IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25/03/2004 CORAM THE HON'BLE MRS. JUSTICE R.BANUMATHI CRL.APPEAL No.18 of 1998 and CRL.APPEAL No. 350 of 1998 Criminal Appeal No.18 of 1998: Suresh ... Appellant Accused No.2 -Vs- State by Inspector of Police, Coonoor Town Police Station, Coonoor, Nilgiris District. ... Respondent. Criminal Appeal No.350 of 1998: 1. Vijai ... Appellants / 2. Manickam Accused 3 & 4 Vs. State by Inspector of Police, Coonoor Town Police Station, Coonoor, Nilgiris District. ... Respondent. These Criminal Appeals arise out of the judgment dated 01.10.1997 made in S.C.No.10 of 1997 on the file of Assistant Sessions Judge, Udagamandalam. !For appellants : Mr. B.Kumarasamy, in both appeals. ^For respondent : Mr. A.N.Thambidurai, Government Advocate. (Crl. Side) (in both appeals) :COMMON JUDGMENT Criminal Appeal No.18 of 1998: Second Accused in S.C.No.10 of 1997 on the file of Assistant Sessions Judge, Udhagamandalam is the Appellant in this appeal. 2. Criminal Appeal No. 350 of 1998: Accused Nos.3 and 4 in S.C.No.10 of 1997 on the file of Assistant Sessions Judge, Udhagamandalam are the Appellants in this appeal. 3. By the Judgment dated 01.10.1997 in S.C.No.10 of 1997, the Appellants and first Accused Chelladurai were convicted by the Trial Court for various offences and sentenced to undergo Rigorous Imprisonment. 4. Both the appeals arise out of common Judgment; common points for determination are involved in both the appeals. Hence, both the appeals were heard together and disposed of by this common Judgment. 5. Case of the prosecution could briefly be stated thus:- P.W.1 - Ponvel is the Assistant Manager in Glendale Estate, Runnymade Division, Coonoor at the time of occurrence. His wife - P.W.6 ( Sujatha Ponvel) and children went to Madras. On the night of 13.04.1996, P. W.1 was alone in the Estate Bungalow. P.W.7 (Ganesan) - Watchman was outside the Bungalow. 6. Occurrence. On 13/14.04.1996 - 1.30 a.m., five persons came to the Bungalow and three of them (A.2, A.3 and A.4) were armed with ' Kattai'. A.1 and Deceased Accused Perumal was armed with Aruval. Having gained entry into the Bungalow, they beat P.W.7 - Watchman and tied his hands asking for his 'Mudalali'. P.W.7 called "Jiu. Jiu". Upon hearing the noise, P.W.1 - Ponvel put on the switches, opened the door and came out. P.Ws.1 and 7 were taken inside the Reception Room by the Accused and confined there. Deceased Accused Perumal cut P. W.1 with Aruval. While resisting the attack, P.W.1 - Ponvel sustained injuries on his left index finger. A.2 and A.3 beat P.W.1 with ' Kattai' on his head and shoulder. By pleading not to do anything, P.W.1 handed over Bureau Key. When he tried to escape, A.4 - Manickam, who was keeping watch on the Bath Room side, beat P.W.1 with 'Kattai'. The Accused searched the Bungalow and robbed the jewels and money. They also took P.W.7 - Watchman to search for jewels. Accused had also taken the cash of Rs.9,000/-, V.C.R., Tape-recorder, etc. After robbing the articles, the Accused escaped in a Maruti Van bearing Registration No.TN 41 A 8668 kept in the Bungalow. 7. Complaint and Registration of the Case. Injured P.W.1 Ponvel took his motor cycle and went to Coonoor Police Station. On the early morning - 2.00 a.m. on 14.04.1996, P.W.1 lodged Ex.P.1 - Complaint before P.W.16 - Head Constable. On the basis of Ex.P.1 - Complaint, P.W.16 registered a case in Crime No.240 of 1996 under Sec.394 I.P.C. under Ex.P.27 - First Information Report. Injured P.Ws.1 and 7 were sent to Coonoor Government Hospital for treatment. 8. Investigation. P.W.20 - Inspector of Police had taken up the investigation. He inspected the Runnymade Division Estate in the presence of P.W.9 - Murugan and one Prabhakaran. Ex.P.16 - Observation Mahazar and Ex.P.34 - Rough Plan were prepared on the scene of occurrence. M.O.39 series - Photographs were taken by P.W.13 ( Thangaraj) - Photographer. 