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BABU versus THE STATE REP. BY

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Babu v. The State rep. By - Criminal Appeal No.234 of 2004 [2007] RD-TN 1440 (13 April 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 13/04/2007

CORAM

THE HONOURABLE MR. JUSTICE P. MURGESEN

Criminal Appeal No.234 of 2004

Criminal Appeal No.274 of 2004

Criminal Appeal No.411 of 2004

Babu .. Appellant in C.A.No.234 of 2004/A3 Pandi alias Palpandi .. Appellant in C.A.No.274 of 2004/A2 Suersh alias Ramesh .. Appellant in C.A.No.411 of 2004/A1 Vs

The State rep. By

the Inspector of Police,

Thuvarankurichi Police Station,

Thuvarankurichi.

.. Respondent in all the C.As. Criminal Appeals filed under Section 374 of Crl.P.C. against the Judgment dated 9.2.2004 passed in S.C.No.366 of 2002 by the learned Additional District and Sessions Judge (Fast Track Court No.II), Tiruchirapalli. For Appellant in :No appearance

C.A.No.234 of 2004/A3

For Appellant in :S.Vijayakumar

C.A.No.274 of 2004/A2

For Appellant in : Mr.C.Mayilvahana Rajendran C.A.No.411 of 2004/A1

:C O M M O N J U D G M E N T



These appeals are directed against the Judgment dated 9.2.2004 passed in S.C.No.366 of 2002 by the learned Additional District and Sessions Judge (Fast Track Court No.II), Tiruchirapalli.

2.The appellant in Crl.A.No.411 of 2004 is A1; the appellant in Crl.A.No.274 of 2004 is A2 and the appellant in Crl.A.No.234 of 2004 is A3. Since all the appeals arose out of the same Judgment, common Judgment is pronounced.

3.The brief facts of the case as projected by the prosecution is as follows:

i)P.W.1-Ambiga was the Headmistress of of Adaikanpatti Panchayat Union Primary School and P.W.2-Rajathi was the Teacher in that School. Both of them used to travel from Trichy to attend the School and return back to their homes in the evening.

ii)On 18.4.2002 at about 4.30 p.m., after the school hours, both of them were waiting for the bus in the Thuvarangurichi Main Road in front of the St.Antony's Matriculation School. At that time, three persons came in a Motor Cycle and

they got down near them. The first accused threatened P.W.1 with a knife and snatched away the golden chain from her and pushed her down. When P.W.2 came to rescue, the first assaulted her and attempted to snatch her 'thali kodi'. However, P.W.2 hold her 'thali kodi' and shouted. She sustained injury on her right side of the neck. On hearing the hue and cry raised by P.Ws 1 and 2 persons nearby gathered for their rescue. On seeing them, the accused left the place.

iii)Then P.W.1 went to the Thuvarangurichi Police Station and gave a complaint Ex.P1 to P.W.5- Head Constable attached to that Station. He received the complaint from P.W.1 and registered the case in Crime No.68 of 2002 under Section 397 IPC and prepared the printed F.I.R. Ex.P4. He also gave a memo to P.W.2 and sent her for treatment.

iv)On the basis of the memo given by the Police, Doctor-P.W.3 attached to Thuvarangurichi Government Hospital examined P.W.2 and found the following injury and gave her treatment:

"1.Liner-centrism on the right side of the neck." Ex.P2 is the Accident Register.

v)On 18.4.2002, P.W.8 was the Inspector of Police attached to Edamalaipatti Police Station. He received the statement from one Swaminathan, Head Constable and registered the case in Station Crime No.98 of 2002 under Sections 332, 353 and 307 IPC and arrested three accused who are also the accused in the present case. All the three accused gave a separate confessional statements in the presence of P.Ws 6 and 7. Exs. P6 to 8 are the confessional statements. At the time of checking their finger prints, he recovered five packets weighing five grams each, including one packet of chilly powder, a knife and the Motor Cycle. At about 8.30 p.m., from the second accused he recovered a broken gold chain weighing about three sovereigns-M.O.1, a knife and a 'Ganja packet' weighing about 5 grams. He prepared a Mahazar-Ex.P10 in the presence of P.Ws 6 and 7. At about 12.30 hours, P.W.8 recovered five packets containing about 5 grams of 'Ganja" from A1. P.W.8 also examined the witnesses P.Ws 6 and 7 and recorded their statements and completed his investigation. vi)The further investigation was conducted by P.W.9-Inspector of Police attached to Thuvarangurichi Police station. He visited the scene of occurrence at 6.15 p.m. and prepared the observation mahazar Ex.P3 in the presence of the witnesses P.W.4

