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Sherfuddin @ Vellai v. State rep. by Inspector - C.A.NO.132 OF 1996 and C.A.NO.543 of 1997  RD-TN 281 (28 March 2003)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MR.JUSTICE V.KANAGTARAJ
C.A.NO.132 OF 1996 and C.A.NO.543 of 1997
Sherfuddin @ Vellai. .. Appellant in C.A.132/1996 1. Sampath Kumar
3. Ottaipal Murugan. .. Appellants in C.A.543/1997 -Vs-
State rep. by Inspector
of Police, Railway Police
Tambaram. .. Respondent in both the C.As. Both the above Criminal Appeals are directed against the judgment dated 10.1.1996 rendered in S.C.No.83 of 1995 by the Court of II Additional Sessions Judge, Madras as stated therein.
For Appellant in C.A.132/1996:: Mr.S.Hameed Ismail. For Appellants in C.A.543/1997: Mr.V.Padmanabhan. For Respondent: : Mr.A.N.Thambidurai,
G.A (Criminal side)
Both the above Criminal Appeals are directed against the judgment dated 10.1.1996 rendered in S.C.No.83 of 1995 by the Court of II Additional Sessions Judge, Madras, thereby convicting the appellants/ accused 1,2,3 and 5 for the offence punishable under Section 395 r/w 397 IPC. and sentencing them to undergo R.I. for 7 years.
2. The charge against the appellants/accused is that on 8.8.1993 at about 9.30 p.m. the accused joining hands with one Pandarakkannu entrained with common intention to rob one Rajagopal, who was returning from the nursing home after admitting his wife for delivery in between Kodambakkam and Nungambakkam Railway Stations, the first accused armed with iron pipe, accused Nos. 2,3 and 4 armed with button knife and standing near the door, posing threat to kill the said Rajagopal, snatched his gold chain, gold bracelet, two gold rings and one wrist watch, all worth about Rs.1,00,000/- thereby the accused committing the offence punishable under Sections 392 and 395 r/w 399 IPC.
3. The learned II Additional Sessions Judge would conduct a full trial in which the prosecution which is burdened to prove the charge against the appellants/accused beyond all reasonable doubts, would examine 16 witnesses as P.Ws. 1 to 16 for oral evidence, marked 32 documents as Exs. P.1 to P.32 besides marking 19 material objects as M.Os. 1 to 19. Only one document would be marked on the side of defence as Ex. D1. The Court of II Additional Sessions Judge, in full consideration of the oral and documentary evidence and the material objects brought-forth by the prosecution, would ultimately arrive at the conclusion that the prosecution has proved its case beyond all reasonable doubts thereby convicting the appellants/accused under Section 395 r/w 397 IPC. and sentencing them as aforementioned. Testifying the validity of the said conviction and sentence, the 5th accused has come forward to prefer the above criminal appeal in C.A.No. 132 of 1996 and the Accused Nos. 1, 2 and 3 have preferred the Criminal Appeal in C.A.No. 543 of 1997 on certain grounds as brought-forth in the grounds of appeals.
4. In his evidence, P.W.1 would depose to the effect that he is residing at Sterling Road, Chennai and he is running a chartered office therein; that his wife was admitted for delivery in a hospital at Nanganallur; that on 8.8.1993 at 9 p.m., his wife delivered a baby and by 10 p.m. he was coming by electric train to Nungambakkam along with jewels worn by his wife, which he would account for, at Kodambakkam Railway Station, all the 5 accused entrained, two of them with iron pipes; that at that time the first accused caught hold of his collar and another accused assaulted him on his head from behind, yet another accused keeping the knife at his ribs threatened him to hand over the gold chains and the bracelet and the writ watch and also the gold and diamond rings along with the cash of Rs.1000/-, which he was having in his pocket; that the first accused holding his hair made him to get down on the rear side of the platform and left him only after the train has started running; that in the ticket counter he explained the incident and the person in-charge directed him to go to Egmore and lodge a complaint and when he lodged the complaint with the Railway Police, the Head Constable told him that he could not give the complaint in the manner there and asked him to go to Tambaram and sent a constable along with him; that he went again to the Nungambakkam Police Station and lodged a complaint with the clerk and went back home; that since there was no investigation, he enquired about the same at Nungambakkam Railway Station where he was directed to go to police and give a regular complaint, as a result he came to the Tambaram Railway Police Station and lodged a complaint after 10 days and both the complaints would be marked as Exs. P1 and P2; that after a weeks time, he was examined by the police and he was called to attend to the police station after 2 to 2= months; that on 2.11.1993 the Investigating Officer and Inspector of Police came to his residence and asked him to identify the jewels and he identified the M.Os. 1 to 8 and thereafter on 22.11.1993 he identified the accused in the Central Prison, Chennai, during identification parade; that on 1.12.1993 he identified the M.O. 9; that on 14.12.1993 he identified the first accused in the identification parade at the Central Prison.