9. Interception of Maruti Van and arrest of the Accused. On the night of 13.04.1996, P.W.17 - Sub Inspector of Police and his party, Karamadai were on regular patrolling duty in the National Highways. On 14.04.1996 - 3.30 a.m., they received information from Coimbatore Control Room about the Maruti Van, which sped away with robbed articles and the dacoities. Upon receipt of such information, P.W.17 - S.I. of Police thoroughly checked the vehicles. 10. At about 4.00 a.m., they spotted M.O.1 - Maruti Van which did not stop for signal by the Police party. P.W.17 and his party chased the Maruti Van to some distance. In North Kovai over Bridge, the Maruti Van hit against the Bridge and stopped. Deceased Accused Perumal jumped from the Bridge. A.4 - Manickam had run away. At about 4.3 0 a.m., A.1 to A.3 were arrested. From the Maruti Van, stolen articles, jewels and cash and also weapons - M.Os.1, 8 to 29 and 41 were seized under Ex.P.28 - Seizure Mahazar. P.W.17 submitted his Special Report Ex.P.29 to P.W.18 - Inspector of Police, Traffic Wing, Coimbatore. 11. Case in Crime No.307 of 1996. On the basis of Ex.P.29 - Special Report, P.W.18 - Inspector of Police, Traffic Wing, Coimbatore registered a case in Crime No.307 of 1996 under Ss.279, 337 and 338 I.P. C. r/w 119 and 117 of Motor Vehicles Act and under Sec.174 Crl.P.C. Ex.P.30 is the First Information Report in Crime No.307 of 1996. The arrested Accused were found with injuries. Hence, they were sent to Coimbatore Medical College Hospital, where they were treated for their injuries. Exs.P.14 and P.15 are the Accident Registers of A.2 and A.3. Ex.P.7 is the Wound Certificate of first Accused Chelladurai. A.4 - Manickam was arrested on 09.06.1996. 12. Identification Parade. Pursuant to requisition from Inspector of Police, P.W.2 - Judicial Magistrate held the Identification Parade in Coimbatore Central Prison on 10.06.1996 for identification of A.2 and A.3 by P.W.1 - Ponvel. In the Identification Parade, P.W.1 has correctly identified A.2 and A.3. A.4 - Manickam was arrested on 09.06.1996. After his arrest, on 03.07.1996, regarding A.4 another Identification Parade was held in Coimbatore Sub Jail. P.Ws.1 and 7 have correctly identified A.4. At that time, P.W.7 had also identified A.2 and A.3. Since A.1 - Chelladurai was injured, no Identification Parade was held regarding him. 13. Death of Accused Perumal. Case in Crime No.307 of 1996 was registered under Ss.279, 337 and 338 I.P.C. R/w 119 and 177 of Motor Vehicles Act and under Sec.174 Crl.P.C. On 17.04.1996, First Information Report was sent to the higher officials and to the Court. Escaped Accused Perumal was found by P.W.17 with severe bleeding injuries. He was taken to Coimbatore Medical College Hospital where he was declared dead. Thereafter, P.W.18 - Inspector of Police, Traffic Wing had sent request to Revenue Divisional Officer to conduct inquest on the body of Perumal. Inquest was held on the body of deceased Accused Perumal. After inquest, P.W.5 - Dr.Shanmughavelusamy had conducted Post-mortem on the body of deceased Accused Perumal. Noting eleven external injuries, P.W.5 issued Ex.P.11 - Post-mortem Certificate. 14. Seized Material Objects were sent for chemical analysis. The chance print lifted from the scene of occurrence tallied with the finger print of deceased Accused Perumal. Upon completion of investigation, charge sheet was filed against the Accused under Ss.45 0, 323, 39 5 and 397 I.P.C. R/w 395 I.P.C. 15. To substantiate the charges against the Accused, in the trial Court, prosecution has examined P.Ws.1 to 20. Exs.P.1 to P.41 were marked. M.Os.1 to 41 were produced. Accused were questioned under Sec.313 Crl.P.C. about the incriminating evidence and circumstance. The Accused had denied all of them stating that a false case is foisted against them. According to the Accused, A.2 and A.3 were taken from under the Railway Bridge and implicated in the false case. According to A.4, he was taken from Aarthi Hotel in Triplicane, Madras and a false case is foisted against him. 16. Upon consideration of the evidence, the learned Assistant Judge found that the involvement of the Accused is well proved by the evidence of P.Ws.1 and 7, whose evidence is strengthened by the earlier identification of the Accused in the Identification Parade. For recording the finding of guilt, the trial Court mainly placed reliance upon the (i) evidence of P.Ws.1 and 7 and that they were injured; ( ii) recovery of material objects along with Maruti Van - M.O.1; (iii) identification of the Accused by P.Ws.1 and 7 in the earlier Identification Parade. 