CRL A/1234/2001 of RAVI @ STEEL RAVI Vs STATE: REP.BY THE INSPECTOR OF on 4 December 2002

:JUDGMENT

This Criminal Appeal is directed against the judgment ofconviction and sentence passed by the learned Additional Sessions Judge (FastTrack Court No.1), Erode made in S.C. No.7 of 2001 dated 10.12.2001.

2. The charge against the appellants/convicts No.1 to 4 is that on 19.4.2000 at about 10.30 a.m., appellants/A.1 to A.4, who arrived atthe scene of occurrence that is on the South of the Cauveri Bridge betweenErode and Pallipalayam in two motor cycles joining hands with each other,threatened and injured P.W.1, Kishore, who after taking bath in the Cauveririver, was coming near the bridge and at the point of knife snatched away agold chain weighing 1+ sovereigns worn by him and cash of Rs.1,500/= and theIdentity Card, which were contained in a bag and thereby appellants/A.1 to A.4became punishable for the commission of an offence under Section 395 r/w. 397

IPC.

3. During trial, the prosecution in its endeavour to prove its case beyond all reasonable doubts would examine 7 witnesses as P.Ws.1 to7, besides marking 13 documents as Exs.P.1 to P.13 and 5 material objects asM.Os.1 to 5. On the part of the appellants/accused, they would also examineone K.Karunakaran as the sole defence witness as D. W.1, besides markingthree documents as Exs.D.1 to D.3.

4. So far as the witnesses examined on the side of the prosecution are concerned, P.W.1 is the victim Kishore, P.W.2 is his friendPandian, who is said to have accompanied P.W.1 for a picnic to the spot, P.W.3is the Doctor attached to the Government Hospital, Erode, who examined P.W.1medically, P.W.4 is the Village Administrative Officer, P.W.5 is the mahazar witness, P.W.6 is the Head Constable and P.W.7 is the Inspector of Police andthe Investigating Officer, both P.Ws.6 and 7 attached to KarungalpalayamPolice Station.

5. So far as the documents marked on the prosecution side are concerned, Ex.P.1 is the complaint, Ex.P.2 is Form 95, Ex.P.3 is the accidentregister, Exs.P.4 to P.6 are the admissible portions of the confessionstatements of A.1, A.2 and A.3 respectively, Exs.P.7 to P.9 are the seizuremahazars respectively for the recovery of the knife and gold chain, anotherknife and watch and Suzuki motor cycle, Ex.P.10 is the observation mahazar,Ex.P.11 is the printed F.I.R., Ex.P.12 is the rough sketch and Ex.P.13 is yetanother Form 95.

6. Regarding the material objects, M.O.1 is the shirt, M.O.2

is the gold chain, M.O.3 is the knife with the wooden handle, M.O.4 is anotherknife with mica handle and M.O.5 is the Suzuki motor cycle bearingRegistration No.TN 47C 1905.

7. So far as the evidence of D.W.1 is concerned, he is said to have been working as the Librarian in Kandasamy Naidu College, Madras andhe would depose to the effect of what are the faculties available in the saidcollege, particularly stating that there is no B.A. English Literature orB.A. History courses offered by the said College.

8. So far as the documentary evidence is concered, Ex.D.1 is the prospectus of the Kandasamy Naidu College for the year 2001-2002, Exs.D.2and D.3 are the relevant pages of the Diaries of the said College for the year1998-99 and 2000-2001 respectively.

