Madras High Court
Venkatesh vs /
Author: G.Jayachandran
Bench: G.Jayachandran
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 30.03.2019 Pronounced on: 03.04.2019
Coram:
The Honourable Dr.Justice G.Jayachandran
Criminal Appeal No.702 of 2008
Venkatesh,
S/o.Parthasarathy,
OldNo.7/1, New No.19,
Somasundaram 3rd Street,
Ayanavaram, Chennai-600 023. ... Appellant/Accused
/versus/
State by Inspector of Police,
K-7, ICF Police Station,
Chennai.
(Crime No.612 of 2007) ... Respondent/Complainant
Prayer: Criminal Appeal has been filed under Section 374(2) of Cr.P.C,
against the judgment dated 16.09.2008 made in S.C.No.288/2008 on
the file of the Learned Additional District and Sessions Judge, Fast
Track Court-V, Chennai, convicting the Appellant under Section 328,
393 r/w 398 of I.P.C and sentencing him to undergo 7 years R.I and
fine of Rs.5000/- in default 6 months R.I.
For Appellant : Mr.K.R.Ramesh Kumar
For Respondent : Mr.Harihara Arun Soma Sankar
Government Advocate
http://www.judis.nic.in
2
JUDGMENT
The appellant aggrieved by the judgment passed in SC 288/2008 holding him guilty of offences under section 393 r/w 398 IPC and Section 328 IPC has preferred the criminal appeal challenging the conviction and sentence.
2. The case of the prosecution as deposed by the witnesses it that, on 01.11.2007 at about 10.30 am the accused with the intention to commit robbery went to Vijayashree Mahal at Anna Nagar, Chennai. He followed Tmt.Annapoorani(PW-2) who went to suite number 3 to change her dress. Imposing as room attender come to clean the room, the accused gained entry into the room. He locked the door and took out a knife from his pocket and threatened Annapoorani to give her jewels. When Annapoorani resisted, he spray “FORANE GAS” on her face. Annapoorani struggled to avoid the attack and banged the doors raising alarm. Hearing the noise, people in the mandapam gathered near the room. Meanwhile the accused pushed Annapoorani on the bed, injected “ANEKET” a stupefying medicine. Since his attempt to rob failed, opened the room and tried to run away from the mandapam. The relatives of Annapoorani chased him and http://www.judis.nic.in 3 caught. Police was informed over phone. They came to the scene of occurrence. From the accused Kisan spray bottle, empty ‘Aneket’ medicine ampule, syringe with needle, and a knife were seized under mahazar Ex P-2 at about 13.15 hrs. The accused was arrested and brought to the station. Police got a written complaint from Krishnaprasath son of Annapoorani (PW-1) and took up the investigation. First information Report was registered in crime no.612/07 at 14.00 hrs. The Inspector of police when to the scene of crime and prepared observation mahazar at about 16.15 hrs. Meanwhile, Annapoorani who lost her conscious was taken to the Sundaram Medical Foundation Hospital in an ambulance. She was treated by Dr.Sunitha (PW-6).
3. The ampule, syringe with needle and the spray bottle sent for chemical analysis. The lab report revealed presence of ‘ketamine’ in the ample and the washing of the syringe and presence of Isoflurane (Forane) in the colourless liquid in the spray bottle labelled as KISAN SPRAY. The note to the report indicates that i) Isoflurane (Forane) is used as an inhalation anaesthesia. ii) Ketamine is used as general anaesthesia.
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4. The trial Court considering the evidence let in by the prosecution held that charges against the accused are proved. The contention of the defence that the prosecution has failed to prove the source of medicine alleged to have been used to commit the crime amounts to defective investigation was negatived by the trial Court. Relying upon the answer given by the accused, when questioned about the incriminating evidence under Section 313 of Cr.P.C, the trial Court held that the accused admits his presence at the scene of occurrence on that date therefore, the case of the prosecution that he was caught red-handed gets proved. The non-identification of the accused by PW.1 victim and PW.2 the defacto complainant was considered by the trial Court as not a serious lapse, the prosecution. Since the other witnesses have identified him and more so, the accused was caught red-handed and handed over to the police.
5. Aggrieved by the conviction, the appeal is filed.
6. The learned counsel appearing for the appellant would submit that the trial Court erred in convicting the accused when the key witness to the prosecution namely the victim PW.1 and the defacto complainant PW.2 failed to identify the accused. The evidence of PW.3 http://www.judis.nic.in 5 and PW.4 are unreliable. Due to the contradictions found between their previous statement and the deposition before the Court. They are not witnesses to the occurrence. The contradiction regarding the manner in which the complaint was given, the person who gave the complaint and the manner in which the accused was arrested by the police throws grave suspicion and doubt about the prosecution case. While so, the trial Court erred in convicting the accused, relying the deposition of witnesses which carries lot of contradictions.
