. In order to apply Section 114 Illustration (a) of the Indian Evidence Act, there should be three ingredients and they are:
(i) that a man shall be in possession of stolen goods;
(ii) that possession must be soon after the theft, and
(iii) that the person who was found to be in possession of the said goods failed to explain the possession.
Therefore at the first instance, in order to raise the presumption, it must be shown that the goods were stolen. In the case on hand, the goods are cash, which cannot be identified as if it is the cash taken by a person, stolen by the accused generally, unless the cash or the cash taken to deposit has any significant mark or the person who carried the cash had materials such as noting the numbers, later to be identified etc. in addition, producing the accounts for the availability of the amount. In this view, in a case of theft, involving currency alone, identifying the currency note(s) as if stolen property, is not at all possible. Unfortunately this fact was not properly considered by the trial Court as seen from the reading of the judgment, as rightly submitted by the counsel for the appellants.
18. P.W.4 is having a turn over of Rs. 100 crores or so as said by him. If the daily collection or the weekly collection, as the case may be, taken for the deposit in the bank, they should have challan book, where generally they used to note the denominations etc. Similarly, while taking the amount from the business premises, the account book would disclose what was the cash available on that date, how much amount had been sent for the deposit, in the bank etc. The above facts are admitted by P.W.1. He admits, that in order to deposit the cash in the bank, they are having challan book. It is also admitted by him, that before going to the bank, they used to fill up the challan and take it along with the cash wherein there will be noting about the denominations. He further admits, how much cash was taken for being deposited in the Bank also would be entered, in the cash book. The investigating officers, though numbering 2 or 3 had investigated the crime, have not recovered either the challan book or the cash book or any other documents to prove that on the date of the alleged incident, P.Ws.1 & 2 have taken a sum of Rs. 31.50 lakhs in order to deposit in the UCO Bank. If the challans and other connected documents had been seized, then amounts recovered pursuant to the confession, then there may be possibility to compare at least the denomination of the currency, so as to say that the recovered amount should have been emanated from P.W.4's company, thereby connecting a person, as if he should have received the amount as stolen property, knowing or otherwise, then his failure for not accounting alone will lead to the presumption not otherwise.
19. The recovery of cash as reported in this case, because of my above conclusion, had no legal strength or force to connect especially A1 to A3. If A1 to A3 are to be connected, followed by the recovery, then it should be established that A1 to A3 had intercepted or waylaid P.Ws.1 & 2, took away the cash of Rs. 17.50 lakhs. For this purpose, identification of these persons is a must, without contradiction. If the identification of the accused is proved, then it should be further shown that these accused have handed over the looted amount, either to other accused or to the witnesses from whom the money is said to have been recovered, then it should be proved that the other accused, who had received the amounts from A1 to A3 in turn handed over to the witnesses from whom the amounts were recovered etc. If the above facts are not established, then mere recovery of cash, possession of which is per se not illegal under any law, cannot lead to a presumption, that the persons were in possession of the cash because they might have received from A1 to A3 or from other accused, since they failed to explain their possession also. Therefore, we have to see whether A1 to A3 were identified by any of the witnesses properly, as guided by the Apex Court.
20. P.Ws.1 & 2 were the victims, in the incident. Only from their possession, it is said, originally Rs. 31.50 lakhs were snatched or robbed by the accused. Another person, who was the victim in the hands of the accused viz. Auto Driver, Narayanan. He must be the proper person, to identify the accused or any one of the accused since it is said a knife was placed upon his throat causing apprehension of danger, while intervening and stopping the auto before committing actual robbery. For the reasons best known to the prosecution, the said Narayanan has not been examined, thereby compelling the Court to draw an adverse inference, if he had been examined, he would not have supported the case of the prosecution. Even assuming the non examination of Narayanan may not have any significance, we have to see the oral evidence of P.Ws.1 & 2.