17. On the basis of the above findings, the trial Court found the Accused guilty under various offences and convicted them as noted below:- Charge (1) Gist of charge (2) Against which Accused (3) Finding (4) Sentence. (5) 1 Under Sec.450 IPC House Trespass to commit the offence punishable with imprisonment for life. A1 to A.4 Found guilty under Sec.450 IPC. A.1 to A.4 sentenced to undergo Rigorous Imprisonment for five years each. 2 Under Sec.323 IPC- Causing simple injury to P.W.7 - Ganesan. A.1, to A.3 A.1 found not guilty under sec.323 IPC. A.2 and A.3 found guilty under Sec.323 IPC. A.2 and A.3 Sentenced to undergo Rigorous Imprisonment for one year each. 3 Under Sec.326 IPC For causing grievous injury to P.W.1 - Ponvel with deadly weapon A.1 to A.3 A.1 found guilty. A.2 and A.3 found not guilty. A.1 sentenced to undergo Rigorous Imprisonment for five years. 4 Under Sec.395 IPC Committing dacoity of jewels and cash and Maruti Van. A. 1 to A.4 A.1 to A.4 found guilty. A.1 to A.4 sentenced to undergo Rigorous Imprisonment for seven years each. 1) (2) (3) (4) (5) 5 Under Sec.397 r/w 395 - Causing grievous injury to P.W.1 - Ponvel while committing dacoity. A. 1 to A.4 A.1 to A.4 found guilty. A.1 to A.4 sentenced to undergo Rigorous Imprisonment for nine years for the conviction under Sec.397 IPC. For conviction under Sec.395 IPC, no separate sentence imposed. 18. Seriously attacking the prosecution case and raising several contentions of lapses in investigation, the learned counsel for the Accused interalia raised the following contentions:- (i) Evidence of P.Ws.1 and 7 suffers from improvements and their identification of the Accused cannot be relied upon and their evidence is wanting on the light aspect in the scene of occurrence; (ii) Lapses in investigation that there was no investigation of V.C.R., Gold jewels and on the death of Perumal - deceased Accused; (iii)Inordinate delay in holding the Identification Parade; When A.2 and A.3 were apprehended even on the date of occurrence on 14.04 .1996, the delay in holding the Identification Parade on 10.06.1996 and 03.07.1996 seriously undermines the prosecution case; (iv) A.2 to A.4 have clearly stated as to how they happened to be in Police custody and the same was not properly appreciated by the trial Court. Conviction is assailed on the ground that the dacoities are stated to be only four in number and hence, the ingredients of Sec.395 I.P. C. is not made out. Taking me through the evidence and Ex.P.1 - Complaint and relying upon number of decisions, learned counsel for Appellants / Accused 2 to 4 contended that there is no proper appreciation of evidence by the trial Court and that the conviction cannot be sustained. 19. Countering the arguments of the Appellants / Accused 2 to 4, the learned Government Advocate submitted that the overt act of the dacoities is well proved by the evidence of P.Ws.1 and 7, which is further strengthened by the earlier Identification Parade of the Accused. It is further submitted that the evidence of P.Ws.1 and 7 being victims of dacoity, is confirmed by the injuries sustained by them. Laying emphasis upon the fact that Accused and deceased Accused Perumal were caught red handed while they attempted to escape in the Maruti Van, much reliance is placed upon recovery of the Maruti Van and robbed articles from the Accused. The learned Government Advocate further submitted that the overwhelming evidence adduced by the prosecution is unassailable and that the finding of guilt and conviction is to be maintained. 