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Vetrivel v. State - CRIMINAL REVISION No.956 of 2005 [2007] RD-TN 2621 (7 August 2007)

IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 07.08.2007

CORAM:

THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN CRIMINAL REVISION No.956 of 2005

Vetrivel ..Petitioner/A4 in S.C.172/2003 on the file of Asst. Sessions Judge, Erode. Vs

The State

rep. by The Inspector of Police

Perundurai Police Station

Erode District. ..Respondent This revision is filed against the Judgment made in Crl.A.No.161 of 2004 dated 6.4.2005 on the file of the Principal Sessions Judge, Erode in confirming the order in S.C.No.172 of 2003 dated 25.3.2004 on the file of the Principal Assistant Sessions Judge, Erode For petitioner : Mr.D.J.Venkatesh

For respondent : Mr.V.R.Balasubramaniam, Additional Public Prosecutor O R D E R



This revision has been preferred by A4 in S.C.No.172 of 2003 on the file of the Principal Assistant Sessions Judge, Erode who had faced the charge under Section 394 r/w 397 of IPC along with the co- accused A1 to A3 and convicted and sentenced by the learned trial Judge to undergo seven years Rigorous imprisonment and a fine of Rs.500/- with default sentence along with the co-accused.

2. The short facts of the prosecution case relevant for the purpose of deciding this revision are that when P.W.1 a lorry driver of the lorry bearing Registration No.KA-01-C-9297 , while returning from Goa after unloading the goods on 5.5.2003, took the load of Hamam Soap from Goa to Coimbatore and when he was passing through Bhavani on 8.5.2003 at about 10.30p.m and on 9.5.2003 at about 4.30a.m., he had stopped the lorry on the left side of the road to attend to the call of nature, near Amudham Bread Company at Perundurai outskirts , two persons A3 and A4 caught hold of him and A2 attempted to stab P.W.1 when he warded of the same had sustained injuries on his right palm , A1 stabbed with knife on his left leg, right elbow and right side of the back and all the four accused caught hold of him and dragged him towards the lorry and A1 caught hold of P.W.2, the cleaner who was inside the lorry and A2 got into the lorry break opened the box kept above the driver's seat in the cabin and robbed Rs.20,000/- and all the accused ran away from the place of occurrence.

3. The learned Committal Magistrate/Judicial Magistrate, Perundurai, after taking the case on file, had furnished copies under Section 207 of Cr.P.C. on the appearance of the accused on summons and committed the case to the Court of Sessions under Section 209 of Cr.P.C. since the case is exclusively triable by the Court of Sessions. . On appearance before him the learned Sessions Judge had framed, the charges under Sections 394 r/w 397 of IPC, against the accused and when questioned, the accused pleaded not guilty.

4. On the side of the Prosecution , P.Ws 1 to 11 were examined. Exs P1 to P22 were exhibited and M.Os 1 to 16 were marked.