and one Palanisamy. He also prepared a sketch-Ex.P11. He examined P.Ws 1 and 2 and recorded their statements. He sent M.O.1-golden chain which was recovered by the Inspector of Police, Edamalaipatti Pudhur Police Station, to the Court and on 22.4.2002 he gave a requisition to the Judicial Magistrate, Manapparai to remand the accused. He also gave a requisition to the Magistrate for conducting the identification parade. On 28.5.2002, P.Ws 1 and 2 identified the accused before the Magistrate. P.W.9 also examined P.Ws 6 and 7 and recorded their statements. He also examined Doctor-P.W.3, recorded her statements and obtained the Accident Register-Ex.P2. He completed the investigation on 8.6.2002 and filed a charge sheet against the accused under Sections 394, 398, 397 r/w 34 IPC.

4.The prosecution, in order to bring home the charges against the accused, examined P.Ws 1 to 9, filed Exs P1 to P11 and marked M.O.1.

5.When the accused were questioned under section 313 Cr.P.C., in respect of the incriminating materials appearing against them through the evidence adduced by the prosecution, all the accused denied their complicity in the crime and they have stated

that they have been falsely implicated in the case.

6.On consideration of the evidence, the learned Additional District Judge, FTC II, Trichy, found the accused guilty and sentenced them to imprisonment as detailed below:

Accused

Conviction under section

Sentence imposed

A1

394 of IPC

4 years rigorous imprisonment

with a fine of Rs.1,000/- in default 6 months R.I. 394 r/w 511 of IPC

4 years rigorous imprisonment

397 of IPC

7 years rigorous imprisonment

A2 & A3

394 r/w 34 of IPC

4 years rigorous imprisonment for each of them with a fine of Rs.1,000/- each, in default 6 months rigorous imprisonment.

The learned trial Judge ordered the sentences to run concurrently.

7.Challenging the order of the learned trial Judge, the above appeals have been preferred by the accused.

8.POINT FOR DETERMINATION:

1.Whether the prosecution has proved the case against the accused beyond doubt ?

9.P.W.1-Ambiga was the Headmistress of of Adaikanpatti Panchayat Union Primary School and P.W.2-Rajathi was the Teacher in that School. Both of them used to travel from Trichy to attend the School and return back to their homes. On 18.4.2002 at about 4.30 p.m., after the school hours, both of them were waiting for the bus in the Thuvarangurichi Main Road in front of the St.Antony's Matriculation School. At that time, three persons came in a Motor Cycle and they got down near them. According to the prosecution that the first accused threatened P.W.1 with a knife and snatched away the golden chain from her and pushed her down. When P.W.2 came to rescue, the first assaulted her and attempted to snatch her 'thali kodi'. However, P.W.2 hold her 'thali kodi' and shouted and in the course of which she sustained injury on her right side of the neck. On hearing the hue and cry raised by P.Ws 1 and 2 persons nearby gathered for their rescue. On seeing them, the accused left the place.

10.Then P.W.1 went to the Thuvarangurichi Police Station and gave a complaint Ex.P1 to P.W.5- Head Constable attached to that Station. He received the complaint from P.W.1 and registered the case in Crime No.68 of 2002 under Section 397 IPC and prepared the printed F.I.R. Ex.P4. He also gave a memo to P.W.2

and sent her for treatment. On the basis of the memo given by the Police, Doctor-P.W.3 attached to Thuvarangurichi Government Hospital examined P.W.2 and gave her treatment:

11.Now the learned counsel for the appellants argued that the identity of the accused were not established and hence the case was not proved against the accused.

