Bail Slip That the Appellant in Crl.App.592/07 accused in SC.54/2006 namely Balamurugan was directed to be released on bail by the order of this Court dated 11.12.2007 in Crl.MP.No.1/2007 in Crl.APP.592/07. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.07.2009 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.A.Nos.490 and 592 of 2007 and M.P.No.1 of 2007 1.Ravi @ Ravikumar ... Appellant in Crl.A. No.490 of 2007 2.T.Balamurugan ... Appellant in Crl.A. No.592 of 2007 Vs. The State Rep. by the Inspector of Police Chithode Police Station Chithode Erode District ... Respondent in both (Cr.No.497/2005) appeals These Criminal Appeals have been filed under Section 374 of Criminal Procedure Code as against the judgment of conviction and order of sentence dated 29.01.2007 made in S.C.No.57 of 2006 by the II Additional Assistant Sessions Judge, Erode imposed against the appellants. For Appellants : Mr.B.Rajamani, (C.A.No.490/2007) Mr.K.Thilageswaran (592/2007) Mr.I.C.Vasudevan (M.P.No.1/2007) For Respondent : Mr.J.C.Durairaj, Govt. Advocate (Crl. Side) J U D G M E N T The Accused Nos.1 and 2 in S.C.No.57 of 2006 on the file of the II Additional Assistant Sessions Judge, Erode, who stood charged, found guilty and convicted for offences punishable under Sections 450, 394 and 395 IPC have filed these two appeals https://hcservices.ecourts.gov.in/hcservices/ separately. Each one of the appellant was sentenced by the trial court to undergo rigorous imprisonment for a period of 10 years and pay a fine of Rs.1,000/- and to undergo one year rigorous imprisonment in case of default in payment of fine for each one of the offences punishable under Sections 450 IPC, 394 IPC and 395 IPC. However, the trial court has orders that the substantive sentences of imprisonment shall run concurrently. 2. Crl.A.No.490/2007 is the appeal preferred by Ravikumar, the first accused. Crl.A.No.592/2007 is the appeal preferred by Balamurugan, the second accused. Since both the appellants were jointly tried and were convicted in one and the same sessions case in respect of one and the same crime No.497/2005 as joint offenders and since both appeals have arisen out of the same judgment of the trial court made in S.C.No.57/2006, they are taken up together for disposal and this court passes the following common judgment. 3. Based on the complaint of P.W.1-Shanthi a case was registered on the file of Chitode police station in Cr.No.497/2005 against two unnamed persons for an alleged act of chain snatching, punishable under Section 380 IPC. P.W.12, the then Inspector of Police, after conducting an investigation submitted a final report, after altering the penal provisions, alleging commission of offences punishable under Sections 454, 494 and 495 IPC by the appellants in these appeals/A1 and A2 and three other persons viz. Gopinath, Sekar @ Chandrasekar and Murugan (A3 to A5). Based on the said final report, all the five persons were prosecuted for the said offences before the trial court. At the end of trial, the learned trial judge acquitted A3 to A5 in respect of the charges and convicted the appellants herein (A1 and A2) in respect of all the three charges and sentenced them as indicated supra. Challenging the correctness and legality of conviction and sentence, the appellants herein (A1 and A2) have preferred these criminal appeals. 4. The case of the prosecution in brief is as follows:- P.W.1-Shanthi is a resident of sengal choolai thottam, Nazianoor, Pallatthurkadu. On 06.10.2005 at about 2.30 p.m she was lying in the hall and was thus taking rest. While so, two unknown persons entered the house through the entrance which was not locked and snatched the gold chain from her neck. Thereafter they took the keys of the bureau from the table, opened the bureau and took away two gold chains each weighing one sovereign, a pair of ear studs (gold) weighing ½ sovereign and a ring and left the said place. After the said thieves left the place, P.W.1 raised an alarm which attracted the neighbours, namely P.W.2-Sankar, P.W.7- Srinivasan and P.W.8-Murugan. She narrated to them what happened. Thereafter, P.W.1 along with neighbours made a search in the location but could not found the thieves. When the chain was snatched from her neck, P.W.1 sustained injuries on the neck and hence she was taken to P.W.5-Dr.Rangasamy for treatment by P.W.4- https://hcservices.ecourts.gov.in/hcservices/ Duraisamy. The injuries were found to be simple in nature and P.W.5 advised P.W.4 to take P.W.1 to the Government hospital, as the case was a medico-legal case. Thereafter, P.W.1 was admitted in the Government hospital, Erode where she was examined by P.W.10- Dr.Dharmaraj and admitted as an in-patient for treatment. P.W.10 also sent an intimation under Ex.P24 regarding the admission of P.W.1. Ex.P25 is the accident register prepared