K. Maduraiveeran and Others vs State

M. Sathyanarayanan, J.—The accused 1 to 4 were charged for the commission of offence under Section 394 r/w 397 of the Indian Penal Code and the fifth accused was charged for the commission of offence under Section 411 of the Indian Penal Code. The Trial Court, vide Judgment, dated 06.11.2007, has convicted the Accused Nos. 1 to 3 for the commission of the above said offences and acquitted the fourth and fifth accused. The accused 1 to 3 were imposed with a sentence of seven years rigorous imprisonment with a fine of Rs. 5,000/- each, with a default sentence of six months rigorous imprisonment.

The Accused Nos. 1 to 3, aggrieved by the conviction and sentence recorded by the Trial Court, preferred appeals in C.A. Nos. 54 of 2008, 233 and 251 of 2007, respectively, on the file of the Court of Principal Sessions Judge, Virudhunagar District at Srivilliputhur. The Lower Appellate Court, vide impugned Common Judgment dated 30.08.2011, has dismissed all the Criminal Appeals and thereby confirmed the conviction and sentence recorded by the Trial Court. Aggrieved by the same, Accused No. 2 has filed Crl.R.C.(MD)No.346 of 2012 and Accused No. 3 has filed Crl.R.C.(MD)No.845 of 2011 before this Court. It is not made known to this Court as to whether the Accused No. 1 has filed any revision, challenging the conviction and sentence passed by the Lower Appellate Court.

Since these Criminal Revision Cases arise out of the very same Sessions case in S.C. No. 3 of 2006, on the file of the Assistant Sessions Judge, Aruppukottai and that both these petitioners were jointly tried and convicted, these Criminal Revision cases are disposed of by means of this Common Order.

The facts necessary for the disposal of these Criminal Revision Revisions, briefly stated, are as follows:

"PW-1 was a Sub-Inspector of Police, attached to Armed Police, Madurai District. On 08.03.2005, at about 09.45 p.m., he was proceeding in his Hero Honda Motorcycle, bearing Registration No. TN-59-K-0731, with his wife, viz., Dhanalakshmi (PW-2) as a pillion rider. When the vehicle was passing through Chettiar Oorani Diversion Road, the first accused emerged from the western side of the road and assaulted PW-1 - Balasubramanian with MO-8 - Stick and since PW-1 was riding the motorcycle, he had fallen down and consequently his wife - PW-2/Pillion rider also fallen down. These petitioners/A-2 and A-3 along with A-4 joined with A-1 and further assaulted PW-1 and PW-2 with sticks. Accused No. 4 tried to inflict an injury with a knife on PW-1 and on seeing that, his wife PW-2 got panic and handed over 9 sovereigns of gold chain with Thali, 7 sovereigns of dollar chain and 11/2 sovereigns of Gold Bangle. The third accused removed and snatched away the Gold Chain weighing about 4 sovereigns from PW-1 and also removed a Gold Ring, worn by him and his wrist watch. At that time, a bus was coming and PW-1 was able to see the persons, who committed assault and dacoity." 4.1. PW-1 and PW-2, after the occurrence, boarded a Government bus, which came and went to the Aruppukottai Police Station and lodged a complaint, under EX-P1. P.W-10 was the Sub-Inspector of Police, at the relevant point of time. On receipt of EX.P1-Complaint, given by PW-1, he has registered a case in Crime No. 128 of 2005 for the commission of offence under Sections 395 and 397 of the Indian Penal Code. The printed First Information Report was marked as EX-P9. P.W.10 forwarded the original complaint as well as the First Information Report to the Jurisdictional Magistrate and forwarded a copy of the same to the Inspector of Police for the purpose of commencing investigation and he has also sent PW-1 and PW-2 for treatment to the Government Hospital at Aruppukottai. PW-9 was the Assistant Surgeon, attached to the Government Hospital, Aruppukottai and he has treated PW-1, who informed him that he was attacked by four or five persons with sticks. PW-9 noted that PW-1 suffered two injuries and Injury No. 1 is grievous in nature and he has admitted him as in-patient and PW-1 took treatment from 09.03.2005 to 11.03.2005 and thereafter, he was discharged. The Accident Register pertaining to PW-1 was marked as EX-P8. PW-9 also treated PW-2, who informed him that she was attacked by four or five persons with sticks. He also treated her and the Accident Register of PW-2 was marked as EX-P7. PW-9 also stated that the injuries are simple in nature. PW-7 was the physiotherapist and he treated PW-1 and he has also issued Discharge Summary, marked as EX-P4 stating that PW-1 has suffered grievous injuries.