9. The trial court, in consideration of these evidence placed

on record and applying the same to the facts and circumstances of the case ofthe prosecution, would ultimately arrive at the conclusion holding all thefour accused guilty of the offence charged, thus convicting them under Section395 r/w. 397 IPC and sentencing them each to undergo R.I. for 10 yearsfurther imposing a fine of Rs.2,500/= each, in default to undergo a furtherperiod of six months R.I. It is only testifying the validity and challenging the said judgment of the lower court dated 10.12.2002, the appellants/accused1 to 4 have come forward to prefer the above appeal on grounds as could beseen from the grounds of appeal. In general, the appellants would allege thatthe trial Court ought not to have relied on the testimony of P.Ws.1 and 2, butit should have attached weightage to the evidence of D.W.1 which reflected onthe credibility of P.Ws.1 and 2, who are interested witnesses. Likewise, theappellants would further allege that the Court below ought not to have reliedon the evidence of P.W.4, who is a stock witness to the respondent/police andon Exs.P.4 to P.9 in the absence of independent corroboration. The grounds ofappeal would also mention about the contradictions among the testimony ofP.Ws.1,6 and 7 and Exs.P.1 and P.11 and would question the delay caused incertain documents and material objects reaching the Court. The appellantswould Ultimately pray to set aside the conviction and sentence and set them atliberty passing an acquittal judgment allowing the appeal in full.

10. During arguments, the learned counsel appearing on behalf of the appellants, would, at the outset point out that framing of the chargeand convicting the appellants for an offence punishable under Sections 395r/w.397 IPC itself is erroneous and illegal since it is the definite case ofthe prosecution that only these four appellants indulged in the commission ofoffence as narrated in the case of the prosecution and without at least fivepersons joining hands with each other and indulging in such acts of robbery,no trial under Section 395 IPC could be held nor the accused convicted andtherefore the conviction and sentence passed against the appellants for theoffence punishable under Section 395 r/w. 397 IPC cannot be sustained in law.

11. The next attack of the learned counsel for the appellants is against P.W.4, the Village Administrative Officer and the mahazar witnessfor the recovery, confession etc. of accused No.1 to 3 as per Exs.P.4 to P.6on ground that he has already figured as witness in six cases as admitted by him in his evidence and therefore would submit that the evidence of thiswitness cannot be relied upon for convicting the appellants which the lowerCourt has miserably failed to consider in its proper perspective.

12. The learned counsel would then focus his attention on the identification of the accused by the witnesses which had taken place only inthe Court hall since no identification parade was held as it is required inlaw. At this juncture, the learned counsel would cite four judgments asfollows:

(i) AIR 1982 SC 948 (BHURE KHAN vs. STATE OF MADHYA PRADESH)

(ii) (1977) 4 SCC 420 (BIR SINGH AND OTHERS vs. STATE OF UTTAR PRADESH)

(iii) (1982) 2 SCC 72 (MANZOOR vs. STATE OF UTTAR PRADESH)

(iv) (1983) 1 SCC 143 (MOHD. ABDUL HAFEEZ vs. STATE OF ANDHRA PRADESH)

13. So far as the first judgment cited above is concerned, it is a case wherein the accused was found in possession of torch and currencynotes and since the same was not satisfactorily proved as forming part ofcorpus delicti and the victim also failed to identify the accused in twoidentification parades held, the Honourable Apex Court held that the accusedis not liable to be convicted under Section 397 IPC.

14. The second judgment cited above is a case of appeal against acquittal wherein the trial Court rejected the prosecution caseremarking that the same is based on uncorroborated testimony of interested andpartisan witnesses and drawing adverse inference on failure to examineindependent witnesses named in the FIR and on appeal the High Court reversedthe findings of the trial Court and convicted the accused. On further appeal,the Honourable Apex Court has held that `such a view in the present case wasneither manifestly wrong nor perverse nor unreasonable so as to justifyreversal of the acquittal by the High Court since possibility of another viewwas not sufficient and the High Court's opinion was based on conjectures.' Ithas been further held therein:

"The prosecution, though generally not bound to produce every eyewitness, itmust examine all the eye-witnesses when some of them are interested andrequire corroboration in which event adverse inference on non-examination ofindependent eye-witnesses mentioned in the FIR has been held justified."

15. In the third judgment cited above, which is also by the Honourable Apex Court, it is held on facts that `where at the earliestopportunity, the eye-witnesses failed to mention any identifying features ofthe accused persons when they were examined by Investigating Officer, theidentification of the accused by one of the witnesses nearly two months laterin test identification parade is suspicious.'

