In the High Court of Judicature at Madras Dated: 30/01/2003 Coram The Hon'ble Mr.Justice P.D.DINAKARAN Criminal Appeal No.390 of 1995 and Criminal Appeal No.418 of 1995 Sudha @ Sudhakar .. Appellant in Crl.A.No.390/95 1.Balaji 2.Balaji @ Mohan 3.Dhana @ Dhanasekaran .. Appellants in Crl.A.No.418/95 -Vs- State, rep. by Inspector of Police, Vandavasi Police Station, Crime No.101/94. .. Respondent in both appeals. Prayer:- Appeals are directed against the judgment of conviction and sentence dated 8.3.1995 passed by the learned Assistant Sessions Judge, Arani. !For Appellant in : Mr.M.Yeswantha Rao for Crl.A.390/95 M/s.M.V.Muralidaran For Appellants in Crl.A.No.418/95 : Mr.J.I.Rajkumar Robert ^For Respondent : Mr.K.V.Jayaprakash Narayanan Govt. Advocate (Crl.Side) :J U D G M E N T Heard. 2. These appeals are directed against the judgment of conviction and sentence dated 8.3.1995 made in S.C.No.32 of 1994 on the file of the learned Assistant Sessions Judge, Arani. Criminal Appeal No.390 of 1995 is preferred by the fourth accused and Criminal Appeal No.418 of 1995 is preferred by accused 1 to 3 in the said Sessions Case No.32 of 1994. Since both the appeals arise from the same judgment dated 8.3.1995 made in S.C.No.32 of 1994, they were heard and disposed of together. 3.1. The case of the prosecution as unfolded by the evidence of one Thiru.Thangavelu (P.W.1) and Thiru.Balaraman (P.W.2), who are working as Conductor and Driver, respectively, of a bus bearing Registration No.PY-01 9798 plying between Pondicherry and Thirupathi, operated by Pondicherry Tourist Development Corporation, is stated, in brief, as follows: 3.2. The bus bearing Registration No.PY-01 9798 owned by Pondicherry Tourist Development Corporation while plying between Thirupathi and Pondicherry was returning from Thirupathi to Pondicherry on the night of 20.1.1994. It reached Vandavasi at about 1.45 a.m. on 21.1.1994. After a break of 10 minutes for tea at Vandavasi, it proceeded to Pondicherry. Within ten minutes when the bus was nearing Maruthuvambadi Cross Road, the accused, who were standing near the Conductor(P.W.1), assaulted him (P.W.1). The passengers screamed loudly. The Driver (P.W.2) switched on the light, questioned the assault by the accused and stopped the vehicle. Immediately, the accused attacked the Driver (P.W.2) by using knives and snatched away a blue colour leather cash bag (M.O.1) from P.W.1, containing the collection of the bus fare; took a brown colour rexin bag (M.O.2), containing one white shirt (M.O.3), one blue colour checked lungi (M.O.4), a small towel (M.O.5) and the identity card (M.O.6) of the Conductor and fled away on seeing a lorry coming from the opposite direction, in which one Ameed of Vandavasi Town, a fruit merchant, was travelling. The said Ameed (P.W.5) shifted the Conductor (P.W.1) and the Driver (P.W.2) in the said lorry to Vandavasi Bus Stand, from where P.Ws.1 and 2 were taken to the Government Hospital, Vandavasi, by a police constable Ganesan (P.W.6), who was on beat duty at Vandavasi bus stand. 3.3. Both the Conductor (P.W.1) and the Driver (P.W.2) were admitted in the Government Hospital, Vandavasi by Dr.I.Ramalingam (P.W.11) at 3.15 a.m. on 21.1.1994 and P.W.11 issued Accident Registers Exs.P15 and 16 recording the injuries on the body of P.Ws.1 and 2 respectively. In the Government Hospital, Vandavasi, P.W.1 gave a statement about the occurrence (Ex.P.1) at about 4.15 a.m. on 21.1.1994, and the same was recorded by a Police Constable T.L.Paulraj (P.W.13), based on which P.W.13 registered a First Information Report (Ex.P.19). After giving first aid in the Government Hospital, Vandavasi, P.Ws.1 and 2 were referred to the General Hospital, Pondic herry, for further management and treatment. Accordingly, P.Ws.1 and 2 were admitted in the General Hospital, Pondicherry, in the casualty ward by Dr.P.Muthayan (P.W.12), who issued the Medicolegal Examination Reports, marked as Exs.P.17 and 18 with respect to the wounds found on the Conductor (P. W.1) and the Driver (P.W.2). 