1. Rajadurai Raja @ Jaya @ Jayaraj, 2. Manickam @ Pushparaj vs State

N. Dinakar, J.—The Appellants, two in number, who hereinafter will be referred to as the first Accused (A1) and the second accused (A2) respectively for the sake of convenience, challenge their conviction and sentence. They were tried before the learned sessions judge, Ootacamund, in S.C. No. 30 of 1995 on the charges framed under Sections 392, 394 and 392 r/w 397 IPC. The learned sessions judge, on the evidence adduced, convicted each of the accused to suffer imprisonment for seven years under each charge with a direction that the sentences will run concurrently. Hence, the present appeal.

The facts necessary to dispose of the appeal can be briefly summarized as follows:

P.W. 1 is a driver by profession and he was driving a taxi bearing Regn. No. TN-N-6699, of which P.W. 1 is the owner. It was an Ambassador car. On 7.11.1991 at about 9.15 p.m., when he was at Charring cross in Ooty, with his taxi two persons approached him whether he will take his taxi to fetch a woman who about to deliver a child P.W. 1 agreed and fixed Rs. 300/- as hiring charges. One of them, who approached P.W. 1, was found to be short and he was also dark in complexion. Both of them were speaking in Ceylonese Tamil. They boarded the taxi, and while P.W. 1 was driving, they asked him to Stop the vehicle at Mootinadu junction near a statue. They informed P.W. 1 That they will collect money from their house and returned after some time. They, thereafter, showed a knife threatening P.W. 1 that how dare he could demand hiring charges. One of the persons stabbed P.W. 1 on the stomach as well as on the right cheek. They also inflicted a stab injury on the forehead P.W. 1 fell down. Thereinafter, the taxi was taken by both of them and they returned after some time. They requested P.W. 1 to come along with them to the hospital for taking treatment P.W. 1, apprehending danger to his life, did not accompany them. Then, both the persons left with the taxi. P.W. 1 went to the tea - stall of P.W. 3 and informed him as to what transpired P.W. 1 was asked to lie down and on the next day morning he was taken to the hospital by P. Ws. 4and 6 and produced before P.W. 13, the doctor, who, on examining him found the following injuries:

Lacerated wound on the abdomen 3 1/2" x 1/2" x 1/2" above the umbilicus Intestine protruding the thigh.

Lacerated wound left side chest 1/2" x 1/4"

Lacerated wound right forearm 1/2" x 1/4"

Curved lacerated wound 2" x 1/2" left side forehead

Lacerated wound left eyebrow 1/2" x 1/4

Lacerated wound 1" x 1/4" over the back of the left thigh.

Lacerated wound 1" x 1/4" over the inner aspect of left thigh.

P.W. 13 issued Ex. P-11 the wound certificate, for the injuries found on P.W. 1.

In the mean time, on receipt of an information over phone, P.W. 12, the sub inspector of police of Kolakombai police station, went to the hospital and found P.W. 1. He questioned P.W. 1 who gave a complaint, Ex. P-1. P.W. 12 returned to the police station and on the basis of the said complaint, registered a case in Crime No. 138 of 1991 u/s 397 IPC. Ex. P. 10 is the copy of the printed First Information Report. Express reports were sent to the higher Officials. Investigation was taken up P.W. 14'' the Circle Inspector of police of Coonoor circle.

P.W. 14 after taking up the investigation went to the scene of occurrence and prepared an observation mahazar, Ex.P-5. He questioned the witnesses and recorded their statements. He drew a rough sketch, Ex.P. 12. He left the scene of occurrence and went to the hospital, where he questioned P.W. 1 and recorded a statement from him. On 9.11.1991, he received an information that the vehicle in question is found at Perundurai P.W. 14, accompanied by his sub-ordinate officers, went to Perundurai and at Olapalayam, found the vehicle abandoned. He seized the vehicle under a mahazar Ex. P.6, which was attested by P.W. 7. A finger print expert was summoned and he could not find any finger print on the vehicle. The vehicle was brought and was later identified by P.W. 9 as his vehicle. Further investigation was taken up by his successor-in -office, P.W. 15.

P.W. 15, on taking up the investigation, verified the investigation conducted by P.W. 14. on 6.1.1992, on an information that A1 is threatening the public at a bazaar, went there and found him threatening the public with a knife. He was arrested and brought to the police station. When questioned, he gave a statement. A1 was, thereafter, sent to the Court for remand. P.W. 15 issued a requisition, Ex-P-2, to the learned Chief Judicial Magistrate for conducting test identification parade in respect of A1.

P.W. 2, Judicial Magistrate No. 6, Coimbatore, on receipt of the requisition, directed the jail authorities to produce A1 before him. Accordingly, on 22.2.1993, A1 was produced. A test identification parade was conducted, at which A1 was identified by P.W. 1. as person, who took the vehicle in question on the date of incident. A1 made a complaint to the judicial officer that while he was in custody on 5.12.1992, he was pointed out to the witness by the police officers. The test identification in respect of A2 was also conducted by P.W. 10 Judicial Magistrate, ooty, on 5.2.1993 at 2.00 p.m. He was also identified by the witnesses.