5. P.W.2 is the wife of P.W.1 and she would speak about her husband attending to her on 8.8.1993 for her delivery; that after the delivery was over, by 10.15 p.m. he left the hospital for Nungambakkam to their residence and that she gave her jewels which are among the M.Os.; that the next day he came and informed her about the occurrence and sorrowed for it.
6. P.W.3 is the booking-clerk at Nungambakkam Railway Station and this witness would depose to the effect of P.W.1 approaching him on 8.8 .1993 informed him that he had been robbed of his valuables and jewels and that he directed him to give the complaint at Egmore Police Station; that after reaching Egmore, again he came back home and asked the complaint book and the same having been given to him he made a note in it, which would be marked as M.O.1; that two days later again P.W.1 came to him and enquired about the development of the complaint lodged with him; that the police examined him.
7. P.W.4 would depose that on 1.11.1993 himself and his friend Sivaraj in order to go to Katpadi detrained at Park Station, when there was a crowd of policemen and when enquired, they came to know that the Inspector of Police had taken into custody six persons and told them that they arrested these accused and asked them to be the witnesses for the arrest of those persons and they agreed for the same. This witness would identify all the six accused independently. This witness would also depose that the first accused confessed pursuant tko which they recovered the jewels as it is in Ex.P3 in which himself and Sivaraj signed. Likewise, all the other accused No.2 to 6 also gave similar statements and they signed them and those documents would be marked as Exs.P4 to P8; that the third accused would also hand over a button knife which would be seized under the cover of Ex.P.11; that thereafter they left for Washermanpet where the police recovered an ingot to the length of 2 inches which is M.O. 5 and the same would be recovered under the cover of Ex.P. 10. Likewise, this witness would also be present at the time of recovery of M.Os. 11 to 14 under the cover of Ex.P.11 which they would sign; that the 5th accused took them to his Triplicane residence, and surrendered a gold chain along with another gold ingot which were respectively recovered under the cover of Exs.P.12 and P.13; that then the 5th accused took them to a pawn shop at Triplicane High Road from where a gold chain and a gold ring would be recovered under the cover of Exs.P14 and P15, and then he would take them to Krishnampet pawn shop and would get another property which the witness has forgotten.
8. Likewise, the second accused also took them to his sisters residence and handed over a gold chain, a button knife and a wrist watch respectively which were recovered under the cover of Ex.P.16 mahazar and his sister, from a pawn shop, got M.O.2 series two bangles and M.Os.6 to 8 which were recovered under the cover of Ex.P17 and thereafter the second accused also submitted a gold ingot M.O.5 which would be recovered under the cover of Ex.P18; the second accused along with his sister get yet another gold chain from a pawn shop near Tambaram bus stop, the sixth accused would also take them to Tharamani and would hand over one matchbox M.O.16 in which M.O.2 chain bit was kept and the same had been recovered under the cover of Ex.P19.
9. P.W.5 would depose that at Glass Factory Road, at Thiruvotriyur he is residing in his house in which the lower portion was occupied by 4 unmarried persons among whom accused No.1, 2 and 3 were also there and the monthly rent was Rs.200/-; that they came as tenants in August 1993 representing that they were working in a company; that in November the police came and they vacated from there.
10. P.W.6 is the pawn shop owner and he would depose that one Sabjabee on 21.8.1993 pledged M.O1 for Rs.1600/-; that on 1.11.1993 they asked the same and he gave it to the police who recovered them.
11. P.W.7 would depose that at Koyambedu he was having a grocery shop; that the second accused is her younger brother; that in the year 1 991, after the death of her mother, the second accused was not in the habit of paying visit to her residence; that at times he used to come; that three years back, he gave a gold ring and wanted to sell it away; that she pledged it for Rs.2100/- along with which adding Rs.400 /- more she gave Rs.2500/- to her younger brother; that a month back he gave two bits of chain stating that he found them near Railway line and feeling suspicious, she enquired with accused No.1 and 3 to 6 who confirmed the statement of the second accused and therefore, she pledged those articles along with the bangles in the same shop of Gowtham Jain for Rs.4000/-, Rs.6,000/- and Rs.10,000/- which are M.Os. 6 to 8; that on 3.11.1993 the police brought the second accused with the handcuffs and enquired her as to the receipt of the jewels from the second accused and she had exhibited the true fact of pledging the same and got them recovered from her.