3.4. In the meanwhile, the Inspector of Police at Vandavasi, K.R. Natesan (P.W.14) undertook investigation on the FIR (Ex.P.19), went to the scene of occurrence and prepared an Observation Mahazar (Ex.P.2) and a Rough Sketch (Ex.P.20) in the presence of the Village Administrative Officer(P.W.7), of Illangadu Village. As per Ex.P.2 Observation Mahazar, the occurrence had taken place 4 kms. away on the southern side of Vandavasi Police Station in Vandavasi to Tindivanam Road near Maruthuvampadi Cross Road, where the bus PY-01 9798 belonging to the Pondicherry Tourist Development Corporation was standing in the middle of the road towards Tindivanam. P.W.14 in his Observation Mahazar (Ex.P.2) recorded that he noticed blood stains on the driver's seat, door and body of the bus as well as on the road where the bus was standing. 3.5. From the place of occurrence, P.W.14 recovered the following material objects under a mahazar (Ex.P3) in the presence of P.W.7 and one Azirvadham:- (i) one pair of rubber sandal chappal (M.O.16); (ii) a rose colour turki towel with blue colour stripes (M.O.17); (iii) trip sheet from 1.1.1994 to 20.1.1994 with respect to PY-01-979 8 (M.O.18); and (iv) a ticket book bearing tickets containing Serial Numbers 793201 to 793600 wherein the tickets were used upto Serial Number 793566 (M. O.19). 3.6. An investigation team (party sakitham) lead by P.W.14 and accompanied by P.W.7, who is familiar in and around Vandavasi, went in search of the accused to apprehend them. When the investigation team was moving towards Vandavasi-Tindivanam Road, after enquiring ten persons, they came across a suspicious person by name Balaji (A1) near Industrial Training Institute at Ponnur Road at about 3.00 p.m, and as he was attempting to move away, P.W.14 interrogated him. During the interrogation, P.W.14 recovered the following material objects from A1 under a mahazar Ex.P.4 in the presence of P.W.7:- (i) a sum of Rs.1200/- (100 rupees currency note - 12 numbers) (M.O.2 0 series); and (ii) a ticket No. 793527 (M.O.21); 3.7. The said Balaji (A1) gave a confession statement (admitted portion in the confession statement was marked as Ex.P.22) in the presence of P.W.7. Based on the confession statement Ex.P.22, P.W.14 proceeded to the lands owned by one Veerasami, which is near the place of occurrence and recovered the following material objects under a mahazar (Ex.P6) in the presence of P.W.7:- (i)a black colour leather cash bag (M.O.1); (ii)a rexin bag (M.O.2); (iii)identity card of the Conductor (M.O.6); and (iv) four pattaknives (M.Os.10 to 13); 3.8. On the information furnished by A1 in his confession statement marked as Ex.P.22, P.W.14 proceeded to Kancheepuram bus stand where the other accused A2, A3 and A4 were supposed to wait for A1. Accordingly, on reaching Kancheepuram bus stand, P.W.14 found A2, A3 and A4, namely, Balaji @ Mohan, Dhana @ Dhanasekaran and Sudha @ Sudhakaran waiting for the said Balaji (A1) near a tender coconut shop. Identified by A1, P.W.14 arrested A2, A3 and A4 at Kancheepuram bus stand at 6.00 p.m. on 21.1.1994. Immediately, a search was conducted by P.W.1 4 on A2, A3 and A4. P.W.14, during the search recovered the following material objects under a Mahazar (Ex.P11) in the presence of P.W.7:- (i)Rs.565/- (M.O.22 series) (100 rupees currency note - 5 numbers, 20 rupees note - 1 number, 10 rupees note - 2 & 5 rupees note - 5 numbers); and (ii) and a ticket No.793528 (M.O.23) from A2; (iii) Rs.570/- (M.O.24 series) (100 rupees note - 5 numbers, 20 rupees note - 2 numbers & 5 rupees note - six numbers); and (iv)a ticket No.793529 (M.O.25) from A3; (v) Rs.560/- (M.O.26 series) (100 rupees note - 3 numbers, 50 rupees note - 4 numbers, 20 rupees note - 1 number & 5 rupees note - 8 numbers); and (vi)a ticket No.793530 (M.O.27) from A4. 3.9. A2 and A3 gave confession statements to P.W.14 and the admitted portion in the confession statements were marked as Exs.P23 and 24 respectively. Based on the confession statement of A2, P.W.14 seized a checked lungi (M.O.4) under a mahazar Ex.P.10 in the presence of P. W.7 and based on the confession statement of A3, P.W.14 seized a white shirt (M.O.3) from A3 under a Mahazar (Ex.P.11) in the presence of P.W.7. 