IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:26.02.2008 CORAM THE HONURABLE MR.JUSTICE P.R.SHIVAKUMAR Criminal Appeal No.240 of 2006 Ravi .. Appellant/Accused Vs. State rep. by Inspector of Police, Arani Town Police Station, Arani. . . Respondent/Complainant (Cr.No.695/2004 This Criminal Appeal is filed to set aside the order and judgment passed in S.C.No.36 of 2005 dated 17.08.2005 on the file of the learned Assistant Sessions Judge, Arani, Thiruvannamalai District. For Appellant :Mrs.D.Selvi For Respondent :Mr.R.Muniapparaj Government Advocate (Crl Side) JUDGMENT The accused who was prosecuted for the offences punishable under Sections 392, 397, 398, 294(B), 307, 506(ii) and 324 IPC, before the learned Assistant Sessions Judge, Arani, Thiruvannamalai District in S.C.No.36 of 2005, convicted for offences punishable under Sections 392 and 324 IPC alone, acquitted for the other offences and sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.1,000/- in default in payment of fine to undergo rigorous imprisonment for a period of three years for the offence under Section 392 IPC and sentenced to undergo three years rigorous imprisonment for offence under Section 324 IPC, has come forward with this criminal appeal challenging the conviction as well as sentence. 2. The prosecution case in brief is as follows:- PW1 Balakrishnan, is an Ex-service man residing at Vellore. On 01.07.2004, at about 11.30 a.m. PW1 along with his brother-in-law Venkatesan was having a cup of tea at Kumar Tea Stall in Arani after parking his motor cycle TVS 50 XL bearing registration no. TNZ 6239 https://hcservices.ecourts.gov.in/hcservices/ in front of the said Tea stall. While they were having their tea, the appellant/accused stealthy removed TVS 50 vehicle from the place where it had been parked. On seeing the accused leaving the said place along with the TVS 50 XL vehicle, PW1 chased him raising an alarm and intercepted him. At that juncture, the accused took up a pen knife and stabbed PW1 on the chest cursing him to die. Meanwhile PW2, Nilavazhagan, the then Sub Inspector of Police, Arani Police Station who was on rounds with other police personnels came there and tried to catch hold of the accused. In such an attempt, PW2 sustained a stab injury on the right forehand as the accused aimed a blow with the said pen knife on PW1, which was blocked by him with his right hand. However, even after receiving the said injury PW2 was able to snatch the knife from the accused with the help of the other police personnel. Thus, the accused was caught and produced before PW6, Kannan the then Inspector of Police, Arani Police Station along with the knife and the stolen property, namely the TVS 50 XL motor cycle. PW1 and his brother-in-law Venkatesan also accompanied PW2 to the Police Station where he lodged a complaint under Ex.P1. PW3- Gunasekaran, who was also a Sub Inspector of Police attached to Arani Taluk Police Station, prepared Ex.P5-First Information Report, based on the said complaint, registered a case for offences under Sections 392, 307, 294(b), 324, 427 and 506(ii) IPC. PW6-Kannan, the Inspector of Police took up the investigation of the case, visited the place of occurrence, prepared Ex.P6-Observation Mahazar and Ex.P7-rough sketch, recorded the statement of the witnesses and recovered MO1-pen knife, MO2- TVS 50 XL and MO3-Banian. The injured witnesses, namely PW1 and PW2 were sent to the hospital for treatment. They were examined and treated by PW5- Dr.Lakshmanana, who issued Ex.P3 and Ex.P4 accident registers. The confession statement of the accused was also recorded in the presence of PW4-Palani and one Sekar. As PW6 was transferred before ever he could file the final report, his successor completed the investigation and submitted a final report before the learned Judicial Magistrate, Arani alleging that the appellant/accused had committed offences punishable under Sections 392, 397, 398, 307, 294(b), 324 and 506(ii) IPC. 3. The learned Judicial Magistrate, Arani after supplying the copies of the case papers to the appellant under Section 207 Cr.P.C., found that the offences under Sections 294(b) and 307 IPC allegedly committed by the appellant/accused were exclusively triable by the Court of Session and hence committed the case of trial to the Principal Sessions Judge, Thiruvannamalai District. The said Court took over the case as S.C.No.36 of 2005 and made over the same to the Assistant Sessions Judge, Arani for trial and disposal. The learned Assistant Sessions Judge, Arani framed necessary charges and conducted trial after recording the plea of the appellant/accused, who pleaded not guilty. Six witnesses were examined as PW1 to PW6, seven documents were marked as Ex.P1 to Ex.P7 and three material objects were marked as MO1 to MO3 on the side of the prosecution. After the prosecution evidence was over, the appellant/accused was https://hcservices.ecourts.gov.in/hcservices/ examined under Section 313 Cr.P.C. regarding the incriminating materials appearing in the evidence adduced on the side of the prosecution. The accused denied such evidence as false and once again reiterated his plea that he was innocent. No witness was examined and no document was marked on the side of the appellant/accused. 4. The learned Assistant Sessions Judge, on appreciation of evidence in the light of the arguments advanced on either side, came to the conclusion that the prosecution was able to prove the charges under Sections 392 and 324 IPC alone beyond reasonable doubt and that all other charges were not proved beyond reasonable doubt. The learned Assistant Sessions Judge, acquitted the appellant/accused for the charges under Sections 397, 398, 307, 294(B) and 506(ii) IPC and convicted him for the offences punishable under Sections 392 and 324 IPC. For the offence under Section 392 IPC the accused was sentenced to undergo 10 years rigorous imprisonment and a fine of Rs.1,000/- was imposed with a default sentence of three years rigorous imprisonment. For the offence under Section 324 IPC a sentence of 3 years rigorous imprisonment was recorded and no fine was imposed for the said offence. As against the said conviction and sentence, the appellant/accused has preferred this appeal. 