12. P.W.8 is the pawn shop owner and this witness would depose that he knew P.W.7 for 5 to 6 years in the past and that she was running a grocery shop; that she pledged a gold ring for a sum of Rs.2100/-, then a gold chain for a sum of Rs.4,000/- and then 2 bangles for a sum of Rs.6,000/- and yet another gold chain for a sum of Rs.10,000/-, which are M.Os. 7 and 8 series; that on 1.11.1993 when the police asked for those jewels he entrusted them with the police.
13. P.W.9 who is a jewellery shop owner would depose that his brother's friend's mother sabjabee was known to him; that in October 1993, she gave a bit of chain for being sold stating that she collected the same from the ground; that he purchased the same for a sum of Rs.1 065/- and it is one of the items in M.O.3; that after 10 days the police came with Samsudeen and asked for the chain bit sold by Sabjabee and he entrusted the same with the police.
14. P.W.10 is employed in Telephone Office and he would depose that on 1.12.1993 when he started from home at Villivakkam and reached the Central Railway Station at 8.15 a.m. and at that time the Railway Police arrested the first accused one Valayutham was present there and at that time the first accused gave a confession statement to the effect that he would hand over the articles which got reduced into writing under Ex.P3 in which himself and Velayutham signed; that the first accused took them to Chetpet railway station and he handed over M.O.17 iron crowbar found nearby a plant which was recovered under the cover of Ex.P.20 mahazar. Then he took them to Chengalpattu, from where he introduced Kothandam Advocate Clerk and then took them to Rathanlal Jain jewellery shop at Chengalpattu bus stand wherein they would recover M.O.9 gold ring under the cover of Ex.P.21 mahazar. Then he took them to a pawn shop nearby Thiruvottriyur temple wherein another gold ring would be recovered in the same manner and then they went to Tambaram Railway Police Station where the police examined him and recorded his statement.
15. P.W.11 would depose that he was Advocate's Clerk and he knew the first accused from 13.8.1993; that the first accused and 4 others for having committed the offence of rioting, the Otteri Police caused his arrest and remanded him in Chengalpattu Court; that the first accused wanted to move bail for him and that he had entrusted a gold ring, asked him to pledge the same, further saying that he would redeem it after coming out on bail; that with the consent of his lawyer he got M.O.9 ring from the first accused and pledged the same for a sum of Rs.850/-; that when the Tambaram Railway Police approached him and asked him about the gold ring, he recovered the same from the pawn broker shop and handed over to the police; that the police enquired him .
16. P.W.12 is a pawn broker shop owner and he would depose that on 14.8.1993, P.W.11 pledged M.O.9 gold ring with him for a sum of Rs.85 0/-; that it was recovered by P.W.11.
17. P.W.13 is the Metropolitan Magistrate, George Town, Chennai who would depose that on 3.12.1993 on receipt of the order passed by the Chief Judicial Magistrate in Ex.P.23, on 14.12.1993 he conducted an identification parade at the Central Prison, Chennai and that in his presence P.W.1 identified the first accused touched his body not once but twice after rearranging the order along with others.
18. P.W.14 was the XVIII Metropolitan Magistrate, Saidapet, Chennai and he would depose that on 5.11.1993 on receipt of Ex.P.25 letter from the Chief Judicial Magistrate, he conducted an identification parade on 22.11.1993 in the Central Prison, Chennai, wherein accused Nos.2 to 6 and one Pandarakkannan @ Murugan were identified by P.W.1 touching them with his hands on many tests.
19. P.W.12 was the Sub-Inspector of Police, Tambaram Railway Police Station and he would depose that on 10.8.1993 at about 9.30 p.m. P.W.1 lodged a complaint in Ex.P.l and on receipt of which he registered a case in his station Crime No.515/1993 and pared F.I.R. under Ex. P28.
20. P.W.16 was the Inspector of Police at Egmore Railway Station and the investigating officer in the case; this witness would depose to the effect that on 10.8.1993 on receipt of information about the case around 10.30 p.m. he took up the investigation and examined P.Ws. 1 and 2 and recorded their statement and on 1.9.1993 he recorded the statement of some other witnesses; that he caused arrest of one Pandarakannu @ Murugan and the accused 2 to 6 at Park Railway Station and examined them in the presence of the witnesses; that one Pandarakannu @ Murugan also confessed to the effect that he would get the articles recovered if he was taken to the place and the same has been recorded in Ex.P.29. Then all the other accused also gave confession statement to the effect of the recovery of the items of properties involved in the case and the Investigating Officer would recover all these properties as spoken about by the witnesses. Then he would arrange for the identification parade to be held in order to identify all the accused by P.W.1, giving requisitions to the Magistrate s concerned and recovered the report of the learned Magistrate, he would record the statements of such witnesses and entrust t he M.Os. with the Court and ultimately on completion of the investigation would file the charge sheet on 27.2.1993 in the above case.