16. In the last judgment cited above, the names or description of four accused persons were not given in FIR and no testidentification parade was also held and the accused persons were identifiedonly before the Court four months after the occurrence, and in suchcircumstances, the Honourable Apex Court has held that `such identification isnot reliable in connecting the accused with the occurrence.'

17. The learned counsel for the appellants, citing the above judgments would point out that in the case in hand, the complainant identifiedthe accused persons in the Court i.e. after one year after the incident andwould cite a judgment of the Honourable Apex Court delivered in MANGILAL &OTHERS vs. STATE OF MADHYA PRADESH reported in 1990 (2) MWN (Cr.) S.C.wherein it has been held:

"Where the evidence of sole eye-witness is not supported by medical evidenceas contrary to natural conduct of any similar person, no reliance can beplaced on it."

18. Yet another judgment would also be cited by the learned counsel for the appellants is one delivered by the Honourable Apex Court inTHE STATE OF U.P. vs. HARI PRASAD AND OTHERS reported in (1974) 3 SupremeCourt Cases 673 wherein it has been held:

"It is never incumbent on the prosecution to prove the motive for the crime.

Often times, a motive is indicated to heighten the probability that theoffence was committed by the person who was impelled by that motive. But, ifthe crime is alleged to have been committed for a particular motive, it isrelevant to inquire whether the pattern of the crime fits in with the allegedmotive."

"It is not open to the prosecution to ask the Court to discard the verysubstratum of their case and to construct a new theory founded on a hypothesispresented for the first time before the Supreme Court."

19. Further pointing out that P.W.1 would mention only three names in his complaint, but there are four accused in the case and there wasenormous delay of 12 hours in lodging the Ex.P.1 complaint, the learnedcounsel for the appellants would cite a judgment of the Honourable Apex Courtdelivered in RAM JAG AND OTHERS vs. THE STATE OF U.P. reported in (1974) 4SCC 201 wherein it has been held:

"It is true that witnesses cannot be called upon to explain every hour's delayand a commonsense view has to be taken in ascertaining whether the FirstInformation Report was lodged after an undue delay so as to afford enoughscope for manipulating evidence. Whether the delay is so long as to throw acloud of suspicion on the prosecution case must depend upon a variety offactors which would vary from case to case. Even a long delay in filingreport of an occurrence can be condoned if the witnesses on whose evidence theprosecution relies have no motive for implicating the accused. On the otherhand, prompt filing of the report is not an unmistakable guarantee of thetruthfulness version of the prosecution."

20. The learned counsel for the appellants would also point out that the material objects in this case were not sent to the chemicalanalysis and would cite a judgment of the Honourable Apex Court delivered inSATYANARAIN vs. STATE OF MADHYA PRADESH reported in 1972 SCC ( Cri.) 591. Itis a case of murder and the F.I.R. was lodged by a non eye-witness withoutmentioning the name of the accused and even eyewitnesses are not consistentabout the participation of the accused in murdering the deceased, but a lathiwithout blood stains and some clothes containing washed stains of blood wererecovered at the instance of appellant, however, the clothes were not sent forchemical examination and in such circumstances, the Honourable Apex Court heldthat `where evidence of other witnesses not corroborating eye-witness, theconviction of the appellant cannot be sustained.' On such arguments, thelearned counsel for the appellants would pray to allow the above criminalappeal.

21. On the other hand, the learned Government Advocate on the criminal side would point out that regarding the charge, the anomaly that hasoccurred has not been pleaded before the lower Court for consideration.Regarding the delay in lodging the complaint, the learned Government Advocateon the criminal side would point out that immediately after the occurrence wasover, the injured/P.W.1 went to the Hospital and having received medical aidfor the injuries sustained by him and after having a discussion with hisfriends, he along with his friends went to the Karungalpalayam police stationand lodged the complaint therein and hence the delay that has occurred in lodging the Ex. P.1 is quite natural and no manipulation could be attributedfor the same.

