IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12-4-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.No.804 of 2009 Murugan @ Kari Murugan .. Appellant/A-4 vs State rep. By Inspector of Police Paramathi Police Station Namakkal (Crime No.197 of 2000) .. Respondent/ Complainant Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge cum Chief Judicial Magistrate, Namakkal, made in S.C.No.128 of 2002 dated 29.11.2002. For Appellant : Mr.S.Sivakumar For Respondent : Mr.V.R.Balasubramanian Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the Additional Sessions Division, Namakkal, made in S.C.No.128 of 2002 whereby the appellant, who was shown as A-4, along with four other accused stood charged under Sections 394, 395 and 395 read with 397 of IPC, tried, found guilty under Sections 394 and 392 read with 397 of IPC and awarded life imprisonment along with a fine of Rs.1000/- and default sentence and 10 years Rigorous Imprisonment along with a fine of Rs.1000/- and default sentence respectively. 2.Short facts necessary for the disposal of this appeal can be stated as follows: (a) P.Ws.1, 3 and 5 were employed in a petrol bunk belonging to Petrol Bunk Lorry and Trailer Owners and Drivers Association at Keerampur Village. On the date of occurrence i.e., 29.11.2000, P.Ws.1 and 4 were working as cashiers while P.W.3 was filling the tanker lorries with diesel. On 28.11.2000, the cash collected for https://hcservices.ecourts.gov.in/hcservices/ the day was taken by P.W.6, the Supervisor. After 7.00 P.M., a sum of Rs.1,21,352/- was collected towards the sale of petrol and diesel, and it was kept in the bureau, and a sum of Rs.9000/- was kept in a drawer in the table. At about 4.30 A.M., when P.Ws.1, 3, 4 and two others were sitting outside and chatting, A-1 to A-4 armed with knives entered the petrol bunk, and A-1 threatened the witnesses to hand over the amount. P.W.1 handed over Rs.9000/- which was kept in the drawer. When A-1 asked for the keys of the bureau, P.W.1 told that he has no keys with him. Thereafter, A-1 to A-4 pushed the witnesses inside the room, broke open the bureau and took away Rs.1,21,352/- from the bureau. When P.W.1 raised alarm, A-1 cut him, and when it was warded off, P.W.1 suffered an injury. Thereafter, all the accused persons fled away from the place of occurrence with the cash robbed. (b) Immediately, P.W.1 informed the Office Bearers of the Association over phone. They reached the petrol bunk. Then P.W.1 proceeded to the respondent police station and gave a complaint, Ex.P1, to P.W.11, the Inspector of Police of that Circle. On the basis of the said complaint, P.W.11 registered a case in Crime No.197 of 2000 under Sec.394 of IPC. The printed FIR, Ex.P6, was despatched to the Court. Then, P.W.1 was sent to the Hospital for getting treatment. P.W.5 the Doctor, examined him and issued Ex.P4, the wound certificate. P.W.11 took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P5, and also a rough sketch, Ex.P7. He examined the witnesses and recorded their statements. (c) P.W.10, the Inspector of Palayamkottai Police Station, who was investigating Crime No.98 of 2001 registered at Perumalpuram Police Station, Tirunelveli District, was standing with his police party near Ram Theatre and checking all the vehicles near a check post. He saw an ambassador car bearing Registration No.TTS-5052 coming towards the check post followed by a TVS-Suzuki with Registration No.TN-37-W-3486. Two persons were travelling in the said TVS Suzuki, and all the five accused were travelling in the car. P.W.10 checked the car, and at that time, A-1 was found having a country made pistol in his waist and was also found in possession of three cartridges. A-2 was carrying a country made pistol and two cartridges. The Officer also found knives and six country made bombs in the vehicle. Thereafter, an information was given to P.W.11 about the arrest of A-1 to A-5. (d) P.W.11 on receipt of the said information, proceeded to Perumalpuram Police Station where P.W.1 identified A-1 to A-4. When A-1 was questioned, he gave a statement, and in pursuance of the same, he pointed P.W.9 whose statement was recorded. On completion of investigation, the Investigator filed the final report. 3.The case was committed to Court of Sessions, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 11 witnesses and also relied on 7 exhibits and 1 material object. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as https://hcservices.ecourts.gov.in/hcservices/ to the incriminating circumstances found in the evidence of the prosecution witnesses which they flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and hence found A-1 to A-4 guilty under the above provisions of law and awarded the punishment as referred to above. A-1 and A-3 have already filed separate appeals in C.A.Nos.1863 of 2002 and 1816 of 2003 respectively, and this Court by a judgment dated 16.12.2004, has altered the conviction of A-1 and A-3 under Sec.394 IPC to one under Sec.392 read with 397 IPC and 392 read with 34 IPC respectively and awarded 10 years Rigorous Imprisonment. Hence this appeal at the instance of A-4 before this Court. 