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K.Kalaiyan v. State - Crl. A. No.251 of 2007 [2007] RD-TN 1422 (12 April 2007)


DATED : 12.04.2007



K.Kalaiyan @ Sivankalai .. Petitioner/Accused Vs


represented by its Inspector of Police,


(Cr.No.152/98) .. Respondent/Complaint Prayer:

This Criminal Appeal has been preferred against Judgment dated 15.04.1999 made in Sessions Case No.30 of 1999 on the file of the Additional Sessions Judge, Nagapattinam. For Appellant : Mr.V. Muthukumarasamy, (Legal Aid Counsel) For Respondent : Mr.V.R.Balasubramanian, Additional Public Prosecutor. JUDGMENT

This appeal has been preferred against the Judgment dated 15.04.1999 made in Sessions Case No.30 of 1999 on the file of the Additional Sessions Judge, Nagapattinam, in which the accused has been convicted under sections 392 r/w.397 IPC and sentenced to undergo 4 (four) years R.I and a fine of Rs.2,000/- with default sentence.

2. The case of the prosecution in short is that on 19/20.03.1998 at about 2.00 a.m in the midnight while PW.1 was returning from Theatre after seeing second show of the film "Kadhale Nimmathi", the accused had waylaid at the point of knife near Pappan Cremation ground, at Velipalayam and robbed Rs.205/-, thus committing offences under sections 392 r/w.397 IPC.

3. The case was taken on file by the learned Judicial Magistrate, Nagapattinam as P.R.C.No. 21 of 1998 and after furnishing copies to the accused under section 207 Cr.P.C the learned Judicial Magistrate has committed the case to the Court of Sessions under section 209 Cr.P.C. When the accused appeared before the Court of Sessions on summons, the learned Sessions Judge has framed charges under sections 302 r/w. 307 IPC and when the accused was questioned, he pleaded not guilty.

4. Before the trial court, on the side of the complainant PW.1 to PW.7 were examined and Ex.P1 to Ex.P10 were exhibited and MO.1 to MO.3 were marked.

5. PW.1 is the complainant, who would state that while he was returning from Cinema Theatre, after seeing second show on 19/20.03.1998 at about 2.00 a.m, the accused slashed a knife and placing the same on his throat had robbed Rs.205/- from his shirt pocket and at that time Thiru. Sundarrajan, the Village President came behind him, to whom he (PW.1) had informed the occurance. He would further state that after committing the crime, the accused had informed that he is Kalaiyan, son of Krishnan and that he can inform his name (accused) to anyone and he is not afraid of it and left. Along with PW.2 he made a search for the accused but could not catch him since it was too late in the night. On the following day morning he went to the Velipalayam Police Station and preferred Ex.P1 complaint. M.O.1 is the torn shirt worn by him at the time of the occurance. M.O.2 is the knife used by the accused at the time of occurance. The police have secured the accused at about 8.00 p.m on the next day and sendword for him and when he went to the police station, he saw the accused as well as the currency notes recovered from the accused. He has also identified the currency notes as M.O.3 series.

6. PW.2 corroborates the evidence of PW.1 to the extend that on the date of occurance at about 2.00 a.m, he was returning from his party office at Nagapattinam to his village Azhinjamangalam at late night in his bicycle and while he was nearing Pappan Cremation ground , he saw the accused who was standing alone and when he enquired, he informed that he came there to attend to his nature's call and a little later when he had just crossed the electrical post, PW.1 came there in a hurry and informed him that the accused Kalaiyan, son of Krishnan had robbed Rs.205/- from his person at the point of knife and during the commission of crime his shirt was torn. PW.2 would also depose that he had also seen the accused in the same place a little while and both of them went in his (PW.2) bicycle in search of the accused but could not found him. So, PW.2 returned to Thamarai kulam along with PW.1 and decided to prefer a complaint in the following day since it was too late in the night.