3.10. P.W.14 took further investigation into the matter, examined the witnesses and filed a final report against the accused for the offences punishable under Sections 392, 397, 326 and 506(ii) I.P.C. before the learned Judicial Magistrate, Vandavasi, who committed the case to the learned Assistant Sessions Judge, Arani. 4. The learned Assistant Sessions Judge, Arani, framed charges against A1 to A4 under Section 392 I.P.C. for the robbery of Rs.3,000/-; under Section 392 r/w 397 I.P.C. for having caused grievous injuries on the Conductor (P.W.1) and the Driver (P.W.2) by using deadly weapons (M.Os.10 to 13) while committing the said robbery; under Section 3 26 I.P.C. for having caused grievous hurt by cutting the Conductor ( P.W.1) with a pattaknife on his right eye-brow, right forehead, both left and right arms, right fore arm and right little finger and for having caused grievous hurt by cutting the Driver (P.W.2) with a pattaknife on his left hand, right arm, left thumb, tenderness over the left knee; and under Section 506(ii) I.P.C. for having threatened the passengers to cause death during the occurrence. 5.1. During the trial, 14 witnesses were examined as P.Ws.1 to 14, 2 4 exhibits were marked as Exs.P1 to P24 and 34 material objects were produced as M.Os.1 to 34, on behalf of prosecution. 5.2. Among 14 witnesses, the Conductor was examined as P.W.1, the Driver was examined as P.W.2; two passengers, who travelled in the bus and had seen the occurrence, were examined as P.Ws.3 and 4, and one Ameed was examined as P.W.5, who was travelling in the lorry, which came from the opposite side at about 2 a.m. on 21.1.1994, stopped near the place of occurrence, rescued P.Ws.1 and 2 and shifted them to the Vandavasi bus stand, from where Beat Police Ganesan (P.W.6) took P.Ws.1 and 2 to the Government Hospital, Vandavasi. P.W.11 was the medical witness, namely, Dr.I.Ramalingam, who admitted P.Ws.1 and 2 in the Government Hospital, Vandavasi, and referred P.Ws.1 and 2 to the General Hospital, Pondicherry, where P.Ws.1 and 2 were admitted by Dr.P.Muthayan (P.W.12) in the casualty ward. P.W.7 was the Village Administrative Officer, who accompanied the investigating team lead by P.W.14. P.W.8 is the witness to the mahazar for the recovery of blood stained clothes of P.Ws.1 and 2. P.W.10 was the Judicial Magistrate, Cheyyar, who conducted an identification parade. P.W.13 was a Police Constable, who recorded the statement of P.W.1 (Ex.P1) in the Government Hospital, Vandavasi. 5.3. On the side of the defence, 6 witnesses were examined as D.Ws.1 to 6 and 11 exhibits were marked as Exs.D1 to D11. 5.4. While questioning the accused under Section 313 Cr.P.C. after the trial, the accused pleaded not guilty and A1, A2 and A3 stated that they never travelled in the bus from Thirupathi to Pondicherry. A4 stated that he was travelling with his mother (D.W.3) to go to the Ashramam at Pondicherry. As there was no bus to go to Melmaruvathur while coming from Vellore to Vandavasi, they stayed at Vandavasi bus stand on 20/21.1.1994, and that he was arrested on suspicion and charged for the above offence. D.Ws.1 and 5 are the reporters of "Dina Malar" and "Malai Malar" respectively, through whom the accused marked Ex.D1 dated 22.1.1994 and Ex.D.2 dated 23.1.1994 respectively with respect to the press news about the crime. D.Ws.2, 4 and 6 are the police officials, who accompanied P.W.14 during the search of the accused. D.Ws.2 and 4 were working in Vandavasi Police Station during the relevant time while D.W.6 was working in Vadavannakampadi Police Station. 