5. P.W.1 is the driver of the lorry bearing Registration No.KA-01-C-9297 who had preferred Ex P1 complaint. According to him, the occurrence took place on 9.5.2003 at about 3.00a.m., while he was driving the lorry, after loading the consignment ofHamam soap at Goa to be delivered at Bhavani,he stopped the lorry near a tea stall at Perundurai and after taking tea, he had started his journey and again stopped at the out skirt of Perundurai near Amudham backery at about 4.30a.m., to attend to the call of nature, leaving P.W.2 the cleaner of the lorry inside the lorry. While, he was attending to call of nature, two persons caught hold of him and with the help of the torch light in his hand, he would identify that A3 and A4 are the persons who had caught hold of him at the time of occurrence. While, he tried to escape, A2 made an attempt to stab him with a knife. When the attempt was resisted by him, he had sustained injury on the right palm. A1 had assaulted him with a knife on his left leg below the knee, right elbow and on his right back and other accused A3 and A4 also joined with A1 and A2 in dragging him on the ground towards the lorry. While A1 was holding P.W.2 at the point of knife , A2 entered into the lorry and took out a box in which he was keeping Rs.20000/- with a denomination of one bundle of 100 Rupee notes, one bundle of 50 rupee notes and six ,500 rupee notes, ten 100 rupee notes , twenty 50 rupee notes and Rs5 and Rs10 notes. After robbing the said amount of Rs.20,000/- from his possession, the accused ranaway from the place of occurrence. Thereafter, he informed the owner of the lorry about the incident over phone from Perundurai. As per his advise, he(P.W.1) had preferred a complaint Ex P1 with Perundurai Police at 7.00 a.m. on the same day. Ex P1 is the complaint. He was later referred to the Government Hospital, Perundurai where he handed over his blood stained lungi M.O.1 which was recovered under Ex P2 Form 95. Thereafter he had proceeded to Coimbator in the same lorry. On 25.5.2003, he had received a summon from the Perundurai Police Station requiring him to be present in the Central Prison, Coimbatore for an identification parade and in the identification parade, he had identified the accused before the Judicial Magistrate at the Central Prison, Coimbatore. ExP3 is the Trip Sheet for the lorry and M.O.2 and M.O.3 are the knives used by the accused at the time of occurrence. 5a. P.W.2 is the cleaner of the lorry who has also corroborated the evidence of P.W.1 to the effect that the occurrence took place on 9th May 2003 after 3.00 a.m. When P.W.1 stopped the lorry at the outskirt of Perundurai for the purpose of attending to the call of nature, four persons A1 to A4 caught hold of P.W.1 and at the point of knife A1 threatened him to hand over money, while A3 caught hold of him A2 got into the lorry and robbed Rs.20,000/- decamped with the same and in the said process, P.W.1 had sustained injury on the right palm and thereafter P.W.1 had preferred a complaint with Perundurai Police who have referred him to the Government Hospital, Perundurai for treatment. 5b.P.W.3 is another lorry driver who had seen the lorry driven by P.W.1 at the out skirt of Perundurai on the date of occurrence. On information about the occurrence, from the Lorry Association office on 9.5.2003, being a member of the said association, he went to the police station and saw the lorry bearing Registration No.KA-01-C-9297 stationed at the station. 5c. P.W.4 is the watchman in the Amudham Bread Company, Perundurai who had seen P.W.1 on 9.5.2003 at about 5.30 a.m with a bleeding injury on his right hand, who had informed him that four persons have robbed the amount kept by him in the lorry at about 4.30a.m., and requested to allow him to contact the owner of the lorry through the office phone. He had advised him to go to Perundurai and tried to contact the owner of the lorry through public phone, since the bread company phone cannot be used. 5d. P.W.5 is the lorry owner of Perundurai who was informed about the occurrence on 9.5.2003 at the lorry booking office in whose presence, perundurai Police have prepared Observation mahazar Ex P4 and also recovered M.O.4 torch light from the scene of occurrence under Ex P5 mahazar in his presence and another witness Murugasamy. 