22. The learned Government Advocate would then submit that

when the complainant has very clearly identified the accused by their namesand further he himself having suffered in the assault and robbery at the pointof knife, the question of conducting the identification parade does not ariseat all and therefore the entire argument advanced on the part of the learnedcounsel for the appellants for the identification parade having not conductedin the case in hand is a waste and irrelevant since no such identificationparade became necessary in the circumstances of the case. On such arguments,the learned Government Advocate would ultimately pray to sustain theconviction and sentence as ordered by the Court below.

23. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for theappellant and the learned Government Advocate on the criminal side as well, atthe outset it should be admitted that since the accused are only four innumber, as maintained by the prosecution right from the beginning till thelower Court delivering the judgment, the question of Section 395 IPC eitherfiguring in the charge or during trial much less for convicting and sentencingthe appellants/accused under the said specific penal provision of law, doesnot arise at all since for an offence of dacoity, as per the definitionSection 391 IPC, there must be at least five accused required to have beeninvolved in the offence and therefore Section 395 IPC has absolutely no placeto creep in anywhere in the case of the prosecution, which legal flaw thetrial Court has miserably failed to note under manifest misconception of law.However, it cannot be said that Section 395 IPC is the only Section underwhich either the case has been charged or tried and decided since the otherSection 397 IPC has also been accompanied by the Section 395 IPC. Hence, sofar as the case put-up by the prosecution pertaining to its facts andcircumstances is capable of being maintained for the offence punishable underSection 397 IPC alone independently and therefore, though the trial Court hasthoughtlessly added Section 395 IPC also, which cannot be done in law, still,it cannot be said that the prosecution does not have a case because of addingof the Section 395 IPC also, therefore, it has become paramount on the part ofthis Court to find out whether to maintain a conviction and sentence underSection 397 IPC, enough materials have been made available on record by theprosecution in its attempt to prove its case to the extent of the requirementsof this Section.

24. P.W.1 is the injured witness, who, in Ex.P.1 itself has very clearly stated not only the identification of each and every one of thefour accused, but also their names and therefore at the outset itself, it isfor anyone's presumption that there is no ambiguity or confusion inidentifying the accused particularly when P.W.2, yet another witness, was alsopresent at the spot. Both these witnesses have not only identified all theaccused in the Court but also are definite about as to what happened on thedate, time and place of occurrence thus adhering the case put-up on the partof the prosecution. It is a daring robbery indulged in by all the fouraccused in the open day light when P.Ws.1 and 2 and their friends have gone to

the spot for taking bath in the Cauvery as one of their tour programmes, theybeing students of a city college at Chennai.

25. Much has been loitered by the defence pertaining to the nonavailability of the English Literature subject in Kandasamy College, AnnaNagar, Chennai whereas Ex.D.1 would bear a different name as Ko. KandasamyNaidu Men's College, Arignar Anna Nagar, Chennai-102 and it is doubtfulwhether this is the College that is meant on the part of P.W.1 since there maybe many other Colleges more or less in the similar name, which has not beenestablished at the outset on the part of the defence. Even otherwise, thisminor issue is not going to deny the occurrence that had taken place on19.4.2000 at about 10.30 a.m. on the South of the Cauveri Bridge betweenErode and Pallipalayam wherein from P.W.1 not only his belongings were robbedby the appellants/accused but also with dangerous weapons have inflictedinjuries on P.W.1's person as a result of which the non-availability of thefaculty said to have been there is almost irrelevant in consideration whetherthe prosecution has proved its case beyond reasonable doubts.

26. Besides P.Ws.1 and 2, who were at the spot, the Doctor attached to the Government Hospital, Erode would be examined as P.W.3 and hewould adduce evidence satisfactorily to the effect of his examining P.W.1medically and effecting entries into Ex.P.3 accident register. No motivescould be attributed nor any infirmity or inconsistency could be alleged connecting the evidence of P.W.3 with that of the version of P.Ws.1 and 2 andtherefore so far as these witnesses are concerned, the prosecution case shouldbe held well founded.

