Yasin and Others vs The State

S. Nagamuthu, J—Since all these appeals arise out of one and the same judgment, these appeals were heard together and they are disposed of by this common judgment.

The appellant in Crl.A.(MD).No. 67 of 2004 is the second accused; the appellant in Crl.A.(MD).No.87 of 2004 is the fourth accused; the appellant in Crl.A.(MD).No.68 of 2005 is the third accused; and the appellant in Crl.A.(MD).No.203 of 2007 is the first accused, in S.C. No.613 of 2012 on the file of the learned Additional District and Sessions cum Fast Track Court No.III, Madurai. There were as many as four charges framed against the accused as follows;

By judgment, dated 07.07.2004, the trial Court found the accused 1 to 4 guilty under Sections 392 r/w 397 r/w 34 of IPC and sentenced them to undergo rigorous imprisonment for seven years and to pay a fine of Rs.500/- each, in default to undergo simple imprisonment for six months. The trial Court has also found the 5th accused guilty under Section 8(i)(b) of the Tamil Nadu Suppression of Immoral Traffic Act and sentenced her to undergo simple imprisonment for six months. The other charges were held to be not proved. Challenging the said conviction and sentence, the appellants are before this Court with these appeals.

The case of the prosecution in brief is as follows;

(a) PW1 was driver by profession. On 22.08.2001 PW1 drove the lorry bearing Registration No.TN-28-H-0979 from Kayatharu towards Madurai to proceed further towards the State of Utter Pradesh. PW2 was also a driver in the said vehicle, but he was sleeping in the cabin. When the lorry was proceeding from Virudhunagar to Tirumangalam, at a place known as Kallikudi, a woman was standing by the side of the road and she was making gestures to stop the vehicle (she was later on identified as A5). On seeing the said woman, PW1 stopped the vehicle by the side of the road and got down from the lorry.

(b) When he enquired, the fifth accused invited him to have sex with her for money. Believing that it was a straightforward offer for prostitution, PW1 followed her. She took PW1 far away from the road to a bush. PW1 believed that he was taken to a secluded place, but, on reaching the said place, he found that there were four people (they were later on identified as A1 to A4) near the bush. They were all armed with weapons. The accused 1 to 4 tied his hands behind and also legs. One of the accused viz., A2 by brandishing the knife enquired PW1 as to where he had kept the money. PW1 told that the cash was available in the dashboard of the lorry. The second accused stayed back near the bush. Brandishing knife, he made PW1 to sit near the bush. The fifth accused also stayed there. Hence, PW1 could not raise any alarm.

(c) Then, the accused 1, 3 & 4 went near the lorry and got into the lorry and awoke PW2 and enquired him as to where was the money. Even before he could answer, they broke open the cabin and took away Rs.5,000/-, which was kept there by PW1. Then, all the said three accused went towards the bush. Within few minutes, thereafter, the accused untied PW1 and left him with a warning not to make any hue and cry. Silently, PW1 returned to the lorry and came to know that the money had been stolen away. Thus, PW1 & PW2 took the lorry to Madurai and informed the owner of the lorry about the occurrence. On his instructions, they went to Thirumangalam Taluk Police Station, where at about 7.00 a.m. on 23.08.2001 PW1 made a complaint (Ex.P1). Based on the same, PW9, the then Sub Inspector of Police registered a case in Crime No. 150 of 2001 under Section 397 of IPC. Ex.P16 is the FIR, then he forwarded the Case Diary to the Inspector of Police for investigation.

(d) PW10, the then Inspector of Police, took up the case for investigation and proceeded to the place of occurrence and prepared an observation mahazar and recovered banian, jatty and towel, which were left near the bush by PW1. A black colour resin bag, in which the cash was kept in the lorry cabin, was also recovered near the bush. PW10 made all out efforts to detect the criminals, but in vain.

(e) PW11 was the then Inspector of police at Thirumanagalam. O 22.12.2012 at about 12 midnight, he along with the Police party was on night rounds. At that time, they noticed an auto bearing registration No. 58-C-1216 moving in suspicious circumstances. On intercepting the same, they found all the five accused and arrested them. On such arrest, all the accused gave confession statements. From the possession of the accused Kasi (A4), he recovered a wrist watch. The accused were, thereafter, forwarded to the Court for remand.