4.2. PW-11 was the Inspector of Police attached to Aruppukottai Police Station and on receipt of a copy of First Information Report, he proceeded to the scene of occurrence at 03.00 A.M, on 08/09.03.2005 in the presence of PW-5 and prepared Observation Mahazar, marked as EX-P2 and Rough Sketch, marked as EX-P10 and also recovered a pair of leather chappals, marked as MO-6 and Rubber Slipper, marked as MO-7, under the cover of Mahazar, marked as EX-P3 and it was also signed by PW-5 and another witness. On 31.03.2005, on information, he effected arrest of the Accused 1 to 3 in the presence of PW-6 and another. The first accused voluntarily came forward to give a confessional statement and as per the admissible portion of the confessional statement, marked as EX-P12, a stone-studded ring was recovered (MO-5), under the cover of Mahazar. In pursuant to the admissible portion of the confessional statement, A-1 took him to the shop of A-5, wherein they recovered MO-1 to MO-,4 under the cover of Mahazar-EX.P13.

4.3. PW-11 also took steps to conduct Test Identification Parade and made a requisition and PW-8, the Judicial Magistrate No. 1, Virudhunagar, was nominated to conduct Test Identification Parade and he conducted Test Identification Parade at about 03.00 P.M, on 21.04.2005, wherein PW-1 and PW-2 participated and PW-1 has identified all the three accused, whereas PW-2 identified Accused No. 1 alone. The proceedings relating to Test Identification Parade is marked as EX-P6.

4.4. PW-12 continued the investigation and having found that Accused No. 4 had surrendered before the Court of Fast Track Court at Madurai, filed necessary application for police custody. He has also examined PW-7 and PW-9 and recorded their statements and after completion of investigation, he has filed the charge sheet against the accused Nos. 1 to 4 for the commission of offences under Sections 394 and 397 IPC and as against Accused No. 5, charged him for the commission of offence punishable under Section 411 IPC, on the file of the Court of Judicial Magistrate, Aruppukottai. The committal Court, on appearance of the accused, has furnished them with copies of documents under Section 207 of the Code of Criminal Procedure and having found that the case is exclusively triable by the Sessions Court, committed the case to the learned Assistant Sessions Judge, Aruppukottai, who had framed charges under Section 394 r/w 397 IPC against Accused Nos. 1 to 4 and under Section 411 IPC against the fifth accused.

4.5. The prosecution, in order to sustain their case, has examined PW-1 to PW-12 and marked EX-P1 to EX-P13 and MO-1 to MO-9. All the accused were questioned under Section 313 of the Code of Criminal Procedure in respect of the incriminating materials available against them and all the accused pleaded not guilty of the charges framed against them. On behalf of the accused, no oral evidence was let in and no document was marked.

The Trial Court, on a consideration of the oral and documentary evidences, has convicted and sentenced the Accused Nos. 1 to 3, as stated above and acquitted the accused Nos. 4 and 5 and the Criminal Appeals preferred by the accused Nos. 1 to 3 were also dismissed.

Aggrieved by the same, the accused Nos. 2 and 3 have filed these Criminal Revision Cases.

Mr. B. Jameel Arasu, learned counsel for the petitioners made the following submissions:

"(i). Admittedly, the occurrence took place at about 09.45 PM, on 08.03.2005, which is just two days after Mahasivarathiri and it would not have been possible for PW-1 and PW-2 to see the physical features of the accused and that the accused were not known to PW-1 and PW-2. He has also stated that the version of PW-1 and PW-2 that they saw the accused through the light emanated from the headlamp of the bus, cannot be believed and even for the sake of arguments that they have seen Accused Nos. 1 to 3, through the aid of the light emanated from the headlamp of the bus, in EX-P1, complaint, in the end portion, a word has been inserted as if PW-1 is able to identify the persons, who had committed the offence.