5e. P.W.11 is the then Inspector of Police, Perundurai Police Station. According to him, on 9.5.2003 at about 7.00 a.m., P.W.1 appeared in the police station and preferred Ex P1 complaint which was registered under Crime No.176 of 2003 under Section 394 of IPC. Ex P19 is the copy of the first information report. He immediately took up the investigation and proceeded to the place of occurrence and prepared Observation Mahazar ExP4 in the presence of P.W.5 and another witness Murugasamy. He had drawn a rough sketch Ex P20 and has recovered M.O.7 torch light from the place of occurrence in the presence of the same witnesses. He has examined the witnesses and recorded their statements. He had arrested the accused on 15.5.2003 at about 4.30 a.m., and has recorded the voluntary confession statement of the accused in the presence of witness Mathiazhagan P.W.7 and another witness Charles.. On the basis of Ex P9 admissible portion of the confession statement of A1 in the presence of P.W.7, he had recovered Rs.300/- M.O.5 series with a denomination of three 100 rupee notes under Ex P8 recovery mahazar. He has also recovered M.O.6 knife and M.O.7 torch light. He has confessed that out of the robbed amount, he had purchased yamaga motor cycle and kept it in his mother-in-law's house at Vedukathanpatti along with Rs.1000/- the balance of the amount robbed from P.W.1. He has also recorded the confession statement of A2 in the presence P.W.7 and one Charles, the assistant of P.W.7 and had recovered Rs 240/- M.O.8 from the shirt pocket of A2 with a denomination of two 100 rupee notes, one 20 rupee note and two 10rupee notes and a pen knife M.O.9 under Ex P10. 5f. P.W.11 has also recorded the confession statement of A3 and on the basis of the confession statement of A3, he had recovered Rs 260/- from the shirt pocket of A3, M.O.10 with a denomination of two 100 rupee notes, one 10 rupee note and one 50 rupee note and he has also recovered a suri knife M.O.11 under Ex P11 in the presence of P.W.7 and another witness Charles. P.W.11 has recorded the confession statement of A4 and recovered Rs.200/- from the shirt pocket of A4 with a denomination of two 100 rupee note M.O.12 series and a knife M.O.13 under Ex P12 mahazar in the presence of P.W.7 and another witness Charles. Thereafter on the basis of confession statement of A1, P.W.11 had proceeded to Vedukathanpatti to his mother-in-law's house and seized Yamaga motor cycle M.O.16 produced by the accused along with a blue colour bag containing Rs.1000/- with a denomination of ten 100 rupee notes, M.O.14 series, M.O.15 the blue colour bag under Ex P13 mahazar in the presence of P.W.7 and another witness Charles. 5g. P.W.8 is the owner of the lorry bearing Registration No.TN-31-C-2423 and another lorry bearing Registration No.TN-31-A-9023 at Cuddalore. According to him, the lorry bearing Registration No.KA-01-C-9297 belongs to his brother Bhaskaran which was driven by P.W.1 on 5.5.2003 from Pondicherry to Goa and after reaching Goa on 5.5.2003 and after unloading the goods at Goa ,P.W.1 had informed him that he had reached Goa and unloaded the goods and that he had instructed him to take the load to be transported to Coimbatore and that he left Goa on 8.5.2003 after loading the said goods and was proceeding to Bhavani via., Mettur the occurrence had occurred, and that the occurrence was informed to him over telephone by P.W.1 from Perundurai and that he had instructed P.W.1 to prefer a complaint with Perundurai Police and that he was informed about the arrest of the accused who had robbed the amount from P.W.1 and that he gave Ex P14 letter to the police to the effect that P.W.1 is working as a driver for the past six months and P.W.2 is working under him as cleaner for the past one month. 5h. P.W.9 is the doctor who had examined P.W.1 on 9.5.2003 at 10.15 a.m., at Government Hospital, Perundurai . She had noticed abrasion on the left leg below the knee and another simple injury on his right shoulder and another simple injury on his left fore arm and another lacerated injury between his left thumb and left index finger,a contusion on the left knee and that he had sutured the wound which was present between his left thumb and left index finger. Ex P15 is the wound certificate issued by her. 5i. P.W10 is the then Judicial Magistrate, Perundurai who had conducted the identification parade in this case on 29.5.2003 at about 3.00p.m., in the Central Prison at Coimbatore. According to her, P.W1 and P.W.2 have identified the accused in the identification parade held on 29.5.2003 at abaout 3.00p.m. She has spoken to in detail about the manner, she had conducted the identification parade Ex P18 is the report of the identification parade conducted by her. According to her, in the identification parade both P.W.1 and P.W.2 have identified the accused as the person who have robbed the amount on the date of occurrence at the point of knife. 5j.P.W.11 after completing the formalities had filed the charge sheet against the accused under Section 394 r/w 397 of IPC on 31.7.2003.