by P.W.10 at the time of admission of P.W.1. After the receipt of intimation from the hospital, the statement of P.W.1 marked as Ex.P1 was recorded at 8.30 p.m on 06.10.2005 by the then Sub-Inspector of Police P.W.11-Marappan. A case was registered by him in Cr.No.497/2005 for an offence under Section 380 IPC by preparing Ex.P26- first information report in the printed format. The initial investigation was taken up by P.W.12-Loganathan, the then Inspector of police, Chitthode. He visited the place of occurrence and prepared Ex.P2-observation mahazar and Ex.P27-rough sketch. On 09.10.2005, P.W.12 arrested the appellants (A1 and A2) while conducting regular vehicle check up and recorded the confession statements given by the appellants/ A1 and A2. Based on the information furnished by the appellants, Gopinath, Sekar @ Chandrasekar and Murugan (A3 to A5) were arrested on the very same day at Avalpoondurai bus stop. He recorded the confession statement of those persons also in the presence of witnesses and recovered the stolen properties marked as M.Os.1 to 6 from the accused persons. Thereafter an alteration report altering the penal provision from 380 IPC to 450, 394 and 395 IPC marked as Ex.P38, was prepared and sent to the court on 22.11.2005. Thereafter P.W.12 was transferred and P.W.13 the successor-in- officer, completed the investigation and submitted a final report as aforesaid. 5. The final report was taken on file by the learned Judicial Magistrate No.III, Erode as P.R.C.No.8/2008. After furnishing copies of the records to the accused free of cost under Section 207 Cr.P.C, the case was committed by the said Judicial Magistrate for trial to the Sessions court, Erode sessions division as the offences were exclusively triable by a court of session. The learned Principal Sessions Judge, Erode Sessions Division, Erode took it on file as S.C.No.57/2006 and made it over to the learned II Additional Assistant Sessions Judge, Erode for disposal in accordance with law. 6. In the trial court necessary charges were framed for offences under Sections 450, 394 and 395 IPC. The accused persons denied the charges, pleaded not guilty and wanted the case to be tried. In order to prove the charges made against the accused persons, 13 witnesses were examined as P.Ws.1 to 13, 38 documents were marked as Exs.P1 to P38 and six material objects were marked as M.0s.1 to M.O.6 on the side of the prosecution. After the examination of witnesses on the side of prosecution was over, the accused were questioned under Section 313(1)(b) Cr.P.C regarding the incriminating materials available in the evidence adduced on https://hcservices.ecourts.gov.in/hcservices/ the side of the prosecution. They denied them as false and maintained that they were innocent. No witness was examined and no document was marked on the side of the accused persons. No material object was also produced. 7. The trial court, after hearing the arguments advanced on either side, considered the evidence brought before it and upon such consideration, came to the conclusion that none of the charges made against A3 to A5 were proved beyond reasonable doubt and acquitted them of all the charges framed against them. However, the learned trial judge held that all the charges framed against the appellants herein (A1 and A2) were proved, held them guilty of offences punishable under Sections 450, 394 and 395 IPC, convicted each one of the appellants for the said offences with imprisonment and fine and default sentence as indicated above. The judgment of the trial court dated 29.01.2007 by which the appellants have been convicted and the order of sentence incorporated therein are challenged in these appeals by the appellants (A1 and A2) on various grounds set out in the appeal petitions. 8. The point that arises for consideration in both the appeals is as follows: "Whether the conviction of the appellants (A1 and A2) for offences punishable under Sections 450, 394 and 395 IPC can be sustained in law?" 9. Mr.B.Rajamani, learned counsel for the appellant in Crl.A.No.490/2007 (A1) and Mr.K.Thilageswaran, learned counsel for the appellant in Crl.A.No.592/2007 (A2) have made identical submissions in their arguments advanced in favour of the respective appellants, which are as follows: 10. The judgment of the court below is contrary to law, weight of evidence and probabilities of the case. The judgment of the court below in so far as the conviction of the appellants is concerned, is purely based on presumption, surmises and conjectures. The inordinate delay in lodging the complaint has not been explained. Furthermore, there is an unexplained delay in discharging the complaint and FIR to the magistrate which will give rise to an inference or at least a reasonable suspicion that Ex.P1- complaint and Ex.P26-First Information Report could have been