20. Upon careful reassessment of the evidence and materials on record, Judgment of the trial Court and submissions of both sides, the following common points arise for consideration in these appeals:- (i) Whether identification of the Accused and recovery of incriminating looted properties along with Maruti Van and the weapons used are proved by the prosecution ? (ii) Whether the Accused are right in assailing the conviction on the basis of averments in Ex.P.1 that there were only four persons involved in the dacoity ? (iii) Whether the proved circumstances establish the guilt of the Accused 1 to 4 and deceased Accused Perumal ? (iv) Whether the conviction of the Appellants / Accused 2 to 4 under Sec.395 I.P.C. and various other offences warrants any interference ? 21. To prove the dacoity in Glendale Estate, Runnymade Division, prosecution relies upon the following direct and circumstantial evidence:- (i) Direct evidence of P.Ws.1 and 7, who are injured and also victims of dacoity; (ii) That A.1 to A.3 and deceased Perumal were caught red-handed; recovery of looted properties and Maruti Van bearing Registration No.TN 41-A-8668 (M.O.1) from the Accused; (iii)Identification of A.2 to A.4 by P.Ws.1 and 7 in the Identification Parade held on 10.06.1996 and 03.07.1996. 22. On the night of 13/14.04.1996, P.W.1 - Ponvel was inside the Bungalow. P.W.7 (Ganesan) - Watchman was outside. P.W.6 (Sujatha Ponvel) - wife of P.W.1 and their Children had been to Madras. In the mid-night at about 1.30 a.m., A.1 to A.4 and deceased Accused Perumal, armed with weapons, gained entry into Runnymade Estate. Firstly, they tied the hands of P.W.7. When P.W.7 raised alarm calling Jiu. Jiu. P.W.1 switched on the lights and came out of the Bungalow. At that time, deceased Accused Perumal cut P.W.1 with Aruval. When P.W.1 prevented the same, he sustained incised wound on the right palm region. A.2 and A.3 beat P.W.1 with 'Kattai' on his head and shoulder. Pleading not to do anything, P.W.1 handed over Bureau Key to the Accused. When P.W.1 tried to escape through bathroom, A.4 - Manickam beat him with 'Kattai'. In the Bungalow, Bureau and suitcases were opened. A.1 was searching for jewels and money. Other Accused joined him and the whole Bungalow was looted. Accused have robbed cash of Rs.9 ,000/-, jewels, VCR and Philips Tape-recorder. Threatening P.W.1, A.1 to A.4 and deceased Perumal had taken away M.O.1 - Maruti Van and escaped. Narration of occurrence and about the looted articles, evidence of P.Ws.1 and 7 is spontaneous and cogent. Evidence of P. Ws.1 and 7 is to be tested for its corroboration about the factum of crime and identification of the Accused as dacoities. 23. Force and violence was used in the commission of dacoity. That blood was splattered all over the Bungalow is the tell-tale circumstance that violence was used. The Accused were armed with dangerous weapons and were reacting violently. When there was resistance from P.Ws.1 and 7, the Accused had voluntarily caused injuries to P.Ws.1 and 7. The blood stains found all over the Bungalow amply corroborates the version of P.Ws.1 and 7 on the factum of dacoity. 24. Factum of dacoity in the Runnymade Estate Bungalow is further corroborated by the objective finding during investigation. For committing dacoity and robbery of articles, force and violence was used, which is manifested by more than one aspect, which was noted during the objective findings. Blood was found splattered in the whole Bungalow. The whole bungalow was looted. Telephone line was disconnected. While searching for jewels, cash and other articles, Bureau and Suitcases were opened. That the whole Bungalow was looted is clearly seen from Ex.P.16 - Observation Mahazar. We may refer to the meddling noted during inspection ... "... nlgps; kPJ Rtw;wpypUe;J vjphpfshy; vLf;fg;gl;l Rth; fofhuk; kw;Wk; rhkhd;fs; fiyf;fg;gl;l epiyapy; cs;sJ ... " "... ku gPnuhtpy; ,Ue;j N:l;nf!;fs;. ku mykhhp jpwf;fg;gl;L fiye;J fhzg;gLfpwJ/ ... " This is further corroborated by M.O.39 series - Photographs. 