After completing the identification the final report filed by P.W. 15 against the accused.

When questioned u/s 313 Code of Criminal Procedure on the incriminating circumstances appearing against them, the accused denied their complicity in the crime and they did not examine any witness on their side.

The case of the prosecution that the car was stolen is proved through the evidence of P.W. 1. P.W. 1 was the owner and driver of the vehicle during the relevant period. According to him, when he was waiting for passengers, parking his vehicle at Charring cross, two persons approached him and took the vehicle for them after fixing the hiring charges at Rs. 300/-. It is his evidence that when the vehicle reached a junction, he was asked to stop the vehicle and later, one of them caused injuries on his persons. He further deposed that the vehicle was taken away by those two persons. P.W. 1 has further stated that after the incident, he went to the tea -stall of P.W. 3 and informed him about the incident and P.W. 3 advised P.W. 1 to take rest. His evidence is supported by P.W. 3. P.W. 3 has stated in his evidence that P.W. 1 came to the tea-stall at about 2.00 a.m. on 8.11.1991 and that he found injuries on the person of P.W. 1. P.W. 1 narrated the incident to P.W. 3 and thereafter he was advised to take rest.

The vehicle was later seized by P.W. 14, the circle inspector of police of Coonoor circle. According to P.W. 14 an information was received that the vehicle is lying abandoned at Perundurai. He went there and seized the vehicle under a mahazar Ex. P.6, which was later identified by P.W. 1 as his vehicle. The loss and the subsequent recovery prove that the vehicle was taken away from the custody of P.W. 1 after he was assaulted with a knife and later, recovered by the police officer. I, therefore, hold that there was a robbery and the vehicle was taken from the custody of P.W. 1. I accept his evidence on this aspect.

Even at the outset, I may say that both the accused/Appellant are entitled for an acquittal. It is the case of the prosecution that the occurrence took place on the night of 7.11.1991 and that P.W. 1 was produced before the doctor, P.W. 13 for treatment. According to P.W. 13, he examined P.W. 1 Nagarajan at 10.35 a.m. on 8.4.1991. If the occurrence had taken place on 7.11.1991 it escapes one''s comprehension as to how P.W. 1 could have been examined for injuries much earlier to the date of incident, i.e. on 8.4.1991. If P.W. 1 was examined on 8.4.1991 for injuries found on his person and P.W. 13 issued the wound certificate Ex.P-11 then P.W. 1 must have suffered such injuries prior to 8.4.1991 and the injuries noted by the doctor on 8.4.1991 could not have been the injuries inflicted by the accused on 7.11.1991. The evidence of the doctor and the wound certificate, Ex.P-11, cut the prosecution version that P.W. 1 suffered injuries on the night of 7.11.1991, for which, he was treated by the doctor on 8.4.1991.

This Court is also not able to place much reliance upon the test identification parade. It is the evidence of P.W. 15 that he arrested A1 on threatening the public at a bazaar though A1 was allegedly arrested on 6.12.1992, a requisition, Ex.P-2 for conducting test identification parade, was actually given by P.W. 15 only on 27.11.1993. It is not known as to why the officer had taken so much time to issue the requisition. If, on questioning A1 at the police station, P.W. 15 came to know of his complicity in the crime, then he would have immediately sent the requisition to the Magistrate for conducting test identification parade to enable P.W. 1 to identify A1. The delay in issuing the requisition also creates a suspicion in the mind of the Court. The delay coupled with the complaint made by A1 that while he was in the police station as well as in the hospital, he was shown to the witness, assumes importance. Further, it is also doubtful whether P.W. 1 could have identified A1 on 24.2.1993 when the occurrence had taken place on 7.11.1991, i.e. after 15 months. Therefore, I do not place much reliance upon the evidence of P.W. 1 that he identified A1 at the test identification parade to come to the conclusion that A1 committed the offence.

Similarly, the test identification parade in respect of A2 conducted by P.W. 10 is not useful to the prosecution in view of the evidence of P.W. 15. P.W. 15, when cross-examined, stated that he did not know by whom, A2 was arrested. P.W. 15 has stated that he come to know the arrest of A2 only on 1.2.1993. He has not stated anything about the person, who gave the information about the arrest of A2. If A2 was arrested, he must have been arrested much earlier to 1.2.1993 and in this case, the prosecution must have examined the concerned witness to say the date and time of A2''s arrest. In the absence of any evidence as to when A2 was arrested, the belated requisition given to the Judicial Officer to conduct test identification parade in respect of A2 is not of any use to the prosecution. This only creates a suspicion in the mind of the Court that all is not well with the prosecution. Therefore, the accused are entitled for a benefit of doubt and the same is accordingly given to them.

In the result, the appeal is allowed and the Appellants/accused are acquitted of all charges framed against them. It is reported that the Appellants/accused are in jail. Hence, they are directed to be released unless they are wanted in connection with any other case.