6. When incriminating circumstances under Section 313 Cr.P.C. were put to the accused, they would deny their complicity with the crime. The accused have not examined any witness on their side. The learned trial Judge,after going through the evidence both oral and documentary meticulously has come to a conclusion that the charge levelled against the accused under Section 394 r/w 397 of IPC has been proved beyond any reasonable doubt and accordingly convicted and sentenced the accused 1 to 4 to under go seven years rigorous imprisonment each and slapped with a fine of Rs.500/- each with default sentence. Aggrieved by the findings of the learned trial Judge, A1 has preferred an appeal in Crl.A.No.213 of 2004 and A4 has preferred an appeal in Crl.A.No.161 of 2004 on the file of the Principal Sessions Judge, Erode. The learned Sessions Judge, after giving due deliberations to the submission made by the learned counsel for the appellant and the Public Prosecutor for the State, has held that there is no materials on record to interfere with the findings of the learned trial Judge and accordingly confirmed the Judgment of the learned trial Judge in S.C.No.172 of 2003 on the file of the Principal Assistant Sessions Judge, Erode thereby dismissing the appeal preferred by A1 and A4 which necessitated A4 to prefer this revision before this Court.

7. Now the point for determination in this revision is whether the findings of the learned trial Judge confirmed by the learned first appellate Judge in Crl.A.No.161 of 2004 on the file of the Principal Sessions Judge, Erode is liable to be set aside for the reasons stated in the memorandum of revision?

8. Heard Mr. D.J.Venkatesh,learned counsel appearing for the revision petitioner and Mr.V.R.Balasubramaniam, learned Additional Public Prosecutor for the State and considered their respective submissions.

9. The Point: P.W.1 and P.W.2 are the ocular witnesses to the crime. According to the prosecution on the date of the occurrence, when P.W.1 had parked the lorry bearing Registration No.KA-01-C-9297 at the outskirt of Perundurai to attend to the call of nature on 9.5.2003 at about 4.30a.m., A1 and A2 along with A3 and A4 caught hold of him and A1 had assaulted him with a knife on his left leg , left heel , right elbow and right back causing simple injuries and A2 had assaulted him with a knife on his right palm causing simple injury and that A1 to A4 dragged him on the ground to the lorry and A2 got into the lorry and robbed Rs.20,000/- which was kept in a box and at that time A1 was holding knife against P.W.2 and after committing the robbery, the accused ran away from the place of occurrence. P.W.2 has also corroborated the evidence of P.W.1 to the effect that while he was waiting in the lorry at the time of the occurrence, A1 to A4 dragged P.W.1 for about 100 feet and while A3 and A4 holding P.W.1, A1 was showing a knife at him and A2 had committed the theft of Rs.20000/- from the box in the cabin of the lorry.

10. P.W.9, the doctor who had treated P.W.1 for the injury he had sustained in the occurrence on 9.5.2003 at about 10.15 a.m., in the Government Hospital , Perundurai had issued Ex P15 wound certificate. The prosecution has also produced the copy of the accident register issued by P.W.9 along with Ex P15. The injuries sustained by P.W.1 at the time of the occurrence has been corroborated by the Medical evidence of P.W.9.