6. The learned Assistant Sessions Judge, Arani, appreciating the evidence on record, convicted the accused for the offence punishable under Sections 392, 392 r/w 397, 326 and 506(ii) I.P.C. and sentenced them to undergo R.I. for 10 years with a fine of Rs.1000/- in default one year R.I. under Section 392 I.P.C; 10 years R.I. with a fine of Rs.1000/- in default one year R.I. under Section 392 r/w 397 I.P.C.; 1 0 years R.I. with a fine of Rs.1000/- in default one year R.I. under Section 326 I.P.C.; and 7 years R.I. with a fine of Rs.1000/- in default one year R.I. under Section 506(ii) I.P.C. and all the sentences to run concurrently deducting the sentence already undergone. Hence, these appeals. 7. Mr.Yeswanth Rao, learned counsel appearing for the appellant in Crl.A.No.390/95 and Mr.Rajkumar Robert, learned counsel appearing for the appellants in Crl.A.No.418/95, waded through the evidence available on record, as well as the judgment of the learned trial Judge and contend vehemently as follows: (i) The prosecution failed to explain the basis for suspecting A1 in the above crime. In the absence of any room for suspecting A1, there could not be any assumption of guilt for which A1 could be charged and tried. Consequently, the very arrest of A1, the recording of confession statement of A1, the recovery of the material objects based on the confession of A1, and the arrest of A2 to A4 are all liable to be rejected; (ii) There is no proper explanation for not citing any local witness with respect to: (a)the arrest of A1; (b)the recording of confession statement of A1 (Ex.P22); (c)the recovery of leather bag (M.O.1), rexin bag (M.O.2), identity card (M.O.6) and four pattaknives (M.Os.10 to 13) under mahazar (Ex.P.6); (d)the recovery of a white shirt (M.O.3) on the confession made by A3 (Ex.P24) under mahazar (Ex.P.11); (e)the recovery of a checked lungi (M.O.4) on the confession made by A2 (Ex.P23) under mahazar (Ex.P10); (f)the recovery of one pair of rubber sandal chappal (M.O.16) under Ex.P3; (g)the recovery of a blood stained rose colour blue checked towel (M.O.17) from the scene of occurrence under Ex.P3; (h)the recovery of trip sheet from 1.1.1994 to 20.1.1994 with respect to the bus bearing registration No.PY-01-9798 (M.O.18) under Ex.P3; (i)the recovery of a sum of Rs.1200/- (M.O.20 series) and a ticket No.793527 (M.O.21) from A1 under mahazar (Ex.P4) (j)the recovery of a sum of Rs.565/- (M.O.22 series) and a ticket No.793528 (M.O.23) from A2 under mahazar (Ex.P7); (k)the recovery of a sum of Rs.570/- (M.O.24 series) and a ticket No.793529 (M.O.25) from A3 under mahazar (Ex.P7); and (l)the recovery of a sum of Rs.565/- (M.O.26 series) and a ticket No.793530 (M.O.27) from A4 under mahazar (Ex.P7); (iii) Even though P.W.7 was the Village Administrative Officer of Illangadu Village, there is no proper explanation on behalf of the prosecution as to why he accompanied the Investigating Officer (P.W.14) till all the accused were arrested, their confession statements were recorded and the material objects were recovered; (iv) P.W.7, could not be a natural witness for all the arrests and recovery of material objects, from different places at different points of time. Therefore, in the absence of any other independent local witness, it would not be safe to convict the accused placing reliance on the evidence of P.W.7; (v) When the Conductor (P.W.1) in his earliest statement marked as Ex.P1 recorded at about 4.15 a.m. on 21.1.1994, based on which, the first information report (Ex.P.19) was registered, had stated that two persons assaulted him on his head and both arms repeatedly with long knives and snatched away the cash bag (M.O.1) which contains Rs.3000/- and also took the rexin bag (M.O.2) which c ontains a white shirt ( M.O.3) and a checked lunghi (M.O.4), and other two persons assaulted the Driver (P.W.2) on his arms with a long knife, there is no basis for framing the above charges against A1 and A2 that they assaulted the Conductor (P.W.1) and A3 and A4 assaulted the driver (P.W.2); (vi) Even though P.W.1 had stated in his statement (Ex.P.1) that he could identify the accused if they were seen in person, as recorded in the First Information Report (Ex.P.19), he could not have seen the accused for want of sufficient light at the time of occurrence. Inviting