Madras High Court
Shahul Hameed vs State Through The
Author: S.Nagamuthu
Bench: S.Nagamuthu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.07.201
CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
Crl.A(MD)No.297 of 2014
Shahul Hameed .. Appellant/Sole Accused
Vs.
State through the
The Inspector of Police,
Contonment Police Station,
Trichy District. .. Respondent/Complainant
PRAYER
Criminal Appeal filed under Section 374(2) of Cr.P.C. against the
conviction and sentence made in S.C.No.36 of 2014, dated 27.08.2014, by the
III Additional District and Sessions Judge, Tiruchirappalli.
For Appellant : Mr.K.Prabhu
Legal Aid Counsel
For Respondent : Mr.C.Mayilvahana Rajendran,
Additional Public Prosecutor
:JUDGMENT
The appellant is the sole accused in S.C.No.36 of 2014 on the file of the III Additional District and Sessions Judge, Tiruchirappalli. He stood charged for the offences under Section 392 r/w 397 I.P.C. The trial Court, by judgment dated 27.08.2014, convicted him under Section 392 r/w 397 IPC and sentenced him to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for 6 months. Challenging the said conviction and sentence, the appellant is before this Court with this appeal.
2.The brief facts of the prosecution case are as follows;
(a)P.W.1 Mr.Mohamed Bagat is a student of MIET Engineering College in Trichirappalli. On 14.09.2013 at about 07.00 p.m, he along with his friend Mr.Galil Ahammed(P.W.2) was walking towards Trichirappalli Tollgate from his room. He was carrying his hand bag, which was hanging from his left shoulder. In the said hand bag, he had kept his Mobile Phone(M.O.1), I Pad(M.O.2), cash of Rs.900/- (M.O.3). At that time, the accused came from behind on walk. Suddenly, to the shock of P.W.1, the accused pulled the hand bag from the shoulder of P.W.1 and snatched it away. P.Ws. 1 and 2 cried for help. The accused was having a Chisel in his hand. He intimidated P.W.1 and P.W.2 that he would stab them with the same. Then, the accused started running. On hearing the alarm raised by P.Ws.1 and 2, general public gathered. They gave a chase and ultimately caught him. Then, with the help of the general public, P.Ws. 1 and 2 brought the accused to Contonement Police Station, Trichirappalli, and produced him. On the complaint, in respect of the above occurrence, a case in Crime No.1226 of 2013 was registered at 09.00 p.m. Along with the complaint, P.W.1 had produced the cell phone, I Pad and Rs.900/-, which were robbed by the accused together with the Chisel, which was used by the accused for threatening.
(b)P.W.5 then Inspector of Police took up the case for investigation. He proceeded to the place of occurrence and prepared an Observation Mahazar under Ex.P.2 and Rough Sketch under Ex.P.4 in the presence of the witnesses. He recovered the articles produced by P.W.1 and prepared Form ? 95 under Ex.P.5. Then he altered the case for offence under Section 397 r/w 392 IPC for which a report was submitted under Ex.P.6. Finally, on completing the investigation, he laid charge sheet against the appellant.
(c) Based on the above materials, the trial Court has framed charges for offence punishable under Section 392 r/w 397 IPC. The accused denied the charges. In order to prove the charges on the side of the prosecution, as many as 5 witnesses were examined and 6 documents were exhibited and 4 material objects were marked.
(d)Out of the said witnesses, PWs.1 and 2 have vividly spoken about the entire occurrence. PW.3 has stated that on hearing the alarm raised by P.Ws 1 and 2 when he turned towards the said direction he found the accused running and with the help of general public, according to him, the accused was surrounded and caught. P.W.4 has spoken about the registration of the case. P.W.5 has spoken about the investigation done.
(e)When the above incriminating materials were put to the accused under Section 313 of Cr.P.C., he denied the same as false. However, he did not choose to examine any witness on his side. Having considered the above evidences, the trial Court convicted him under Section 392 r/w 397 IPC and accordingly, punished him. That is how he is before this Court with this appeal.
3. Though this appeal was listed for several hearings, consistently there was no representation for the appellant by the learned counsel on record. Therefore, this Court was forced to appoint a Legal Aid Counsel. Accordingly, Mr.K.Prabhu was appointed. I have heard him and the learned Additional Public Prosecutor appearing for the respondent. I have also perused the records carefully.