brought into existence only after arresting the accused persons. The statement recorded by the police personnel in the Government Hospital outpost police station was burked and a new statement, namely Ex.P1 has been pressed into service which shall be obvious from the admission made by P.W.10-medical officer that the intimation was sent to the police outpost within the Government hospital campus and the police personnel from the said outpost police station came and recorded the statement of P.W.1. Many vital and material contradictions have not been properly dealt with by the learned trial judge. The case of the prosecution regarding https://hcservices.ecourts.gov.in/hcservices/ the alleged arrest, recovery and identification of the accused persons seems to be more artificial and dramatic. P.W.1, the only person who is said to have seen the accused while they were committing robbery has not chosen to give clear evidence as to whether she identified the appellants A1 and A2 to be the persons who committed robbery on her. The witnesses examined on the side of the prosecution to prove the alleged confession statements of the accused persons leading to the recovery of the alleged stolen propertird have not supported the case of the prosecution and they have simply stated that they were invited to the police station to sign as witnesses and that apart from signing the papers, they did not know anything about the case including the alleged arrest, confession statement and recovery. Even the evidence of P.W.1 is conflicting with the statement found in Ex.P1, but the learned trial judge has completely ignored the said vital contradiction. The injuries allegedly sustained by P.W.1 were minor and they have been certified to be simple. P.W.1, who chose to go to a homeopathy doctor (P.W.5) who gave the opinion that the injuries were minor, had not chosen to go to the police station and prefer a complaint before rushing to the Government hospital. The very fact that P.W.1 is said to have rushed to the hospital for such minor injuries will give rise to a suspicion that the case of the prosecution could be a concocted one. Had the trial court approached the issue in an unbiased manner, it would not have arrived at any other conclusion than that the charges made against the appellants also had not been proved beyond reasonable doubt. The very approach made by the learned judge shall give an impression that the learned trial judge was searching points for convicting at least some of the accused persons rather than considering the evidence without bias and with an open mind. 11. It is the further contention of the learned counsel appearing for the appellants that perversity is writ large in the judgment of the trial court so far as it relates to the conviction of the appellants and hence the same should be set aside with the result that the appellants should also be acquitted of the offences with which they stood charged. 12. The submissions made by Mr.J.C.Durairaj, learned Government Advocate (Crl. Side) representing the respondent state, in reply to the above said arguments advanced by learned counsel for the appellants were heard. This court paid its anxious considerations to the same. The judgment of the court below, appeal petitions and the entire materials on record were also perused. 13. Out of five persons prosecuted for offences punishable under Sections 450, 494 and 495 IPC, three persons were found not guilty and were acquitted and two were found guilty of the said offences. A1 and A2 who were convicted by the trial court are the appellants herein in these appeals. The case of the prosecution is that all the five accused persons jointly committed the said https://hcservices.ecourts.gov.in/hcservices/ offences for which they were prosecuted. The prosecution story is that, though the names and identity of the offenders were not initially known, within three days after the occurrence they were fixed based on their confession statements. According to the prosecution case, P.W.2-the first Investigating officer of this case, while conducting regular vehicle check up, intercepted the two-wheeler in which the appellants herein (A1 and A2) were proceeding and arrested them when they tried to escape without stopping the vehicle at the direction of the police. It is the further case of the prosecution that on being arrested the appellants (A1 and A2) revealed their involvement in the commission of offences alleged in this case besides their involvement in many other cases. The particulars of the other cases are not available. 