21. P.Ws.1 & 2 appear to have identified A1 to A3 before the Judicial Magistrate, P.W.14 who conducted identification parade and submitted a report-Ex.P.23. After conducting the identification parade, as spoken by P.W.14, she enquired the accused regarding the complaints if any or grievance if any. As conceded by P.W.14, the accused have reported to her that their photos were published throughout Tamil Nadu, telecast in Sun TV, in addition, two witnesses have also come to the station, where they were shown to the witnesses. This part of the complaint, is confirmed by P.W.1, supported by other materials viz., Exs.D1 & D2 i.e. paper publication in Malai Malar & Dina Malar.
22. The incident took place on 7.5.1999 and the identification parade was conducted by P.W.14 on 11.8.1999 i.e. after more than three months. The accused were arrested elsewhere in the month of May itself. Therefore there is an unexplained and inordinate delay in conducting the identification parade. P.W.1 admits that in Malai Malar dated 15.6.1999, the photograph of A1 with his family members was published. It is also admitted by P.W.1 that the photographs of A1, A2, A5 were published throughout Tamil Nadu in the Wall Poster and one of the wall posters was affixed at Mannadi, where his company is situated. He further concedes that the above facts are known to the employees of the company also, further admitting that the identification parade was conducted on 11.8.1999. Thus it is seen from the oral evidence of P.W.1 himself that the witnesses had occasion to see the photographs of the accused before they were directed to identify them, in the T.I. Parade in the Jail by P.W.14. The trial court, considering the inordinate delay in conducting the T.I. Parade, as well as the proportionate of the jail inmates directed to stand along with the accused, came to the conclusion, as seen from para-17 of the judgment, that much reliance cannot be placed on the identification parade, probably considering the further fact, test identification parade cannot be the substantial evidence, to rope in a person as an accused. The above conclusion of the trial Court, as well as the evidence available through the mouth of P.W.1, are not challenged, by the learned Government Advocate before me. It is also not the case of the prosecution, that A1 to A3 were already known to P.Ws.1 & 2 prior to the incident. This being the position, there was a doubt in the minds of the investigating officers about the identity of the accused and to remove this doubt alone, as said above, identification parade was conducted which proved to be unworthy. Therefore, it is to be concluded, that A1 to A3 were not identified by the victims in this case viz., P.Ws.1 & 2. The trial Court though had correctly approached the case in rejecting the test identification parade, then hastened to add that will not relieve the accused from the offence committed by them, for which the reasons assigned are unacceptable, even I could say i.e. against the case of the prosecution.
23. In para-17 of the judgment itself, the trial Court has said, since P.W.1 Gopal has already seen the accused twice at the time of occurrence, it would not have been difficult for him to identify them. If P.W.1 had acquaintance with the accused prior to the incident, then only this conclusion could be accepted. When P.W.1 was attacked, he has not stated that he identified the accused or had the impression of the accused having some unquestionable marks for later identification also. P.W.1 has also not given evidence, among the three, which accused placed the knife over the throat of the driver, which accused attempted to assault him and which accused snatched the cash bag and suitcase from P.W.2, though he has stated generally. Only later on he has stated that the accused, who had intercepted them coming in the motorcycle are the accused available in the Court, whom he has identified in the Central Prison also. If really P.W.1 had perception about the accused or he had impression of the accused in his mind while seeing at the first instance, then in the normal course, he should have stated which accused assaulted him, which accused snatched the bags etc., which are all absent. This being the position, the observation of the learned trial Judge, since P.W.1 had already seen the accused, there is nothing wrong in accepting his evidence regarding the identification, appears to be not legally sound.