(ii). The Test Identification Parade was conducted nearly after lapse of 22 days of the arrest of the accused and prior to the conduct of Test Identification Parade, all the accused were shown to PW-1 and PW-2 and hence, they have identified the accused.

(iii). Recovery of MO-5 was effected in pursuant to the admissible portion of the confessional statement of Accused No. 1 alone and MO-1 to MO-4 were alleged to have been recovered from the shop of Accused No. 5, the receiver of the stolen property and he was acquitted, and admittedly nothing has been recovered from these petitioners/A-2 and A-3 and hence, their conviction and imposition of sentence were wholly improper.

(iv). Alternatively, it is submitted by the learned counsel for the petitioners that since A-4 and A-5 were acquitted, these petitioners cannot be convicted for the commission of offence under Section 397 IPC and would contend that in the light of the above said infirmities in the case projected by the prosecution, the Trial Court, in any event, ought to have given the benefit of doubt for the accused 2 and 3 and hence, prays for interference."

Per contra, Mr. C. Ramesh, learned Additional Public Prosecutor, would contend that no doubt, the offence took place at about 09.45 PM, on 08.03.2005. However, immediately after the occurrence, a Passenger Bus passed and through the light emanated out of the headlamp, both PW-1 and PW-2 had seen the accused and Test Identification Parade was conducted at about 03.00 PM, on 21.04.2005, wherein PW-1 and PW-2 participated and PW-1 has identified all the three accused, whereas PW-2 identified the first Accused. In pursuant to the confession of the first accused, MO-5 was recovered and on his confession, the other MO-1 to MO-4 were also recovered from the shop of the fifth accused under Mahazar EX-P13 and thus, the prosecution has established its case beyond any reasonable doubt and the Trial Court, on a proper appreciation of oral and documentary evidences, has rightly awarded conviction and sentence and on appeal, it was upheld by the Lower Appellate Court and unless the findings are perverse or based upon no evidence, this Court may not interfere with the same and hence, prays for dismissal of the Criminal Revision Cases.

This Court has carefully considered the rival submissions and perused the typed set of documents.

Immediately, after the occurrence, PW-1 and PW-2 boarded a Government Bus, which came on that way and went to Aruppukottai Police Station and lodged a complaint, EX-P1, which was registered by PW-10, the Sub-Inspector of Police, attached to the Aruppukotttai Police Station. Even in the complaint, he has spoken to about the light emanated from the vehicle. It is also pertinent to note, at this juncture that PW-1, being a police personnel, is also trained to deal with the persons committing offences and therefore, the contentions put forth by the learned counsel for the petitioners that PW-1 and PW-2 saw the accused through the light emanated out of the headlamp was an afterthought, in the considered opinion of this Court, are liable to be rejected. The First Information Report has also reached the Jurisdictional Court, without any loss of time.

As per EX-P4 and EX-P8, discharge summary, PW-1 and PW-2 suffered grievous injuries. The watch worn by PW-1 marked as MO-9 was also recovered from the scene of crime and all the accused were arrested on 31.03.2005 and Test Identification Parade was held at about 03.00 PM, on 21.04.2005. The testimony of PW-8, the learned Judicial Magistrate No. I, Virudhuangar, would also disclose that all the procedural formalities have been scrupulously followed and on 21.04.2005, Test Identification Parade was held, wherein PW-1 and PW-2 participated and PW-1 has identified all the three accused and PW-2 identified the first Accused alone. It is the submission of the learned counsel for the petitioners that PW-4, who also said to have seen the accused, did not participate in the Test Identification Parade and that prior to the Test Identification Parade, they were also shown to PW-1 and PW-2 in the Police Station and also drawn the attention of this Court to the suggestion made by PW-8 in this regard.

On a perusal of the testimony of PW-8, Judicial Magistrate No. I, Virudhunagar, who conducted Test Identification Parade, would also disclose that the Test Identification Parade was conducted, by following all the formalities, scrupulously and all the three accused were properly identified by PW-1, though PW-2 has identified only the first accused.

The Non-participation of PW-4 did not, in any way, affect the case of the prosecution, for the reason that one of the affected persons, viz., PW-1 has identified all the three accused. As per the admissible portion of the confession, marked as EX-P12, MO-5 was recovered and the first accused has taken the police party to the shop of the fifth accused, wherein MO-1 to MO-4 were recovered.