14. It is the further case of the prosecution that only after the arrest of appellants herein (A1 and A2) it came to light that three more persons, namely A3 to A5 also jointly committed the offences along with the appellants and that all the three persons were arrested on the very same day at Avalpoondurai bus stop pursuant to the identification made by the appellants herein (A1 and A2). As seen from Ex.P1-complaint and Ex.P26-first information report, the police were informed that only two unknown persons committed robbery in the house of P.W.1 on 06.10.2005 at about 2.30 p.m. Excepting the alleged confession statement of the appellants leading to the alleged recovery of M.Os.1 to 6, there is no other evidence to show that there were five persons involved in the commission of the offences alleged till 09.10.2005 when all the accused (five in number) were said to have been arrested. The case of the prosecution as per the complaint and FIR remained as if robbery or theft was committed by two persons alone. Even though all the five accused were allegedy arrested on 09.10.2005 itself, the case was not immediately altered and the alteration memo was prepared and sent only on 22.11.2005. The entire case of the prosecution rests on circumstantial evidence rather than direct evidence. The circumstances relied on by the prosecution are the arrest of the accused persons and recovery of M.Os.1 to 6. 15. P.Ws.7 and 8 are said to be employees of Sakthi Paper Board Company. They have deposed in one voice that their employer Ramamurthy directed them on 09.10.2005 to go to the police station to attest certain documents as witnesses and that as per the direction of their employer, they went to the police station and affixed their signatures in the documents as directed by the police. They have admitted their signatures found in the alleged confession statements of accused 1 to 5. But they have clearly denied having been witnesses for recording the confession statements and for recovery of the material objects. Hence their signatures found in the confession statements and recovery mahazars have been marked as Ex.P3 to P22. The recovery mahazars have been marked as Exs.P30, P31, P34, P36 and P37 whereas the admissible portion of the confessions statements of the accused persons were marked as Exs.P28, P29, P32, P33 and P35. Yet another witness https://hcservices.ecourts.gov.in/hcservices/ examined on the side of the prosecution to prove recovery has been examined as P.W.9. He has also not supported the prosecution case. As such, P.Ws.7 to 9 were treated hostile and cross-examined by the Public Prosecutor with the permission of the court. However, no answer useful to the prosecution case could be elicited from them even during the said cross-examination. Therefore, the evidence of P.Ws.7 to 9 have to be discarded as they are not useful for proving the prosecution case. 16. Out of the remaining witnesses, P.W.1 is the de-facto complainant and P.Ws.2 to 6 are the supporting witnesses. None among P.W.2 to 6 is an eye witness to the occurrence. P.W.2 is said to be one of the persons who is said to have met P.W.1 immediately after the occurrence and heard through the mother of P.W.1 as to what happened. According to P.W.4's evidence, he went to the house of P.W.1 at 4.00 p.m on 06.10.2005 on seeing a crowd having been collected there. On his arrival, he saw P.W.1 with injuries on the cheek and neck and her mother informed him that five persons robbed P.W.1 of her jewels. It is an admitted fact that nobody knew the involvement of accused 3 to 5 in the commission of the offences alleged till the appellants A1 and A2 were arrested on 09.10.2005. The complaint recites that only two persons came to the house of P.W.1 and committed robbery. Throughout P.W.1 maintained that she was robbed by two persons alone. She has not spoken any single word against the other three accused persons throughout her evidence. While so, it is surprising how the mother of P.W.1 could have informed P.W.2 that there were five persons in the group of robbers, that too within 1½ hours after the occurrence and even before the case was registered. 17. P.W.3 is none other than the son of P.W.1. His evidence is only hearsay. P.W.4, the person who is said to have taken P.W.1 to the hospital, has stated that he was informed by P.W.1 that she was relieved of her chain by two persons. He has not spoken about any information furnished by P.W.1 regarding the involvement of three more persons. P.W.5's evidence is till bereft of particulars. He has simply stated that P.W.1 was brought to him at 3.00 p.m on 06.10.2005 with the information that somebody snatched her chain. P.W.6 is the brother of P.W.1. He gives an entirely new story which is totally unbelievable. It is not the evidence of P.W.1 that her hands were tied and her mouth was gazed with linen. On the other hand P.W.6, in his evidence would state that he was informed by P.W.1 when she met her while she was in the hospital; that the thieves (two in number) tied her hands behind her back, put the cloth on her mouth, caused threat and robbed not only