4.Advancing arguments on behalf of the appellant, the learned Counsel would submit that it is pertinent to note that the alleged occurrence has taken place on 29.11.2000 and all the five accused were arrested on 4.7.2001; that even in the FIR, the appellant's name was not shown, but it was mentioned as "unknown person"; that in such circumstances, an identification parade should have been conducted, but not done so; that there is no specific overt act attributed against the appellant; that apart from that, there is no incriminating articles recovered from him; that the trial Court has acquitted A-5 on the same set of facts; that while so, the same benefit should have been extended to the appellant/A-4 also; and that under the circumstances, the judgment of the trial Court has got to be set aside and the appellant be acquitted. 5.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 6.It is not in controversy that P.Ws.1, 3 and 4 were working in the petrol bunk, and they were on duty at the time and place of occurrence. According to P.W.1, who is the Cashier, at about 7.00 P.M., a sum of Rs.1,21,352/- was collected and kept in the bureau, and a sum of Rs.9000/- was left in the drawer. The evidence of P.Ws.1, 3 and 4 would further go to show that when they were sitting outside the petrol bunk and chatting, A-4, the appellant herein, entered the petrol bunk, threatened the witnesses and thereafter, Rs.9000/- kept in the drawer was given to A-1, and A-1 asked for the keys of the bureau; that P.W.1 told A-1 that he had no keys with him, and the accused pushed all the three witnesses, broke open the doors of the bureau and committed theft of Rs.1,21,353/-. It is also their evidence that when P.W.1 raised alarm, A-1 cut him, and when it was warded of, he sustained an injury. The ocular testimony of P.W.1 is supported by the evidence of P.W.5, the Doctor, who treated him and issued Ex.P4, the wound certificate. That apart, the evidence also discloses that lights were burning inside as well as outside the petrol bunk, and they were able to identify the accused at the time of occurrence. 7.It is pertinent to note that the injury was caused by A-1 to P.W.1. It is also quite clear that the appellant/A-4 has not caused https://hcservices.ecourts.gov.in/hcservices/ any injury. That apart, M.O.1, gold chain, was recovered from A-1 and the same was disbelieved by the trial Court. Nothing has been recovered from the appellant/A-4. It is true that test identification parade was not conducted. But, at the same time, it is not in controversy that the accused were identified in Court by the witnesses. It is settled proposition of law that even if there had been no test identification parade, the case of the prosecution cannot be discarded if the Court is satisfied about the trustworthiness of the witnesses and if the witnesses are able to identify the accused for the first time in Court, their evidence regarding the test identification parade does not become inadmissible and cannot be rejected on the ground that there was no test identification parade earlier. 8.This Court while disposing of the appeals filed by A-1 and A-3 respectively has found that the offence committed by A-1 will fall under Sec.392 read with 397 of IPC and not under Sec.394 of IPC, and A-3 shared the common intention of A-1 and hence he was found guilty under Sec.392 read with 34 IPC instead of 394 IPC. The appellant/A-4 is also on the same footing as that of A-3, and he has also shared the common intention of A-1. Hence A-4 has to be found guilty under Sec.392 read with 34 of IPC instead of Sec.394 IPC. As regards imposition of punishment, it is brought to the notice of the Court by the learned Counsel for the appellant that A-3 has preferred an appeal before the Supreme Court in Criminal Appeal No.726 of 2007, and the Supreme Court has reduced the sentence from 10 years Rigorous Imprisonment to 6 years Rigorous Imprisonment. Under the circumstances, this Court is of the view that the same punishment namely six years Rigorous Imprisonment, could be imposed on the appellant/A-4. 9.Accordingly, the conviction and sentence imposed by the trial Court on A-4 under Sec.394 of IPC are set aside, and instead, he is convicted under Sec.392 read with 34 of IPC and is directed to suffer six years Rigorous Imprisonment. 10.The sentence of 10 years Rigorous Imprisonment imposed by the trial Court on A-4 under Sec.392 read with 397 is also reduced to 6 years Rigorous Imprisonment. 11.The sentence already undergone by him shall be given set off. However, the fine amounts imposed by the trial Court on A-4 will hold good. Both the sentences should run concurrently. 12.With the above modification in conviction and sentence, this criminal appeal is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ nsv/ To: 1.The Additional District and Sessions Judge cum Chief Judicial Magistrate Namakkal 2.-do- thro' The Prl. Sessions Judge,Namakkal. 3.The District Munsif-cum-Judicial Magistrate, Paramathi. 4.-do- thro' The Chief Judicial Magistrate, Namakkal. 5.The Superintendent, Central Prison, Coimbatore. 6.The Inspector of Police Paramathi Police Station Namakkal (Crime No.197 of 2000) 7.The Public Prosecutor High Court, Madras. 8.The Superintendent, Central Prison, Palayamkottai. 9.The Section Officer, Criminal Section, High Court,Madras. +1cc to Mr.S.Sivakumar,Advocate Sr 24554 GV(CO) km/20.4. CRL.A.No.804 of 2009 https://hcservices.ecourts.gov.in/hcservices/