It is the submission of the learned counsel for the petitioners that the fifth accused was acquitted by giving benefit of doubt and therefore, the same yardstick should have been applied to the case of the petitioners herein also and consequently the recovery of MO-1 to MO-4 cannot be believed at all and thus, the Revision Petitioners should have been acquitted.

The said submission made by the learned counsel for the petitioners is liable to be rejected, for the reason that this Court finds that the recovery was effected, as per the confession made by the first accused and the Trial Court, taking into consideration of the fact that the fifth accused had purchased MO-1 to MO-4, without knowing the fact that they were stolen properties, has acquitted him giving benefit of doubt.

It is the further submission of the learned counsel for the petitioners that PW-6 has turned hostile and therefore, admissible confession of the first accused and recovery effected in pursuant to the admission portion of the confession cannot be believed at all. The said submission is also liable to be rejected, for the reason that PW-6 has admitted his signature in the confession statement and the said fact was also spoken to by the Investigating Officer and the seizure mahazar would also sustain the fact that the recovery was effected, in pursuant to the admissible portion of the confession of the first accused. The testimony of PW-3 would also disclose that he is also one of the passengers of the bus and he has also spoken to about the occurrence and the fact that PW-1 and PW-2 boarded in the passengers bus and therefore, the fact of passenger bus stopped and through the light emanated from the headlamp, PW-1 and PW-2 had seen the accused, has been amply established by the prosecution.

This Court has also considered the alternate plea made by the learned counsel for the petitioners. Admittedly, the fifth accused was acquitted and the petitioners/Accused Nos. 2 and 3 were also charged for the commission of offence under Section 394 r/w 397 of the Indian Penal Code.

In Ram Shankar Singh and Others Vs. State of Uttar Pradesh, six persons were charged with dacoity and on appeal, the High Court had acquitted three accused, out of six accused and in the light of the fact, coupled with the legal position, the Hon''ble Supreme Court of India found that the remaining three accused could not have been convicted for dacoity.

In Om Prakash and Another Vs. State of Rajasthan, , five accused were charged with dacoity, but two of them were acquitted and the Hon''ble Supreme Court of India, in such a situation, held that the conviction of three accused for dacoity cannot stand and altered their conviction to one under Section 392 of the Indian Penal Code. Section 391 of the Indian Penal Code defines dacoity, which reads as follows:--

"When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity"." Section 397 of the Indian Penal Code is the penal provision.

Admittedly, the fifth accused was acquitted by awarding benefit of doubt and the State did not prefer any appeal against the acquittal of the fifth accused and it is not made known by the prosecution as to whether the first accused has filed any revision challenging the conviction and sentence passed by the Lower Appellate Court. However, the prosecution has proved the guilt on the part of the accused Nos. 1 to 3. As per the ratio laid down in the said decisions, out of five accused charged with dacoity, if one or more of them were acquitted for the charge, the conviction of other accused for the commission of offence of dacoity cannot stand and in this regard, this Court has heard the submission of the learned Additional Public Prosecutor also.

It is represented by the learned counsel for the petitioners that the second accused, during the course of investigation and trial, was incarcerated for nearly three years and the third accused was incarcerated for nearly one and half years and their sentences of imprisonments were also suspended by this Court, while entertaining these Criminal Revision Cases.

The learned Additional Public Prosecutor, on instructions, would contend that the petitioners are not having any antecedents and after their sentences of imprisonments were also suspended, they have not indulged in any activities of similar in nature.

In the result, the Criminal Revision Cases are partly allowed and the conviction of the petitioners/Accused Nos. 2 and 3 under Section 394 r/w 397 of the Indian Penal Code is set aside, instead, both of them are convicted for the commission of offence under Section 394 of the Indian Penal Code and awarded sentence of imprisonment of four years each with fine of Rs. 5,000/- with default sentence of six months rigorous imprisonment. The period of incarceration already undergone by them during investigation and trial is set off under Section 428 of the Code of Criminal Procedure. Bail bonds executed by the petitioners stand cancelled. The respondent is directed to take necessary and expeditious steps to secure the custody of the petitioners so as to enable them to undergo the remaining period of sentence of imprisonment.