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Judgment
Honourable Mr. Justice C.T. Selvam
The revision petitioners and two others stood trial for offence under Sections 452 and 397 r/w 34 of Indian Penal Code in S.C.No.41 of 2004 on the file of the Assistant Sessions Judge Cum Chief Judicial Magistrate Court, Pondicherry.
The case of the prosecution was that the five accused and one another, who died pending investigation, trespassed into the residence of complainant PW1 at about 1.30 hours on 29.07.2001 and in furtherance of their common intention caused hurt to the complainant PW1, his wife PW2 and their servant PW3, using sickle and sticks and also committed dacoity of 52 sovereign gold Jewels worth about Rs.1,22,000/-and also cash of Rs.200. In the said process, the petitioners/accused caused grievous hurt to PW1 and PW2.
In the trial Court the prosecution examined 24 witnesses and marked 26 exhibits and 13 material objects.
On appreciation of evidence, the trial Court convicted the petitioners herein, who are accused 1, 2 and 4 for offence u/s 452 r/w 34 of IPC and sentenced them to undergo rigorous imprisonment for seven years and fine of Rs.500/-, in default, simple imprisonment three months and under Sections 397 r/w 34 of IPC sentenced them to undergo rigorous imprisonment of seven years each. The sentences were to run concurrently. The other two accused were acquitted. Against their conviction, revision petitioners moved appeals in C.A.Nos.72 and 73 of 2006 and the same were dismissed under judgment of the II Additional Sessions Judge, Pondicherry dated 03.09.2007. Hence, this revision.
In the instant case, there can be no denial of the occurrence that took place at the residence of PW1 and PW2 on the night of 28.07.2011. There also is no doubt that PW3 suffered several injuries including a grievous one, while PW1 and PW2 suffered several injuries, which were simple in nature. Mos 1 to 13 were gold ornaments recovered in the case and identified by PW1 and PW2 as belonging to them. First petitioner was arrested in connection with some other offence on 17.10.2001. A gold bangle was recovered from his possession and on interrogation, he tendered a voluntary confession statement in which, he admitted to his involvement in Crime No.113 of 2001 on the file of the respondent i.e. the present case. He was also involved in another crime in AndhraPradesh. A gold bangle seized from him was found connected to the present case. He led the police party to Kottapalli village and identified the second accused. Both A1 and A2 led the police party to various places where they had pledged the gold jewels and stolen articles. A4 (the second petitioner) surrendered before the respondent police on 16.06.2003. He was taken into custody and on his confession statement, certain gold items were recovered from a pawnbroker shop at Kakinada.
Learned counsel for the petitioners submits that none of the witnesses including PW1 to PW3, had identified the accused in the box, except with the sole exception of PW1 pointing to the fourth accused. The prosecution witnesses neither identified nor described the gold jewelry either in Ex.P1-First Information Report or in 161 Cr.P.C. statements. PW1 and 2 had merely accepted, Mos 1 to 13 as belonging to them. Therefore, there was no material to inform that Mos 1 to 13 were the items of jewelery stolen in the course of commission of offence in the instant case. The prosecution had falsely shown recovery of Mos 1 to 13 at the hands of the accused so as to obtain their conviction.
The learned Additional Public Prosecutor, Pondicherry on the other hand submits that PW1, PW2 and PW3 have spoken to the occurrence, recoveries stand effected on the confession of the accused and Mos 1 to 13 were duly identified by PW1 and PW2 as belonging to them. Upon the confession of A1, the involvement of the other accused, has come to light. There was no infirmity in the prosecution case so far as these petitioners are concerned and therefore, the findings of conviction by the Courts below are to be sustained.
On consideration of the rival submissions and the material on record, this Court finds justified the conviction in so far as A1 and A4 are concerned. A1 has been arrested in connection with a different case, and therein he had confessed to involvement in the present case. Pursuant thereto recoveries of M.Os.1 to 13 have been made and they have duly been identified by P.Ws1 and 2 as belonging to them. As regards A4, it is in the evidence of P.W.1 that the A4 was found roaming around his house a few days prior to the occurrence. Therefore, there is no surprise in P.W.1 specifically pointing to A4 in the course of his examination. In so far as A2 is concerned the material available against him is the confession of A1 and the recovery of some of the material objects through him. We would have been able to arrive at conviction of A2 if the confession of A1 informing his involvement found due corroboration. The involvement of A2 is sought to be established through the recoveries of some of the material objects. The witnesses to the recovery are P.Ws.11 and 12. They have admitted to having been witness to recoveries on several occasions at the instance of police. Therefore, they are seen to be stock witnesses. Placing reliance on their evidence on the aspect of the recovery from the second accused is, in the opinion of this Court, not justified. When the recovery of material objects through the second accused is so disbelieved, the confession of A1 regards the involvement of this accused stand uncorroborated. For the said reason, this Court would set aside the conviction as against the second accused.
Accordingly, the findings of the Courts below convicting the petitioners 2 and 3 (Accused 1 and 4) under Sections 452 and 397 IPC r/w 34 IPC and sentences passed against them shall stand confirmed. The conviction as against the first petitioner/second accused shall stand set aside.
The learned counsel for the petitioners submits that the accused are presently in the Central Jail, Rajamundri, Andra Pradesh. A copy of the judgment shall be forwarded to the Superintendent of such jail.