27. Coming to the evidence of the other witnesses, P.W.4 is the Village Administrative Officer, who, accompanied by P.W.5, would appear asmahazar witnesses and witnesses for the recovery of the knives, gold chain,watch and motor cycle, for the observation mahazar and for the confessionstatements of A.1 to A.3 separately made and there is no proper or tangiblereason for finding or under-estimating the evidence of these witnesses P.Ws.4and 5 and just for the simple reason that P.W.4 being the VillageAdministrastive Officer, has already appeared as the mahazar witness in manyother cases, his witnessing the events narrated above in the case in hand,cannot be falsified nor discredited and such evidence is only acceptable inthe legal parlance. Moreover, his evidence is supported by the evidence ofP.W.5 also and therefore, the prosecution case, in no manner, gets eitherweakened or faded on such accusations made on the part of the defence.

28. The other witnesses - P.Ws.6 and 7 - are the Head Constable and the Inspector of Police and the Investigating Officerrespectively. It is P.W.6, who, on receipt of the Ex.P.1 complaint,registered the F.I.R. and sent it expressly to the Court and higher officialsfurther giving intimation to the Investigating Officer about the occurrence onwhich it is P.W.7, the Inspector of Police and the Investigating Officer,taking up the case for investigation visited the spot and not only preparedEx.P.10 observation mahazar, Ex.P.12 rough sketch but also under the cover ofEx.P.13-Form 95 recovered the M.Os.1 to 5 and after examining all the

witnesses including the medical witness he laid the charge-sheet before thejurisdictional Magistrate's Court against all the four accused for the offencepunishable under Section 395 r/w.397 IPC.

29. As already pointed out, though Section 395 had also been added wrongly, still, the sanctity of the prosecution case under Section 39 7IPC does not, in any manner, is lost nor even become stale and therefore theonly point for consideration in these circumstances is ` whether theprosecution has proved its case for the offence under Section 397 IPC, beyondall reasonable doubts?'

30. All the theft articles including the motor cycle, which the accused used to come to the spot, have been recovered from the accused,which is a major pointer in proof of the case of the prosecution and no majorset-back has occurred to the prosecution case in any manner since all thewitnesses have spoken to their part played in the prosecution case in areliable manner, starting from P.W.1 ending with the InvestigatingOfficer-P.W.7. The sole witness examined on the part of the defence in proofof the fact that no English Literature faculty is available in the KandasamyNaidu College, Chennai, as earlier stated, does not in any manner improve thedefence case nor his evidence makes any dent in the structure of the caseput-up by the prosecution and therefore easy conclusions could be arrived atto the effect that the prosecution has proved its case to the standard ofproof required by law i.e. with proof beyond reasonable doubts so far as thecase put-up on the part of the prosecution for an offence under Section 397IPC committed on the part of the appellants/accused as against P.Ws.1 and 2and their friends in the manner projected by the prosecution is concerned.

31. The prosecution case has been quite naturally and in a reliable manner proved by such oral, documentary and material evidence withoutleaving any doubt in the mind of the Court, in the bringing home of the guiltof the accused and there is no laxity or lacuna or inconsistency or infirmityof any kind so as to warrant the interference of this Court into theconviction and sentence ordered by the trial Court which could very well bemaintained for an offence proved under Section 397 IPC. In the abovecircumstances, this Court could only arrive at the conclusion that theprosecution has proved its case beyond all reasonable doubts for thecommission of the offence under Section 397 IPC though under Section 395 IPC,no offence could be made out since the accused were only four in number.

In result,

(i) the appeal fails and the same is dismissed;

(ii) The appellants/accused are found guilty of the offence punishable underSection 397 IPC., instead of their conviction for the offence punishable underSection 395 r/w.397 IPC, as passed by the trial Court i.e. the Court ofAdditional Sessions Judge, Fast Track Court No.I, Erode in S.C. No.7 of 2001dated 10.12.2001.

(iii) The conviction and sentence of imprisonment and fine under Section 397IPC as passed by the trial Court is confirmed.

4.12.2002.Index: YesInternet: YesRao

To

1. The Additional Sessions Judge,Fast Track Court No.I,Erode.

2. The Public Prosecutor,High Court, Madras.