25. That P.Ws.1 and 7 are victims of dacoity is corroborated by the medical evidence. The Accused caused injuries to P.W.1 - Ponvel when he tried to show protest. After the registration of First Information Report (Ex.P.27), P.W.1 was sent to Coonoor Government Hospital with Police Memo. P.W.8 - Dr.Ramachandran had examined P.W.1 at 2.30 a.m. on 14.04.1996 and found eight external injuries and issued Ex. P.13 - Accident Register. From Ex.P.13, it is seen that P.W.1 sustained ... Incised Wounds } On the right thumb, in the web space between left thumb and left index finger, on the centre of scalp and between right ring and mid fingers. Contusions } On back of head and on back of chest Lacerated Wound } On the left Parietal region of scalp Abrasion } On left ear. 26. Likewise, P.W.7 (Ganesan) - Watchman sustained incised wound on the centre of his scalp and abrasion on right index finger. Ex.P.14 is the Accident Register of P.W.7. While they were treated by the P.W.8 - Dr.Ramachandran, both P.Ws.1 and 7 have stated that they have sustained injuries due to assault with sticks and knives by four unknown persons at about 1.30 a.m. on 14.04.1996 at Assistant Manager's Bungalow. 27. Thus, hurt was caused to P.Ws.1 and 7 by the voluntary act of the Accused. From the evidence of P.Ws.1 and 7, it is clear that the Accused have wielded the weapon and caused injuries to P.Ws.1 and 7, when they tried to resist them. From Ex.P.16 - Observation Mahazar, it is seen that blood was splattered in Reception Room and other rooms of the Bungalow. We may usefully refer to those objective findings as to the presence of blood noted during inspection of the scene of occurrence, which is as under:- " ... tuhe;jhtpypUe;J tuntw;g[ miwf;F bry;Yk; fjtpd; ,lJ gf;fk; Rtw;wpy; ,uj;jf;fiw fhzg;gLfpwJ ... " " ... tuntw;g[ miwapy; Vuhskhd ,uj;jf; fiwfs; fhzg;gLfpwJ ..." Thus, it is well proved that P.Ws.1 and 7 were victims of dacoity, who sustained bleeding injuries. Further it is also well proved that the miscreants have voluntarily caused injuries to P.Ws.1 and 7 when they tried to protest offering resistance. 28. Corroboration on the identification of the Accused. In cases of dacoity, identification of the Accused is of primary consideration. While in the witness box, P.Ws.1 and 7 have identified the Accused 1 to 4 as the dacoities. P.Ws.1 and 7 have identified A.1 - Chelladurai as armed with Aruval; A.2 - Suresh and A.3 - Vijay armed with 'Kattai'. A.4 - Manickam was identified as the one armed with 'Kattai' and standing near the bathroom. Deceased Accused Perumal was identified as the one armed with Aruval. The main question for consideration is whether identification of the Accused 1 to 4 by P. Ws.1 and 7 is reliable and whether it can form the basis for conviction ? 29. The dacoities have gone through the whole Bungalow searching for jewels, cash and other articles. Since they have been searching the whole Bungalow, the occurrence must have persisted for some time. Lights were burning inside the Bungalow. P.Ws.1 and 7 had ample time to notice the features of the dacoities. Having noted their features, in Ex.P.1 - Complaint, P.W.1 - Ponvel had given the following details of identification of the dacoities:- " ... v';fisj; jhf;fpa 4 ngh;fSf;F Rkhh; 18 tajpypUe;J 25 tajpw;F cl;gl;lth;fs;/ ehY ngUk; ngz;l; rh;l; nghl;L ,Ue;jhh;fs;/ jkpHpy; ngrpdhh;fs; ... ". Whether the above particulars regarding age, way of dressing and the language, which the Accused spoke can be sufficient features of identification ? 