4.The learned counsel appearing for the appellant would submit that according to the charge, the occurrence was on 16.09.2013 at 07.00 p.m whereas P.Ws. 1 and 2 have stated that the occurrence was on 14.09.2013. The learned counsel would point out that this contradiction has not been seriously considered by the trial Court. He would next contend that even P.W.3 has stated that the occurrence was on 14.09.2013.
5.The learned counsel would further submit that the hand bag said to have been snatched away by the accused and recovered later by the general public has not been produced in evidence. The learned counsel would submit that had it been true that the accused was produced in the Station along with the hand bag, nothing would have prevented the respondent police to produce the same before the court. P.W.5 would depose that he did not even recover the hand bag under a separate mahazar. The learned counsel would submit that even assuming that these allegations are true, the offence under Section 397 IPC would not be made out. Having regard to all the above,the learned counsel for the appellant would submit that this Criminal Appeal deserves to be allowed.
6.The learned Additional Public Prosecutor would vehemently oppose this Criminal Appeal. According to him, it is true that P.Ws. 1 to 3 have stated that the alleged occurrence was on 14.09.2013, but according to the prosecution, the occurrence was only on 16.09.2013. The learned Additional Public Prosecutor would submit that this is only a small discrepancy, which would not go to the root of the case of prosecution. The learned Additional Public Prosecutor would submit that there are no reasons to reject the evidences of P.Ws. 1 to 3. He would further submit that so far as the hand bag is concerned, P.W. 5 has explained that the same was not produced before the court because it was already damaged in the occurrence. The learned Additional Public Prosecutor would further submit that the act of the accused would squarely fall under Section 397 IPC.
7. I have heard the above submissions.
8.Ofcourse, it is true that P.Ws.1 and 2 are educated witnesses but it does not mean that such educated people won't commit any mistake due to loss of memory. In this case, they have stated that the occurrence was on 14.09.2013, whereas according to the case of prosecution the occurrence was on 16.09.2013. In my considered view, when the entire evidences of P.W.s 1 and 2 are considered, it is very obvious that the above is only a small discrepancy, which would not, in any manner, create doubt in the evidence of P.Ws 1 and 2.
9. It is true that the hand bag has not been produced in the Court. The explanation offered by the Inspector of Police that the hand bag was not produced before the Court was, it was already torn. This explanation, ofcourse, cannot be accepted. It is not the case of the prosecution that the hand bag was not produced to the police. P.W.1 has stated that the accused was produced in the Station along with the hand bag. But, for the reasons best known to the police, the same has not been produced to the court. For the default committed by the Investigating Officer, the evidence of P.W.s 1 and 2 cannot be doubted.
10.Next, the learned counsel would submit that even assuming that the entire allegations are true, the offence would not fall under Section 397 IPC. In this regard, I have no hesitation to accept the said contention. In order to make out this offence under Section 397 IPC, at the time of committing robbery, the offender should have used any deadly weapon or should have caused grievous hurt to any person or to have attempted to cause death or grievous hurt to any person. In this case, no injury was caused to anybody by the accused. It is true that the accused was having a Chisel in his hand. The said weapon may be termed as a deadly weapon. But there is no evidence to show that the same was used by the accused for committing robbery. Therefore, the act of the accused would not fall under Section 397 IPC and instead, it would fall only under Section 392 IPC. The accused had only caused a fear of instant hurt. Therefore, he is liable to be punished under Section 392 IPC.
11. Now, turning to the quantum of punishment, according to the learned Additional Public Prosecutor, the accused has got previous cases of theft, but no records have been produced before the trial court to prove the same. It is submitted by the learned counsel for the appellant that from the records, it could be culled out that the accused is a poor man. Having regard to the above aggravating as well as mitigating circumstances, I deem it appropriate to impose a sentence of rigorous imprisonment for 4 years for the offence under Section 392 IPC and a fine of Rs.1,000/-.
12.In the result, this appeal is partly allowed in the following terms:
(i) the conviction of the appellant under Section 392 r/w 397 IPC is set aside and instead he is convicted for the offence under Section 392 IPC and sentenced to undergo rigorous imprisonment for 4 years and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for 1 month.
The period of sentence already undergone by the accused shall be set off under Section 428 Cr.P.C.
13.The services rendered by Mr.K.Prabhu, as a Legal Aid Counsel to argue the appal is appreciated and the Legal Services Authority is directed to pay his remuneration.
To
1.The III Additional District and Sessions Judge, Tiruchirappalli.
2.The Inspector of Police,Contonment Police Station,Trichy District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.