21. During arguments the learned counsel appearing on behalf of the accused in C.A.No.132 of 1996 would submit that the total number of accused are 6 out of whom the sixth accused Josef Stalin was absconding as a result of which the case was split up for the other accused and the trial was held in which the 4th accused was acquitted by the trial Court giving benefit of doubt in his favour, the other accused A1 , A2, A3 and A5 got convicted; that A1, A2 and A3 are appellants in C.A.No.543 of 1997 and A5 is the appellant in C.A.No.132 of 1996.
22. Giving a brief sketch of the occurrence the learned counsel would point out that the occurrence took place on 8.8.1993 at about 9.30 p.m. in the electric train running in between Mambalam and Sethupattu; that according to the complainant 7 persons entered into the train and at knife point they robbed the jewels on various kinds from the victim who after admitting his wife in a hospital at Nanganallur was returning back home to Nungambakkam along with jewels of his wife and that of when the occurrence is alleged to have been taken place; that two gold chains, one bracelet, one wrist watch, two rings and cash of Rs.1000/- are said to have been robbed and that the complainant after running post to pillar ultimately lodged the complaint; that all the accused excepting A1 including the omitted accused got arrested on 1.11.1993 and A1 is said to have been arrested on 1.12.l993 and their confession statements were recorded and the identification parade was held on 22.11.1993 and the complainant is said to have identified all the accused including the omitted accused. P.Ws. 1 to 16 have been examined as prosecution witnesses and Exs. P1 to P.32 and M.Os. 1 to 19 were marked; that on the defence side Ex.D1 was marked as the sole defence exhibit; that A.5's mother was cited as P.W.9 and examined; that he was released on bail on 1.6.1996; that no antecedent is attached to him.
23. The learned counsel would further point out that the trial Court has convicted the accused on the sole testament of P.W.1; that the trial Court failed to appreciate the identification parade held in a delayed manner; that even prior to the identification parade being held the photographs of all the accused were shown to P.W.l and was tutored to identify the accused including the appellant; that the trial Court relied on the identification parade and passed the judgment convicting the accused, which cannot be sustained; that Ex.P.2 report was lodged only after two days; that the delay in lodging the FIR goes deep into the root of the prosecution case and as such the conviction cannot be sustained; that Ex.P1 discloses only 5 persons should have committed the offence of dacoity whereas the charge sheet named 7 persons as accused including one Pandarakannu @ Murugan but curiously enough before the trial Court the said Pandarakannu @ Murugan was missing in spite of he being identified by P.W.1 in the identification parade and the judgment is silent about the said person thus leading to suspicion; that the trial Court also failed to appreciate the manner in which the arrest is said have been caused; that P.W.9's evidence clearly reveals that the appellant has not been implicated at all with regard to the recovery and as such the conviction and sentence passed against him cannot be sustained; that the trial Court having acquitted the 4th accused on ground that no recovery of articles was effected through him and the trial Court ought to have applied the same principal to the appellant/5h accused also. On such grounds the learned counsel would pray for setting aside the conviction and sentence passed against the appellant/5th accused.
24. So far as the learned counsel appearing on behalf of the other accused in the other appeal in C.A.No.543 of 1997 he would adopt the arguments advanced on the part of the other appellant as aforementioned and would not bring out anything new so far as these accused are concerned.
25. On the part of the respondent learned Government Advocate on the Criminal side would sail along with the judgment of the trial Court and would point out that it is a case wherein dacoity committed in the running train; that all the accused joining hands with each other and at the knife point and other arms; that the jewels lawfully belonging to P.W.1 have been robbed and all the items have been recovered from one accused or other and they have been accounted for by the prosecution including as to how they were recovered and from whom etc.; that P.W.1 would not only identified the accused in the identification parade held by the Magistrate, but also would identified the jewels robbed from him and no element of doubt could be entertained regarding these vital aspects are concerned; that regarding the facts as narrated by P.W.1 he has not only spoken evidence in the same before the Court in detail but has also explained as to how he was driven from post to pillar in receiving the complaint by the authority from Nungambakkam Railway Police by the police in Egmore police station and by Tambaram Police Station authorities and ultimately the case was registered; that Exs.P1 and P2 would narrate as to why the delay has been occurred and therefore this is not a case that would suffer in any manner on account of delay in lodging the complaint since the delay has been well explained. On such averments the learned Government Advocate would ultimately end up saying that the lower Court has arrived at a correct conclusion in delivering a convicting judgment and sentencing the accused in the manner that it has done and hence would pray to confirm the conviction and sentence as passed by the trial Court.
26. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for all it is a case of daring dacoity committed in a running train by all the accused joining hands with each other and armed deadly weapons and by threat to the life of P.W.1 the complainant they have robbed all the jewels brought along with him after admitting his wife for delivery in a hospital near her parental abode Nanganallur and the occurrence has taken place on 8.8.1993 at about 9.30 p.m.; that having committed the offence the accused have let of the P.W.1 while the train was started running from the Nungambakkam Railway Station and P.W.1 had immediately ran to the ticket counter and lodged a complaint but the person in-charge of the ticket counter had directed him to go to the Egmore Police Station and lodge a complaint with the Railway Police as a result of which P.W.1 had gone there and as directed by them he had again come to the Nungambakkam Railway Station and made a note in the complaint book and after a couple of days on advice, he has gone to the Tambaram Railway Police Station and lodged a regular complaint which are born by Exs.P1 and P2 respectively dated 8.8.1993 and 10.8.1993 and in the above circumstances it cannot at all be pleaded that there has been any delay in lodging of the complaint.
27. A total number of sixteen witnesses have been examined including the complainant as P.W.l, his wife as P.W.2 and the other witnesses being mahazar witnesses recovery witnesses, arrest witnesses the Magistrates who conducted the identification parade and the police witnesses. Likewise, 32 documents would be marked as Exs.P1 to P32 including Exs. P1 and P2 as aforementioned, confession statements of the accused including that of the absconding accused pursuant to the admissible portion of which recoveries were effected have been marked as Exs. P3 to P8, the recovery mahazars would be marked as Exs.P9 to P21, the identification parade proceedings, requisitions and the reports would marked as Exs. P22 to P27, the FIR would be marked as Ex.P28, the confession statement of one Pandarakannu @ Murugan would be marked as Exs.P.29, the bill for purchase of balance would be marked as Ex. P30 and the police requisitions would be marked as Exs.P31 and P32 besides these all the recoveries including the jewels, the weapons wielded by the accused and such other items would be marked as M.Os. 1 to 19.
28. The study of the evidence of witnesses through whom the exhibits and M.Os. were marked would reveal that they have adduced evidence in a cogent and coherent manner bringing out the case of the prosecution with the chain of events from the time of the occurrence till the end of all the recoveries were effected the accused arrested and the charge sheet laid on completion of the investigation in the natural manner in which these witnesses have adduced evidence is highly reliable particularly in view of the fact that absolutely no motive has been attributed by any of these witnesses by the defence.
29. It is much is loiter by the defence about one Pandarkannu @ Murugan having been shown as an accused right from the beginning but let off without affording any reason in the trial which is a omission on the part of the prosecution and the same does not in any manner affected the main frame of the prosecution case that is proved against all these accused absolutely and there is no ambiguity or improbability or any artificiality has been attached either for the arrest of the accused or for the identification of the accused by P.W.1 in the identification parade held or the confession statements of the accused recorded pursuant to which the recoveries of the jewels robbed from P.W.1 was made and all such acts have been done by the prosecution adhering to the legal norms without crossing the barriers and there is absolutely no reason to entertain any doubt or suspicion in the manner the case of the prosecution has been brought on record through the oral and documentary evidence and through the material objects and the manner in which the recoveries have been effected.
30. The trial Court having traced all the facts and circumstances of the case as put-forth on the part of the prosecution and in fact having conducted a thorough trial into these facts and circumstances and further having recorded the evidence in the manner required by law and appreciating the same properly has arrived at a valid conclusion to confirm and sentence against the accused in the manner extracted supra and this Court is not able to see any infirmity or inconsistency or lack of opportunity or perversity in appreciation of the evidence and therefore, the interference of this Court sought to be made into the well considered and merited judgment of the trial Court is neither necessary nor warranted in the circumstances of the case and hence the following judgment.
(i) both the above Criminal Appeal Nos.132 of 1996 and 543 of 1997 fail and they are dismissed;
(ii) the judgment dated 10.1.1996 rendered in S.C.No.83 of 1995 by the Court of II Additional Sessions Judge, Madras is hereby confirmed. Index:Yes
1. The Inspector of Police, Railway Police Tambaram. 2. The II Additional Sessions Judge, Madras.
3. The Public Prosecutor, High Court,Madras.
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