Dharman @ Dharmaraj vs State

R. Mala, J.—The Crl.R.C. is filed against the judgment dated 12.10.2007 in Crl.A. No. 54 of 2007 on the file of the Additional Sessions

Court, Fast Track Court No. 5, Chennai, confirming the judgment dated 29.1.2007 in C.C. No. 3354 of 2006 on the file of IX Metropolitan

Magistrate, Saidapet, Chennai, whereby the revision Petitioner/A1, and A2 were convicted for the offence u/s 394 read with 34 IPC and

sentenced to undergo one year rigorous imprisonment and to pay fine of Rs. 500/-, in default, to undergo one month simple imprisonment. A-3

was acquitted of the charge.

The skeleton of the prosecution case is as follows:

On 18.1.2006 at about 10 p.m., when P.W.1 was waiting near Madhya Kailash to board vehicle to go to his night shift work, the revision

Petitioner/A1 asked time and P.W.1 mentioned the time and subsequently, when he again asked time, the accused made quarrel with P.W.1 and

abused him in filthy language and there was scuffling between P.W.1 and the accused. At that time, A1 to A-3 snatched the cell phone and wrist

watch and caused injury to P.W.1. Immediately, P.W.1 was admitted in Malar Hospital and subsequently he gave complaint, which was received

by P.W.3 who registered a case in Crime No. 37 of 2006 u/s 394 read with 34 IPC and A1 and A2 were arrested. A1 and A2 have given

confession, which was recorded in the presence of P.W.2 Balu and on the basis of the confession, he seized M. Os.1 and 2 under the seizure

mahazar. He concluded the investigation and filed charge sheet against the accused for the offence u/s 394 read with 34 IPC.

The trial Court, on the basis of the oral evidence of P. Ws.1 to 3 and the documentary evidence of Exs.P-1 to P-5 and M. Os.1 and 2,

convicted and sentenced the revision Petitioner/A1, and A2 as stated above and acquitted A3, against which, the revision Petitioner/A1 and A2

preferred appeal and the first appellate Court confirmed the conviction and sentence passed by the trial Court, against which, the present Crl.R.C.

is preferred by A1.

Challenging the conviction and sentence, learned Counsel appearing for the revision Petitioner/A1 submitted that there is discrepancy in respect

of the registration of the FIR. P.W.1 who is the complainant has given one version and P.W.3, the person who registered the case, has given

another version. Admittedly, as per the evidence of P.W.1, A1 to A3 were not known to P.W.1 previously and no identification parade was

conducted. P.W.2 who is alleged to be the attestor of the confession, has turned hostile and the other attestor has not been examined. The

recovery u/s 27 of the Indian Evidence Act, has not been proved as per law. He further submitted that the identification of the material objects, has

not been made. These facts have not been considered by both the Courts below and hence, the conviction and sentence suffers from irregularity

and illegality and he prayed for acquittal of the revision Petitioner/A1.

Repudiating the said contentions, learned Government Advocates (Criminal Side) submitted that P.W.1 has stated that he has given complaint

and P.W.3 registered the case and P.W.1''s evidence is corroborated by the evidence of P.W.3 and that factum has been clearly discussed by

both the Courts below and there is no discrepancy in respect of the registration of the case. He further submitted that at the time of trial, P.W.1

identified A1 and A2 and so, there is no need to conduct identification parade. He fairly conceded that P.W.2 turned hostile, but however, P.W.3

investigating officer has proved the confession as well as recovery and hence, both the Courts below have considered this aspect in proper

perspective and came to the correct conclusion. Hence, the conviction and sentence passed against the revision Petitioner/A1 do not warrant any

interference and he prayed for dismissal of the Crl.R.C.

Considering the rival submissions and the materials available on record, this Court has to consider the evidence of P. Ws.1 to 3. P.W.1 is the

victim and P.W.2 who is the attestor to the confession, has turned hostile. P.W.3 is the investigating officer. Now, this Court has to decide as to

whether the evidence of P.W.1 is reliable. While considering the evidence of P.W.1, there is contradiction in his evidence both in chief examination

and cross-examination. P.W.1 in his chief examination, stated that A1 and A2 and another person who was not before Court, committed the

offence. But, in cross-examination by the counsel for A-3, he stated that he did not see A3 on the date of occurrence. Admittedly, on the date of

examination of the witness P.W.1, A3 was not present before Court. In such circumstances, I do not find any reason as to how P.W.1 has stated

about the person who was not before Court, by stating that he has seen him at the time of occurrence. Hence, I am of the view that the evidence of

P.W.1 is not trustworthy.

Furthermore, in chief examination, he has stated that immediately, he was admitted in Malar Hospital, where the Police has examined him and

they recorded the complaint Ex.P-1. In cross-examination, he has stated that he has written the complaint only at Malar Hospital and was treated

as an out-patient and does not know the name of the Doctor who treated him. In his cross-examination, he has specifically mentioned that he has

not visited the Police Station and so, his evidence is not trustworthy and hence, not reliable.

P.W.3 in his evidence, stated that P.W.1 appeared before him on 19.1.2006 and gave the complaint, which was received and the case was

registered. So, there is major discrepancy with regard to the recording of complaint. The trial Court and the first appellate Court have given

reasonings for accepting the same. Considering these facts along with the evidence of P. Ws.1 and 3, I am of the view that the evidence of P.W.1

is not trustworthy and it is not reliable. In his evidence, he has fairly conceded that he has not identified the material objects and he has not given

identification mark of the wrist watch and cell phone.

At this juncture, it is appropriate to consider the ingredients of Section 394 IPC, which reads as follows:

Section 394 IPC: Voluntarily causing hurt in committing robbery: If any person, in committing or in attempting to commit robbery, voluntarily

causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with

imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

It is rightly pointed out by learned Counsel appearing for the revision Petitioner/A1 that no Doctor has been examined and no accident register

has been marked to show that P.W.1 sustained injury. In such circumstances, one of the ingredients of Section 394 IPC, has not been proved by

the prosecution beyond reasonable doubt, which was not considered by both the Courts below.

It is also pertinent to note that P.W.1 has not given any identification mark for his wrist watch and cell phone. Furthermore, it is appropriate on

the part of this Court to consider the evidence of P.W.2 who is one of the attestors to the confession, who turned hostile. The other attestor has

not been examined before Court. The admitted portion of the confession of A-1 is marked as Ex.P-4 through the investigating officer. But the

seizure mahazar has also not been marked before the Court below. In such circumstances, both the Courts below have not considered the

recovery u/s 27 of the Indian Evidence Act in proper perspective.

As per Section 27 of the Indian Evidence Act, the recovery has to be proved by concrete evidence and not by the investigating officer. In this

case, it is pertinent to note that the recovery of M. Os.1 and 2 have not been proved and also the seizure mahazar not marked. Both the Courts

below have not considered this aspect in proper perspective.

For these reasons, the revision Petitioner/A1 is entitled to be given the benefit of doubt and hence, I am of the view that the prosecution has

not proved the guilt of the revision Petitioner/accused u/s 394 read with 34 IPC, beyond all reasonable doubt. Giving the benefit of doubt to the

revision Petitioner/A1, he is acquitted of the charge levelled against him.

For the above reasons:

(a) The Crl.R.C. is allowed.

(b) The conviction and sentence passed by both the Courts below against the revisions Petitioner/A1, are set aside. He is acquitted of the charge.

(c) The bail bond, if any executed by him, shall stand cancelled.

(d) The fine amount, if paid by the revision Petitioner/A1 shall be refunded.

(e) The Miscellaneous Petition is closed.