24. It is not the case of the prosecution, that immediately P.Ws.1 & 2 chased the accused, since it is said they have decamped with Rs. 31,50,000/- in two containers. But a strange case is projected, after the robbery in a busy locality in the presence of so many people, P.Ws.1 & 2 came to P.W.4, informed, then P.Ws.1 & 3 proceeded in another auto chasing the accused, intercepted near Stanley Hospital. Three persons, if had looted so much of amount, normally their conduct would be to abscond forthwith avoiding public, even avoiding chasing by victims and in that process, they should have diverted their route and escaped. Here, it is said, P.W.1 identified the accused and on information to P.W.3, he gave a fist over the face of one of the accused, which appears to be strange. If that had happened, that place also should have been inspected by the investigating officers and witnesses also should have been examined to prove the second incident. The recovery of the amount from there also, as spoken by P.Ws.1 & 3 should have been proved, which is not so, as indicated by me supra. When the accused fell from the motorcycle having looted so much of amount being three in number, certainly they should have taken all precaution to take the entire booty and they would not have left the suit case. Against this probability, the case projected, which is not proved also, creates considerable doubt as if the truth was suppressed to certain extent and that is why neither the suitcase, nor the cash said to have been recovered viz., Rs. 14 lakhs, was not brought to Court.
25. P.W.2 though had stated pointing out all the accused, that they have waylaid them, he has not stated the independent role played by each accused, thereby his evidence also, in my considered opinion, lacks in proving the identification. P.W.3 would state, that P.W.1 identified the accused when they were chasing the accused near Stanley Hospital. He would state that all the three accused were travelling in the motorcycle. But he has also failed to say which accused received the fist from him, which accused wielded the weapon, after they fell down, in order to escape, and which accused took the cash bag which contained Rs. 17.50 lakhs etc. Therefore, the oral evidence of P.Ws.1 2 & 3 also failed to inspire my mind, in fixing the accused. Even before the apprehension of the accused, it seems the police have published the photographs of the accused and it is not known how they fixed the accused also. This being the proved fact, as per the evidence adduced by the prosecution, the trial Court should have held that the accused were not properly identified by the proper persons viz.P.Ws.1 to 3 as if they are the assailants or robbers, as the case may be.
26. In the absence of identification of the accused, in a case of robbery or dacoity, it may not be possible generally a conviction could be sustained on the basis of the presumption and inference alone as contemplated under Section 114 of the Indian Evidence Act that too when there is no chance to identify the alleged stolen property, proving the ownership also. As said above, to invoke Section 114 of the Indian Evidence Act, the property said to have been recovered from the person must be proved as stolen property, which is not proved here. Admittedly from the accused all the cash exhibited before this Court are not recovered, whereas it is recovered from various persons. Cash also was not recovered soon after the theft in order to bring the case within the presumption. The trial Court itself has observed that the articles viz., currency notes were not identified, as the property is not identifiable. But unfortunately, the learned trial Judge took the view that when the amount lost is Rs. 17.50 lakhs and nearly 90% of the amount is recovered and the accused persons are not that much of affluent, the presumption goes that it is the stolen property. I fail to understand how this kind of presumption was taken as if available under law. It is also recorded by the trial Court that from A1 to A3, though a meagre amount of Rs. 5,000/- was recovered, it does not mean that they could not have robbed P.W.1 of the cash. This kind of presumption based upon surmise and conjecture is not at all available under any known law. Therefore, convicting the accused especially A1 to A3 for the offence under Section 397 IPC as well as 120B r/w 392 IPC is an impossibility under law.
27. The trial Court had committed an unchallenged error in convicting the accused under Section 392 as well as 397 IPC, which itself would go to show that the trial Court has not understood the scope of Sections 397 and 392 IPC. As per the second charge, A1 to A1 were directed to face the offence under Section 120B r/w 397 IPC along with A4 to A7. A4 to A7 are relieved from this charge concluding there is no material for conspiracy. A1 to A3 are said to be the persons, actually directly involved in the commission of the offence and therefore, question of invoking Section 120B IPC may not come into operation. This being the position, it is not known how the trial Court convicted the accused 1 to 3 under Section 120B r/w 392 IPC. Section 397 IPC by itself is not a substantive offence. It is the aggravated form of Section 392 IPC under the circumstances stated therein. In this view, Sections 392 and 397 IPC should go together and Section 397 IPC by itself may not be an offence, which could be seen from the casual reading of both the sections. Section 392 IPC contemplates punishment for robbery, which is defined under Section 390 IPC. Section 397 IPC contemplates punishment, if at the time of committing robbery or dacoity, if the offender had used deadly weapon or caused grievous hurt and it says, the imprisonment with which such offender shall be punished shall not be less than seven years, thereby contemplating minimum punishment, considering the gravity of the offence. Therefore, unless Section 392 IPC is established, Section 397 IPC will not stand independently. In this case, the learned trial Judge convicted the accused under Section 397 IPC, which is the aggravated form of Section 392 IPC and therefore, once again convicting the accused under Section 120B r/w 392 IPC does not arise for consideration at all. Thus committing error in interpreting the penal provision or not understanding properly, the trial Court had committed error, in convicting the accused on the basis of recovery of certain amount also, which appears to my mind thoroughly illegal and should not be allowed to stand, and the further reasons are hereunder.