jewels weighing five sovereigns but also a cash of Rs.2,000/-. It is not the evidence of P.W.1 or any other witness that any cash was stolen. Therefore, the introduction of P.W.6 as a witness to corroborate P.W.1 will also show evidence of concoction, as rightly pointed out by the learned counsel for the appellants. https://hcservices.ecourts.gov.in/hcservices/ 18. Apart from the improbabilities in the prosecution case that as many as five persons were involved in the commission of the offences alleged, there are other vital and material contradictions improbablising the case of the prosecution as against the appellants (A1 and A2) also. As per the prosecution, the complaint was given by P.W.1 stating that she was robbed of the jewels by two unknown persons. She has not even given the salient features of their physical appearance. It has also not been stated in the complaint that she could be in a position to identify the accused persons if she would see them again. When that is so, and the case of the prosecution is that the appellants herein/accused were arrested by the police while conducting regular vehicle check up and on being interrogated they revealed their involvement in this case, they should have arranged for a test identification parade to find out whether P.W.1 would be in a position to identify them as the culprits. But no such test identification parade was conducted. 19. On the other hand, the evidence of P.W.1 itself reveals the fact that the appellants A1 and A2 were never identified by P.W.1 to the police to be the persons who committed robbery in her house on 06.10.2005. Her evidence is to the effect that she was informed by the police, when she went to the police station to identify the property stolen from her, that the appellants herein/A1 and A2 were the persons who committed robbery in the house of P.W.1. It is her further evidence that the police only informed her of the names of the appellants herein/A1 and A2. Therefore, it is quite obvious that P.W.1 herself has not asserted that the appellants/A1 and A2 were the miscreants who committed robbery in her house. There are also discrepancies in the evidence of P.W.1 when it is considered in the light of the averments found in Ex.P1-complaint. In Ex.P1-complaint she had stated that out of the two persons who entered her house to commit theft, one snatched her chain and the other took the bureau key and stole the articles kept in the bureau. On the other hand, while deposing as P.W.1 before the trial court, she has stated that both the persons jointly snatched the chain. Her evidence in the vernacular language is extracted here under for the purpose of better appreciation. "mg;nghJ jpObud;W 2 ngh;fs; te;jhh;fs;/ vd; tPl;ow;Fs; te;jhh;fs;/ fjt[ jpwe;jpUe;jJ/ mjdhy; tPl;ow;Fs; te;jhh;fs;/ vdJ fGj;jpypUe;J brapid ,Gj;J mWj;J ,uz;L ngUk; vLj;Jf;bfhz;lhh;fs;/ " 20. It is her evidence that only after jointly snatching the chain from her, one of them opened the bureau with the help of the keys found on the table and took away two chains, each weighing one sovereign, one ring and one pair of studs. The theft of studs has not been spelt out in the complaint. Though P.W.1 has stated in https://hcservices.ecourts.gov.in/hcservices/ her evidence that she identified the jewels and one cell phone on 15.10.2005, she has not stated anything about the cell phone. Though she was able to give the cell phone number at the time of examination as P.W.1 she has admitted that she did not furnish the cell phone number either in the complaint or in the statement given to the police. The evidence of P.W.1 as to when she met the appellants/A1 and A2 subsequent to the occurrence is contradictory to the case of the prosecution regarding the arrest of the accused persons. According to P.W.12 and the documents produced on the side of the prosecution, the appellants and other accused persons were arrested only on 09.10.2005 and M.Os.1 to 6 were recovered on 09.10.2005. It is the evidence of P.W.1 that she identified the material objects in the police station on 15.10.2005. To that extent that may be probable. But in the light of her further statement in her evidence to the effect that she saw the appellants/A1 and A2 in Chithode police station on 08.10.2005, the same becomes quite improbable and rather unbelievable. According to the prosecution case, all the accused persons were arrested only on 09.10.2005. But P.W.1's evidence is to the effect that the appellants were in the police custody in Chithode police station on 08.10.2005 and she saw them on the said date. Therefore, the very theory of arrest, confession and recovery becomes highly improbable and unbelievable. 21. Apart from the same, a more vital defect which will totally upset the prosecution theory is that not only there is a delay in lodging the complaint but also there