attention to the evidence of P.Ws.1 and 2, Mr.Rajkumar Robert, points out that P.W.1 shouted only after receiving three cut injuries and the Driver (P.W.2) switched on the light only after hearing the cry of the Condcutor (P.W.1). Relying on the decision of the Supreme Court in State of Uttar Pradesh vs. Jageshwar and others, reported in AIR 1983 SC 349, Mr.Rajkumar Robert contends that in the absence of any evidence that there was minimum light at the time of occurrence, it may not be safe to accept the statement of P.W.1 made in Ex.P1, that he could identify the accused if seen in person. It is further contended that the identification of the accused by the Conductor (P.W.1) and the Driver (P.W.2) could not be relied upon without any proper explanation for the delay of three months for conducting the identification test. In this regard, Mr.Rajkumar Robert, learned counsel appearing for the appellants, places reliance on the following decisions; (1)Budhsen vs. State of Uttar Pradesh, reported in AIR 1970 SC 1321; (2)Kanan vs. State of Kerala, reported in AIR 1979 SC 1127; (3)Soni vs. State of Uttar Pradesh, reported in (1982) 3 SCC 368(I); (4)State of Uttar Predesh vs. Jageshwar, reported in AIR 1983 SC 349; (5)Subash vs. State of Uttar Pradesh, reported in AIR 1987 SC 1222; (6)State of Andhra Pradesh vs. M.V.Ramana Reddy, reported in (1991) 4 SCC 536; (7)Chotey Lal vs. State of Uttar Pradesh, reported in 1994 SCC (Cri) 144; and (8)Ashish Batham vs, State of Madhya Pradesh, reported in AIR 2002 SC 3206; (vii) Even though the Conductor (P.W.1) in his statement (Ex.P.1) had stated that the accused used long knives, he had deposed before the Court that the accused used "Veecharuval". On the other hand, the Driver (P.W.2) had deposed that the accused used pattaknives, and P.Ws.3 and 4 (passengers), who were examined as eye witnesses, had deposed that the accused used "knives" for criminal intimidation. These discrepancies with respect to the description of the weapons used for the commission of the offence vitiates the case of the prosecution; (viii) While the prosecution had chosen to examine one Ameed (P.W.5), as a chance witness, who was travelling in a lorry, which came from the opposite direction, and reached the place of occurrence immediately after the crime, there is no proper explanation by the prosecution for not examining the driver of the said lorry; (ix) There is no evidence by P.W.5, who was the first person to arrive at the place of occurrence immediately after the crime, that he had seen P.Ws.3 and 4 when he reached the place of occurrence; (x) P.Ws.1 and 2 were not specifically questioned by the learned Judicial Magistrate No.I, Cheyyar, who conducted the identification parade, as to whether P.Ws.1 and 2 had any occasion to see the accused before conducting the identification parade. (xi) In the absence of any specific identification by the Conductor (P.W.1) that A1 and A2 assaulted him by pattaknives and by the Driver (P.W.2) that A3 and A4 assaulted him by using knives, it may not be safe to rely on the report of the identification parade (Ex.P14), as P.Ws.1 and 2 had also an occasion to see the photographs of the accused, which were published in "Dina Malar" (Ex.D1) and "Malai Malar" ( Ex.D10), as proved by the evidence of D.Ws.1 and 5 in the light of Exs.D1, D2, D3, D4, D5, D10 and D11. Hence, the conviction of the accused based on the report of the identification parade (Ex.P.14) is unsafe and in this regard reliance was placed on the decision of the Supreme Court in State of Andhra Pradesh vs. M.V.Ramana Reddy, reported in 1991 4 SCC 536; (xii) The evidence of the Investigating Officer (P.W.14) is totally unreliable as his evidence does not corroborate with any of the substantive witnesses except the evidence of P.W.7, whose evidence has to be discarded, as he could not be a natural witness either to the arrest or for recording the confession statement or to the recovery of material objects; (xiii) The failure to send the material objects for finger print test, and the blood stained weapons to the Serologist's test create a serious doubt which would benefit the accused; (xiv) While P.Ws.3 and 4 and D.W.3 deposed that the Investigating Officer (P.W.14) collected tickets from them, P.W.14 denies the same; and (xv) In view of the above contradictions in the evidence and serious infirmities, deficiencies and impossibilities in the prosecution case, as held by the Apex Court in Toran Singh vs. State of Madhya Pradesh, reported in AIR 2002 SCP 2807, it may not be safe to convict the accused. 