28. Ex.P.16 is the confession statement said to have been given by A1. Ex.P.17 is the confession statement said to have been given by A2 and Ex.P.2 is the confession statement said to have been given by A3. By going through the above said confession statements, if at all, it could be said that the police should have recovered a sum of Rs. 2,000/-, Rs. 4,000/-, Rs. 100/- from A1 to A3 respectively. Though Ex.P.2 confession of A3 would state that he will identify other gangsters, it is not the case that only on that basis, the other accused were identified and amounts were recovered. Therefore, as rightly observed by the trial Court also, on the basis of the above confession, it is not possible to account that A1 to A3 should have robbed a sum of Rs. 17.50 lakhs from P.Ws.1 & 2. No other confession of A1 to A3 is available as if they have handed over the remaining amount, to other accused or to some of the witnesses. When the main accused viz., A1 to A3 themselves have not disclosed, to the investigating agency about the amounts disbursed by them, if any, to other person, then question of recovering the same, on the basis of the admissibility available under Section 27 of the Indian Evidence Act is also not available which was not legally considered by the trial Court. In this view, when A1 to A3 themselves have not connected other accused, convicting the other accused viz., A4 to A7 under Section 120B r/w 397 IPC is not possible, is the conclusion of the trial Court, proper also. Having reached that conclusion correctly, unfortunately, the trial Court proceeded on the presumption, since large amount has been recovered from various person, that should be presumed as the stolen property, which is not at all available under law, though the doubt may be so strong, and the circumstances may be so strong, but certainly that will not take the place of proof, since the guilt of the accused should not be fixed on the basis of surmise and conjecture, as did by the trial Court. Therefore, I conclude when A1 to A3 themselves have not connected the other accused, even convicting them under Section 411 IPC may not be possible legally.
29. Ex.P.8 is the confession statement said to have been given by A4. On the basis of the said confession, it seems, a sum of Rs. 60,000/- was recovered from P.W.5, Janardhanan. He would state A4 to A6 took his premises for lease and pursuant to the lease, a sum of Rs. 60,000/- was paid as advance and the said lease agreement is marked as Ex.D3. Ex.D3 agreement is not challenged as seen from the examination of P.W.5, who has admitted that a sum of Rs. 50,000/- was paid as advance in addition to a sum of Rs. 10,000/- representing two months rent. This agreement came into existence on 1.5.1999. Therefore, per se it is made out that a sum of Rs. 60,000/- recovered from P.W.5 on the basis of the alleged confession given by A4, was given, even before the date of the incident viz., 7.5.1999. This being the position, it is impossible to say that P.W.5 had received a sum of Rs. 60,000/- from A4 and that amount should represent the booty or the amount robbed on 7.5.1999. Similarly P.W.6 also would state that A4 was the tenant of his premises and as per the agreement a sum of Rs. 10,000/- was given as advance and after five months or so, A4 and A5 gave him Rs. 4000/-, representing the rent. Since the lease entered into between A4 and P.W.6 is not under challenge the payment of lease amount by them, in the absence of any connection with the stolen property, cannot be termed as part of the stolen property. Therefore, the recovery of amount from P.W.5 and P.W.6 will not lead to the conclusion that A4 to A6 might have received the amount from A1 & A2 from which they should have paid the above amounts.