12.P.Ws 1 and 2 deposed that they knew the accused. Even P.W.1 categorically stated that the first accused snatched away her golden chain at the knife point. She gave a complaint Ex.P1. In Ex.P1, she has stated that she can identify the accused. But in the complaint the physical feature of the accused were not given. The investigation Officer-P.W.9 gave a requisition to the Judicial Magistrate to conduct the identification parade. On 28.5.2002, P.Ws 1 and 2 identified the accused before the Magistrate.

13.So, as per the case of the prosecution, the identification parade was conducted. But there is no evidence on record to show that the Magistrate who conducted the identification parade was examined and the alleged report in respect of the identification parade was not produced before the Court. The prosecution unable to give any reason for the same.

14.At this juncture, the learned counsel for the appellants relied on the case in RAVINDRA Vs. STATE OF MAHARASHTRA reported in 1998 SCC (Cri) 1527. In that case it was pointed out that the object of the identification parade is to ascertain whether the persons whom the investigating agency suspect to have committed the offence were the real culprits and not by showing the suspects or their photographs. Such being the purpose of identification parades, the investigating agency, by showing the photographs of the suspects whom they intended to place in the TI parade, made it farcical and if the photographs of the accused was shown to the witnesses before the identification parade, the identification in TI parade became worthless.

15.The learned counsel also relied on the case in MOHD.ABDUL HAFEEZ Vs. STATE OF A.P. Reported in AIR 1983 SC 367, wherein it was pointed out that eventhough the victim of the offence did not know the accused persons, and it was on the basis of the identification in Court by the victim who failed to give any description of the accused in the F.I.R. four months after the incident, if the accused was identified and was convicted, the said conviction was not sustainable.

16.P.W. 1 admitted that she did not give the identity of the accused in the complaint. After the occurrence, the photos of the accused were published in the News Paper and the accused were shown to her on the next date of occurrence in the Contonment Police station. Evidence of P.W.2 would show that she knew the name of the accused through the Newspaper and Television. Further, P.W.2 admitted before the Doctor-P.W.3 that she was assaulted by unknown persons. So, it is clear that the eye witnesses are aware of the identity of the accused. P.W.6 also state that he along with P.W.7 saw the three accused at Edamalaipatti Pudur Police station on 18.4.2002 at about 7.00 p.m.

17.So, the evidence of P.Ws 1, 2 and 6 would show that the accused were shown to them before conducting the identification parade. Eventhough P.Ws 1 and 2 were not aware of the accused, they were shown to them before the identification parade and the accused were identified before the Judicial Magistrate. Further the Judicial Magistrate who conducted the identification parade was not examined and his report was not marked. Hence on analysing the case in the light of the Hon'ble Supreme Court decisions, I am of the view that the identification as claimed by the prosecution became worthless and it will not strengthen the case of the prosecution, since identification of the accused is not established in the manner known to law. Therefore, the evidence of P.Ws 1 and 2 will not be helpful for the prosecution.

17.So far as the recovery of weapons from the accused Nos.2 and 3 are concerned, the prosecution has relied on the evidence of P.Ws 5 to 7 to prove the recovery of weapons, however P.W.7 turned hostile.

18.Since the identity of the accused is not established, the alleged recovery in the presence of P.Ws 5 and 6 will not strengthen the case of the prosecution. On careful consideration of the evidence, I find that the prosecution has failed to prove that the accused committed the offence.

19.Therefore, the appeals are allowed and the order passed by the learned Additional District and Sessions Judge (Fast Track Court No.II), Tiruchirapalli is set aside.

rpa

To

1.Additional District and Sessions Judge

(Fast Track Court No.II), Tiruchirapalli.

2.The Inspector of Police,

Thuvarankurichi Police Station,

Thuvarankurichi.

3.The Public Prosecutor,

Madurai Bench of Madras High Court,

Madurai.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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