(f) While the accused were in judicial remand, on the request made by the Inspector of Police, PW5 - Mrs. Vanitha, the then Judicial Magistrate No.VII, Madurai, conducted identification parade in the Central Prison, Madurai on 15.02.2002 at about 3.30 p.m. During the said identification parade, A2 to A4 were put up for identification parade. In the said proceedings, PW1 did not identify any of the accused. But, PW2 identified the accused Kasi (A4). Again she conducted identification parade for the first accused on a subsequent date. During the said proceeding, PW1 did not identify him. But, PW2 identified him. Exs.P13 & P15 are the respective identification parade reports submitted by PW5. PW12 continued the investigation from PW11 and finally laid a charge sheet against all the accused.

Based on the above materials, the trial Court framed the charges as mentioned in the first paragraph of the judgment. The accused denied the charges. In order to prove its case, the prosecution had examined as many as 12 witnesses and marked 17 documents. 7 material objects were also marked. Of the said witnesses, PW1 & PW2 are the victims. PW3 is the witness for the arrest of the accused 2 to 4 and he has also spoken about the confession given by the accused and the consequent recovery of wrist watch, from the 4th accused. PW4 is the Village Assistant, who is the witness for the observation mahazar and the material objects. PW5 - Mrs. Vanitha, the then Judicial Magistrate No.VII, Madurai, has spoken about the identification parade held by her. PW6 to PW8 have turned hostile and they have not supported the case of the prosecution in any manner. PW9, the then Sub Inspector of Police, has spoken about the registration of the case. PW10 to PW12 have spoken about the investigation done by them.

When the above incriminating evidences were put to the accused, they denied the same as false. However, they did not examine any witness on their side. Having considered all the above materials, the trial Court convicted the accused as detailed in the first paragraph of the judgment. That is how the appellants/A1 to A4 are before this Court with these appeals.

I have heard the learned counsel Mr.J.Selvam, appointed as Amicus Curiae by this Court in all the four appeals and the learned Additional Public Prosecutor Mr.C.Mayilvahana Rajendran, appearing for the State. I have also perused the records carefully.

The first and foremost point raised by the learned counsel for the appellants is that the identity of the accused has not been clearly established by the prosecution. According to the admitted case of the prosecution, none of the accused was known to them ever before the occurrence. That is the reason why, even in the FIR, they did not mention the names of any one of the accused. After almost three months from the date of the occurrence, in the first identification parade, the accused 2 to 4 were put up. In the first identification parade, PW1 did not identify any of the accused. PW2 had identified only A1 & A4 and he has not identified any other accused. So far as A1 & A4 are concerned, in the identification parade PW1 did not identify them at all. PW2 alone had identified them. Though, in Court, both the witnesses have identified all the five accused, they did not identify all the accused in the identification parade and thus, the identification made by these witnesses for the first time in the Court is highly doubtful. Except the doubtful identification made by PW2, as against the accused 1 & 4, absolutely there is no other evidence against the rest of the accused.

Apart from the above evidence, the only piece of evidence available for the prosecution is that there was a wrist watch recovered from the possession of A4. Though it is stated that the said watch was purchased by A4 out of Rs.5,000/- stolen away from the lorry, absolutely there is no evidence from the prosecution to prove the same. Thus, the wrist watch said to have been found in the possession of A4 was not linked in any manner to the crime. The trial Court has ignored these vital aspects and has convicted all the accused. It is not known as to why the fifth accused was not put up for identification parade. Though the gravamen of the offence is so serious, unfortunately the prosecution has not proved the case beyond reasonable doubts against the accused. With the available evidence, which is either insufficient or highly shaky, it is not safe to sustain the conviction.

In the result, all the appeals are allowed and the conviction and sentence imposed on the appellants in S.C. No.613 of 2002 are hereby set aside and they are acquitted from the charges. The bail bonds, if any, shall stand terminated. The fine amount paid, if any, shall be refunded to the appellants.