8. In reply, Mr.K.V.Jayaprakash Narayanan, learned Government Advocate (Criminal Side) appearing for the respondent, submits that: (i) There is no reason to disbelieve the statement of P.W.1 recorded in Ex.P.1 that he could identify the accused if seen in person, as Ex.P.1 was recorded at about 4.15 a.m. on 21.1.1994 immediately after two hours; (ii) Even though there are discrepancies with respect to the description of weapons, viz., Pattaknife/ Veecharuval/Knives, used in the crime, as deposed by P.Ws.1, 2, 3 and 4, it is contended that such minor discrepancies would not vitiate the case of the prosecution, when their evidence corroborates with the medical evidence of P.W.11 and P.W.12, the Accident registers Exs.P15 and P16, and the Medico-legal Examination Reports Exs.P17 and P18, as well as the material objects M.Os.10 to 13; (iii) Even though the assault was initiated on P.W.1 in red light, P.Ws.3 and 4 categorically stated that immediately after the initial attack by the accused on the Conductor (P.W.1), the Driver (P.W.2) switched on the light. On the other hand, the medical evidence, referred to above, shows that P.Ws.1 and 2 sustained more cut injuries. Since the latter injuries were caused after the light was switched on, the decision of the Apex Court in STATE OF UTTAR PRADESH Vs. JAGESHWAR AND OTHERS, referred supra, is not applicable to the facts of the case; (iv) Being a highway robbery, admittedly, there was a wide coverage in the press about the alleged occurrence on the very same day immediately after the occurrence i.e. on 21.1.1994, in two dailies, namely, "Dhina Malar" dated 22.1.94 (Ex.D1) and "Malai Malar" dated 21.1.94 (Ex.D10), which have circulation in that locality. Hence, the said publication of the news by the press, by itself could not render the prosecution case weak or doubtful; (v) In view of the grave nature of the crime, which had taken place, a team of police officials headed by the Investigating Officer (P.W.1 4) was entrusted with the task of apprehending the culprits, to ensure the confidence in the minds of the general public. Therefore, neither the non-examination of D.Ws.2, 4 and 6, who accompanied P.W.14 during his investigation of the crime and search of the culprits, on the prosecution side, nor any minor contradiction or discrepancy among the evidence of P.W.14 or P.W.7, the Village Administrative Officer of Illangadu Village, who accompanied the investigation team, could not be a ground to discredit the evidence of P.Ws.7 and 14, who spoke about the arrest of A1, recording of confession statement of A1 (Ex.P.22), the recovery of the weapons (M.Os.10 to 13) used for commission of the crime, and the arrest of A2, A3 and A4. The presence of P. W.7, Village Administrative Officer of Illangadu Village throughout the search and arrest of the accused, seizure of the material objects, to be a witness for the confession statement of A1, A2 and A3 as well as a mahazar witness for recovering the material objects also could not be a ground to reject his evidence totally, as P.W.7, being Village Administrative Officer, is familiar with the locality in and around the place of occurrence. Therefore, the arrest of the A1; his confession statement; recovery of material objects M.Os.10 to 13; the arrest of A2, A3 and A4; the confession statements of A2 and A3; and the recovery of material objects from them, could not be rejected for want of local witnesses to the respective mahazars; (vi) The evidence of P.Ws.1 and 2