30. Under Exs.P.33 to P.40 some amounts were recovered independently. If these amounts are to be construed as the part of Rs. 17.50 lakhs, said to have taken by P.W.1, then P.W.1 or P.W.2 should have identified the amounts independently, which is not so. The general identification by P.W.1 as if these are all the amounts taken by him to deposit in the UCO Bank, may not be available to prove the offence, since it is demonstrated in one incident that this amount was handed over by A4 to P.W.5 even before the date of the incident, which was very lightly ignored by the trial Court. Thus, in the absence of identification of the amount and in the absence of any proof that A1 to A3 had handed over the booty to A4 to A6, the recovery well explained by the examination of other witnesses, also would suggest that the prosecution has miserably failed, to connect these accused as well as the identification of the amount also.
31. Under Exs.P.3, 5, 7, 9, 11, 13, 14, 15, 18 & 19 also, some amounts have been recovered from the accused respectively, as spoken by P.Ws.11 & 12. These amounts were also not independently identified as form part of Rs. 17.50 lakhs. Therefore, in the absence of the challan, which I have already discussed above, the recovery of the amount from the above said accused will not prove the commission of the offence, which was rightly taken into account by the trial court. But unfortunately, a conviction came to be slapped under Section 411 IPC as if A4 to A10 had received the amount dishonestly knowing it is stolen property. Generally amount i.e. Cash or currency will not show that it must be a stolen property. If it is an article or thing, there may be a chance to enquire about the origin of the property. But when cash is given, which is available on earning, unless it is proved illegally received, there is nothing wrong in receiving the amount by the person and if any amount is recovered from that person, no presumption is available as if it is a stolen property.
32. After the incident, according to P.W.1 he preferred Ex.P.1 complaint to P.W.13. Both of them have identified as if Ex.P.1 is the original complaint. As rightly pointed out by the learned Senior Counsel for A1 to A3, the entire original complaint is not before the court and it is not known why it is suppressed. Ex.P.1 consists of two sheets. The second sheet is written by some body and pages 1 & 2 of the first sheet were written by somebody. It is the usual practice that the complainant used to sign in the original complaint. Here it is stated in page-3, the complaint signed N. nfhgp, thereby showing the original is not before the Court, which also should create considerable doubt about the genesis of the case.
33. By going through the entire materials and giving deep consideration also, I am of the considered opinion that no case has been made out that A4 to A10 were identified by A1 to A3 and on that basis, recoveries were made. Whereas it is said on the basis of the confession given by each accused viz., A4 to A10 amount is said to have been recovered. When it is concluded by the trial Court that other accused are not the members of conspiracy and when some of the accused are not the members of the dacoity, they cannot be roped in under Section 411 of IPC also. In the light of the above discussion, convicting A4 to A10 also under Section 411 IPC is not legally sound, required to be set aside.
34. In this case, some of the accused viz., A5, A7 & A10 have not appealed against their conviction and sentence. Since I am of the view, the conviction against all the accused are not legally sound, that benefit should be extended to the accused, who have not appealed, as per the settled law. As held by the Apex Court in Anjulus Dungdong v. State of Jharkand as well as Sohan Singh v. State of Uttranchal even non appealing accused are also entitled to the same benefits as that of the appealing accused, when the conviction and sentence are set aside. In this view, I am constrained to give benefits to the non appealing accused also. Therefore, the accused, who have not appealed against their conviction and sentence - convicted persons are also entitled to the same benefits extended to the accused/appellants in this case.
35. In the light of the above discussion, all the appeals are allowed setting aside the conviction and sentence passed by the trial Court against all the accused/appellants as well as against the non appealing accused in S.C. No. 620 of 1999 and all of them are acquitted, not finding guilty under Sections 397 and 120B r/w. 392, 411 IPC respectively. The fine amount if any paid by the appellants shall be refunded.