7. PW.7 is the Inspector of Police, who had registered the complaint preferred by PW.1 on 20.03.98 at about 11 a.m, in Velipalayam Police Station Crime No. 152 of 1998. Ex.P8 is the copy of First Information Report. He had also seized M.O.1, torn shirt from PW.1. At about 11.45 p.m he proceeded to the place of occurance and prepared Observation Mahazar Ex.P3 in the presence of PW.3 and had drawn a rough sketch Ex.P9 in the presence of the same witness. He had examined the witness and recorded their statement and on the same day evening he arrested the accused near the Uppanaru Bridge at Azhinjamangalam and on seeing the police, the accused had made an attempt to escape and in that process he fell down and sustain injuries on the right hand and the left hand. The accused was arrested at 5.00 p.m on 20.03.1998. The accused had voluntarily given a confession statement which was recorded by PW.7 in the presence of PW.4. Ex.P10 is the admissible portion of the confession statement. In pursuance of the confession statement, the accused had taken PW.7 along with PW.4 and other witnesses to the place where he had hidden the knife which was used in the occurance and also the amount of Rs.205/- robbed from PW.1. Both the knife and the money Rs.205/- produced by the accused from the hidden place were recovered under Ex.P4 (Rs.205/-) and Ex.P5 (knife) in the presence of PW.4 . PW.5 would depose that from 6.00 p.m on 19.03.1998 till the next morning all the electrical street lights in Thamarai Kulam road upto Pappan Cremation Ground were burning. Ex.P6 is the Register maintained in the Municipal Office, Nagapattinam.

8. PW.6 is the Doctor, who had treated the accused at about 8.10 p.m on 20.03.1998 and issued Ex.P7, a copy of the Accident Register for the injuries he had sustained in the right fore arm and left arm. After completing the investigation PW.7 had filed the charge sheet against the accused on 22.6.1998 under section 392 r/w.397 IPC.

9. When the incriminating circumstances were put to the accused under section 313 Cr.P.C, he denied his complexity with the crime.

10. After going through the oral and documentary evidence let in before the trial Court, the learned trial Judge has held that the guilt under sections 392 r/w.397 IPC has been proved beyond any reasonable doubt and accordingly he has convicted and sentenced the accused to undergo four years R.I and slapped a fine of Rs.2000/- with default sentence. Aggrieved by the findings of the learned Trial Judge, the accused preferred this appeal.

11. I have heard the learned Legal Aid Counsel Thiru.V.Muthukumaraswamy and the learned Additional Public Prosecutor.

12. The learned counsel for the appellant would contend that PW.2 and PW.1 belonged to the same village and that the occurance had occurred, according to the prosecution, at the mid night. But no identification parade was conducted by the prosecution. PW.5 is an employee of the Nagapattinam Municipality. In his evidence, he would depose that all the electrical street lights at the place of occurance were burning during the mid night of 19/20.03.1998. Ex.P6 has been produced by him in support of his evidence. PW.1 would depose that after committing the crime, the accused has revealed his identity to him and left the place of occurance with a challenge that he can reveal his identity to anyone as he likes. It is pertinent to note from the evidence of PW.2 that PW.2 has also seen the accused at the place of occurance and at the time of occurance. After arrest of the accused, on the confession statement of the accused under Ex.P10, M.O.2 knife, M.O.3 series currency notes were recovered from the accused. The recovery of MO.2 and MO.3 were as per the provision contemplated under section 27 of the Evidence Act. The evidence of PW.7 in this regard has been corroborated by the evidence of PW.4. No doubt, the accused had sustained injuries at the time of arrest, according to PW.7. Immediately he was produced before PW.6, Doctor and necessary treatment has been given to him under Ex.P7. So, under such circumstances, the learned trial court has come to the conclusion that the offences under sections 392 r/w.397 IPC has been made out against the accused and accordingly convicted and sentenced the accused as indicated above. Eventhough, the minimum sentence prescribed under section 397 IPC is seven years, the learned trial Judge has imposed four years R.I and slapped a fine of Rs.2000/- with default sentence. For enhancement of sentence, the state has not preferred any appeal. Under such circumstances, this court does not want to interfere with the sentence already awarded against the accused. I do not find any reason to interfere with the findings of the learned trial Judge which is neither illegal nor infirm to warrant any interference from this Court. Under such circumstances, the Revision is dismissed confirming the Judgment in S.C.No.30 of 1999 on the file of the Additional Sessions Judge, Nagapattinam. This Court records its appreciation for the valuable service rendered by the Legal Aid Counsel Mr. Muthukumarasamy. His remuneration is fixed at Rs.2,500/- (Rupees two thousand and five hundred) only to be paid by the State Legal Services Authority. The trial Court is directed to secure the accused to undergo the unexpended portion of the sentence. mra


1. The Additional Sessions Judge,


2. The Principal Sessions Judge,


3. The Judicial Magistrate,


4. The Chief Judicial Magistrate,


5. The Public Prosecutor,

High Court,


6. The Superintendent of Central Prison, Cuddalore



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