11. The learned counsel for the revision petitioner would contend that even according to P.W.1, the occurrence had taken place at the early hours of 9.5.2003(at about 4.30a.m.,) and that there is no possibility for P.W.1 to identify the accused at the place of occurrence since it was pitch dark. But it is in evidence that P.W.1 had carried along with him a torch light which was also recovered under the recovery mahazar in the presence of P.W.6 under Ex P6. M.O.7 is the torch light recovered from the place of occurrence under Ex P6 in the presence of P.W.6 by P.W.11, the investigating Officer. Apart from this, there was an identification parade conducted by P.W.10 the judicial Magistrate at Central Prison, Coimbatore after the arrest of the accused on 29,.5.2003 at 3.00p.m., on the basis of the requisition made by the Investigating Officer under Ex P17. The learned Judicial magistrate P.W.10 has meticulously followed the procedures and conducted the identification parade and has submitted Ex P18 identification parade report. The only objection raised by the accused before the Judicial Magistrate is that they have already been identified by the police to P.W.1 and P.W.2 after their arrest. Before the Judicial Magistrate, P.W.10 after the identification parade was over, A1 Selvam, in his written submissions has stated that both P.W.1 and P.W.2 have provided meals to them while they were detained in the police station, Perundurai, after arrest. But no other accused has stated that both P.W.1 and P.W.2 have supplied food to the accused at the police station after arrest. Except the ipse dixit of A1, there is absolutely no evidence to strengthen the above said statement of A1 to the effect that both P.W.1 and P.W.2 have already been identified by the police to the accused. Apart from identifying the accused before the Judicial Magistrate P.W.10 in the identification parade in the Central Prison, Coimbatore on 29.5.2003 at 3.00p.m., both P.W.1 and P.W.2 have also identified the accused at the time of trial before the learned trial Judge. The Investigating Officer after the arrest of the accused has recorded the voluntary confession statement of the accused and on the basis of voluntary confessions statement of A1 to A4 has recovered Rs.300/- M.O.5 series, M.O.6 knife, and another torch light M.O.7 from A1 in the presence of P.W7 and also recovered M.O.16 yamaga motor cycle and M.O.14 Rs 1000/- from a blue colour bag M.O.15 being the balance of the amount robbed from P.W.1 on the date of the occurrence.

12. Even in the confession statement, A1 has confessed the fact that out of the amount robbed from P.W.1, he had purchased M.O.16 yamaga motor cycle for Rs.12,500/- and kept in his mother-in-law's house at Vedukattanpatti which was also recovered under Ex P13 mahazar by the Investigating Officer P.W.11 in the presence of P.W.7. On the basis of the confession statement of A2, M.O.8, Rs 240/- and M.O.9 a pen knife were recovered under Ex P10 mahazar in the presence of P.W.7. On the basis of the confession statement of A3, M.O.10 Rs 260/- and M.O.11 knife were recovered in the presence of P.W.7 by P.W.11 under Ex P11 mahazar. As far as this revision petitioner/A4 is concerned, on the basis of his confession statement, P.W.11 has recovered M.O.12 series two 100 rupee notes and M.O.13 a knife under Ex P12 mahazar in the presence of P.W.7. But the confession statement recorded from A4 revision petitioner herein is not separately marked. The overtact attributed by A4 is that he caught hold of P.W.1 at the time of occurrence to facilitate A1 and A2 to assault P.W.1 with knives and committed an offence of robbery.

13. At this juncture, the learned counsel appearing for the revision petitioner would represent that for the past four years, the revision petitioner is in jail. The learned Additional Public Prosecutor would fairly concede that the accused is liable to be convicted only under Section 394 of IPC and not under Section 394 r/w 397 of IPC, since there is no evidence on record to show that the overtact attributed against him except the fact that he had caught hold of P.W.1 at the time when A1 and A2 at the point of knife have caused injury to P.W.1 at the time of committing the offence of robbery of Rs.20,000/- from the possession of P.W.1. Hence, I am of the view that the revision petitioner/A4 is liable to be convicted and sentence only under Section 394 of IPC instead of under Section 394 r/w 397 of IPC.Point is answered accordingly.

14. In fine, the revision is allowed in part and the findings of the learned first appellate Judge in Crl.A.No.161 of 2004 is set aside and the 4th accused/revision petitioner is convicted under Section 394 of IPC and sentenced to undergo four years rigorous imprisoment and a fine of Rs.500/-in default to under go three months simple imprisonment. Set off is ordered under Section 428 of Cr.P.C. The fine amount already paid under Section 394 r/w 397 of IPC before the trial Court shall be converted as fine imposed under Section 394 of IPC. sg

To

1. The Principal Assistant Sessions Judge, Erode.

2. The Principal Sessions Judge,

Erode.

3. The Public Prosecutor,

High Court,

Madras.

4. The Inspector of Police,

Perundurai Police Station,

Erode District.

5. The Superintendent,

Central Prison,

Coimbatore.


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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