7. Pointing out the contradictory statement of witnesses regarding the manner in which the material objects were recovered would submit that the deposition of witnesses are result of their fertile imagination. An innocent person who went to the Manadapam, on seeing the commotion was taken into custody. The trial Court has wrongly read the reply of the accused given in 313 of Cr.P.C proceedings. The non-examination of Dr.Selva Kumar who first attended PW.1 according to PW.3, is fatal to the prosecution.
8. Per contra, the learned Public Prosecutor would submit that the accused was caught red-handed by the public in the Manadapam, when he attempted to run away from the place of http://www.judis.nic.in 6 occurrence. The victim PW.1 has deposed in a natural way about the occurrence though she has not identified the accused, the other witnesses have identified him. The accused caught red-handed along with the objects used for committing the crime. In such circumstances, the finding of the trial Court needs no interference.
9. Before the trial Court, 8 witnesses were examined by the prosecution. PW.8, the Inspector of Police attached to K-7, ICF Police Station who unfurled the crime through his investigation had deposed about the evidence collected by him during his course of investigation. The victim lady Annapoorani was examined as PW.2, the defacto complainant was examined as PW.1. These two witnesses did not identify the accused in the Court. Whereas PW.3, PW.4 and PW.7 who were the relatives and friend came for the marriage and present during the occurrence has deposed about how they reached room No.3 hearing noise and found Annapoorani unconscious and how the accused was caught while running out from the room. They have identified the accused in the Court.
10. The learned counsel for the appellant contents that the defacto complainant (PW.1) and the victim (PW.2) have failed to http://www.judis.nic.in 7 identify the accused. The contradictions in the evidence of PW.3, PW.4 and PW.7 at the scene of occurrence makes their presence at the time of occurrence itself doubtful. The evidence of PW.1 is clear and cogent regarding the incident. She was not able to identify the accused in Court is not unnatural. A lady who has been suddenly threatened by a stranger in the room and assaulted has honest to her oath had deposed that she is not able to recollect the face of the person who intruded her room and sprayed on her face. The fact of intrusion by a stranger and attack is however proved through her evidence.
11. Regarding the identity of the assailant, the case of the prosecution is that, the accused was caught by the witnesses with the help of others. When he was apprehended he was found in possession of the incriminating material objects which was recovered later. The scope of mistaken identity has been ruled out through the evidence of PW.3, PW.4 and PW.7.
12. Some of the persons whom these witnesses have referred in their deposition such as Dr.Selva Kumar, the police personnels who were present to attend another marriage in the same building, the sister of the bride who happened to be a doctor who was http://www.judis.nic.in 8 present and enquired the accused what he did to Annapoorani and came to know that the had administered Anket injection to inactivate her were not examined by the prosecution. The Investigation Officer has also not enquired about the source of these medicines though the accused has informed about it in his confession statement. Nevertheless, when the testimony of the witnesses deposed are cogent and proved beyond doubt, the omission to examine certain witnesses which would have enhanced the credibility of the prosecution case, does not renders the evidence available insufficient to hold the accused guilty.
14. The sequence of event as spoken by the witnesses clearly proves that on 01.11.2007 the accused has entered the room No.3 at Vijayashree Mahal, Anna Nagar carrying Anket injection syringe, Kisan spray bottle and a knife. Pretending as if he has come to clean gained entry attacked Annapoorani made her unconscious. To escape from the crowd, he has tried to run but caught and handed over to police. The rest of the actions were done by PW.8 the Inspector of Police. The prosecution having proved the guilt of the accused beyond any doubt, the trial Court has convicted the accused. http://www.judis.nic.in 9
15. The grounds raised in the appeal and the contradiction pointed out by the learned counsel for the appellant no way impugn the credibility and reliability of the witnesses. Therefore, the Criminal Appeal is dismissed. The trial Court judgment in S.C.No.288 of 2008 dated 16.09.2008 stands confirmed. Bail Band stands cancelled. The trial Court shall secure the accused and commit him to prison to undergo the remaining period of sentence. The period of imprisonment already undergone shall be set off under Section 428 of Cr.P.C.
03.04.2019
bsm
Index :Yes
Speaking order/Non-speaking order
To,
1. The Additional District and Sessions Judge, Fast Track Court-V, Chennai.
2. The Public Prosecutor, High Court, Madras.
3. The Inspector of Police, K-7, ICF Police Station, Chennai.
4. The Section Officer, Criminal Section (Records), High Court, Madras. http://www.judis.nic.in 10 Dr.G.Jayachandran,J.
bsm Pre-delivery order in Criminal Appeal No.702 of 2008 03.04.2019 http://www.judis.nic.in