30. Further question arises, judged on the facts and circumstances, whether on the evidence of P.Ws.1 and 7 identification of the Accused could be relied upon ? Identification of the Accused by P. Ws.1 and 7 is seriously assailed on the ground of paucity of light. The learned counsel for the Appellants / A.2 to A.4 submitted that there is no evidence as to the source of light in the Bungalow and in the absence of evidence on the light, it would be dangerous to base the conviction. It is further submitted that unless there is definite evidence on the source of light, no conviction could be based upon the evidence of P.Ws.1 and 7. On this point, reliance is placed upon 200 0 (2) Crimes 490 - Suresh & Others v. State of U.P. In the said case, before the Allahabad High Court, there was no evidence as to the arrangement of light. But, the instant case before us stands on different factual aspect. The light aspect in the instant case is made clear from the evidence on P.W.1 - Ponvel, where he has stated vdJ thl;r; nkd; Jiu. Jiu vd;W Tg;gpLk; rj;jk; nfl;L tpsf;Ffis nghl;L fjit jpwe;J Kd;gf;fk; te;njd; ... The occurrence was inside the Bungalow and the entire Bungalow was searched. Inside the Bungalow, there must have been sufficient illumination. Further, the Accused, who were on search for the articles, must have also put on the lights with the help of P.W.7 (Ganesan) - Watchman, whom they have taken along with them to search the Bungalow. Non-mention of light aspect in Ex.P.1 - Complaint would not in any way lead to the conclusion that there was no light at the time of occurrence. 31. Like any other case, in the instant case the Accused were not arrested at a later date. The Accused were caught red-handed whilst they escaped in M.O.1 - Maruti Van. A.1 - Chelladurai drove the Maruti Van. Other Accused were seated inside the Van. They did not stop the vehicle for the signal by P.W.17 - S.I. of Police, who was keeping watch for the Maruti Van bearing Registration No.TN 41 A 8668 on information from Coimbatore Control Room. From the evidence of P.W.1 7 - S.I. of Police and Ex.P.29 - Special Report, it is made clear that the Maruti Van was chased to some distance and the same hit against Vadakovai Bridge and then only stopped. P.W.17 - S.I. of Police had spoken about the two Accused viz., A.4 - Manickam and deceased Perumal. Deceased accused Perumal escapped from that place. Rest of the Accused viz., A.1 to A.3 were arrested at 4.30 a.m. on the same day. When being interrogated, A.2 - Suresh had voluntarily given a confession statement. On the basis of his Confession Statement, looted properties and weapons - M.Os.8 to 29 and M.O.41 were seized from M. O.1 - Maruti Van. P.Ws.1 and 6 had identified those articles, recovered from the Maruti Van as the stolen articles. Arrest of the Accused immediately after the occurrence, recovery of looted articles and weapons along with the Maruti Van are the strong pieces of evidence against the Accused. 32. That Accused 1 to 3 were arrested on 14.04.1996 - 4.30 a.m. in the National Highways by P.W.17 - S.I. of Police is amply corroborated by the events that followed, which could be detailed as follows:- (i) About the arrest of the Accused and seizure of the articles and sending the Accused to the hospital; P.W.17 - S.I. of Police submitted Ex.P.29 - Special Report to P.W.18 - Inspector of Police, Traffic Wing, Coimbatore. On the basis of Ex.P.29, a case was registered in Crime No.307 of 1996 under Ss.279, 337, 338 I.P.C. r/w Sec. 119, 177 Motor Vehicles Act and under Sec.17 4 Crl.P.C. (ii) Injured Accused 1 to 3 were immediately sent to the hospital for treatment; (iii)Recovery of blood stained clothes from the Accused. 33. We may further elaborate on the (ii) and (iii) aspects. During the chase and due to the hit against the Bridge, A.1 to A.3 sustained injuries. P.W.17 - S.I. of Police had taken A.1 to A.3 to Coimbatore Medical College Hospital. P.W.4 - Dr.Chidambara Jothi treated them. A.1 - Chellaudrai, who was on wheels, sustained fracture injuries on his right Femur. Following injuries were noted on the person of the Accused:- Accused Injuries 1st accused ---------- Ex.P.7 Two abrasions on lateral right thigh - deformed. Fracture shaft of