5. Arguing on behalf of the appellant, Mrs.D.Selvi, the learned legal aid counsel for the appellant submitted that the judgment of the trial Court was against law; that the trial Court had failed to note the absence of proof of the ingredients of the offences for which, the appellant/accused was convicted; that there were material contradictions between the evidence of prosecution witnesses, especially PW1 and PW2 regarding the place of occurrence as well as other aspects; that the learned Assistant Sessions Judge had not properly appreciated the fact that the observation mahazar as well as rough sketch prepared by the investigation officer did not correctly indicate the place/places of occurrence; that the learned Assistant Sessions Judge should have noticed the fact that there was a material contradiction regarding the prosecution version as to whether the accused was riding the TVS 50 XL motor vehicle or simply pulling the same when he was intercepted by PW1 and PW2; that the learned Assistant Sessions Judge failed to notice that no independent witness except PW1(informant) was examined regarding the occurrence and that the learned Assistant Sessions Judge having come to the conclusion that the charges for the offences punishable under Sections 397, 398, 307, 294(b) and 506(ii) IPC were not proved beyond reasonable doubt, would have acquitted him of the other offences under Sections 392 and 324 IPC also if he had properly appreciated the evidence adduced on the side of the prosecution. The learned counsel for the appellant also submitted that viewed from any point, the conviction of the accused for the offences under Sections 392 and 324 IPC was discrepant and erroneous capable of being corrected by this Court in exercise of its appellate powers and that this Court should hold him https://hcservices.ecourts.gov.in/hcservices/ not guilty of the said offences also and set aside the conviction and acquit him of the said charges. 6. Per contra, Mr.R.Muniyapparaj, learned Government Advocate (Criminal Side) contended that though there were some contradictions as pointed out by the learned counsel for the appellant and those contradictions were not material but were trivial in nature which would not in any way affect the prosecution case; that the learned trial Judge, on a proper appreciation of evidence came to the correct conclusion and punished the accused for the offences under Sections 392 and 324 IPC and that the well considered judgment of the trial Court did not deserve any interference in the appeal. 7. This Court gave its anxious consideration to the submissions made on either side. The materials available on record were also perused. 8. The case of the prosecution is that on 01.07.2004 at about 11.30 a.m. the accused stole the vehicle namely, TVS 50 XL bearing registration No.6239 belonging to PW1 from a place in front of Kumar Tea Stall at Arani, Vellore Road in Arani Town and while he was proceeding with the said stolen vehicle, he was intercepted by PW1 and PW2, whereupon, in an attempt to escape with the stolen vehicle, the appellant/accused used force by stabbing PW1 and PW2 with the pen knife. According to the prosecution version, since the appellant/accused inflicted injuries on the chest of PW1 and on the right hand of PW2 using the pen knife in an attempt to escape with the stolen vehicle he was guilty of the offences of robbery punishable under Section 392 IPC and voluntarily causing hurt using a dangerous weapon punishable under Section 324 IPC. Regarding other offences, the trial Court itself found him not guilty and no appeal has been prepared against the same by the State. Hence, it is unnecessary to deal with the same in this appeal. 9. The learned counsel for the appellant has submitted that the case against the accused has been foisted by the police with some ulterior motive which would be exhibited by the material contradictions found in the evidence of the prosecution. The discrepancies and material contradictions pointed out by the learned counsel for the appellant are as follows:- "Though the occurrence was said to be witnessed by several others, no independent witness was examined on the side of the prosecution to speak about the occurrence. Venkatesan, the brother-in-law of PW1, who is said to have accompanied him, was also not examined on the side of the prosecution. The place of occurrence is doubtful, in so far as there is a contradiction between PW1 and PW2 in this regard." https://hcservices.ecourts.gov.in/hcservices/ 10. Let us now deal with the discrepancies and contradictions pointed out by the learned counsel for the appellant. It is true that no independent witness was examined on the side of the prosecution and that the above said Venkatesan was also not examined. Between the evidence of PW1 and PW2 there are material contradictions. Even as per the testimony of PW1, the accused was simply pulling the TVS 50 motor vehicle when he was chased and intercepted by him as well as PW2. At the same time, it is the evidence of PW2 that the appellant/accused was riding the said vehicle at a high speed when he intercepted him. The place of occurrence constituting the alleged offences punishable under Sections 392 and 324 IPC, is admittedly not situated in front of Kumar Tea Stall. According to PW1, he did not see the appellant/accused removing the motor cycle from the place where it had been parked. But, he could see him only while he was pulling the motor cycle at a distance away from the tea stall, that too on the opposite side of the road. It is the further evidence of PW1 that he ran, chased and intercepted the accused at a place which has not been shown either in the observation mahazar marked as Ex.P6 or in the rough sketch marked as Ex.P7 and that the acts of the accused constituting the offences for which he was convicted by the trial Court were committed only in that place. Curiously, the said place has not been noted either in the observation mahazar or in the rough sketch. It is not the case of the prosecution that the entire occurrence took place at one and the same place. On the other hand, according to the prosecution version the act of taking the motor vehicle alone took place at the place marked as 'SOC' in the observation mahazar and rough sketch. All other acts constituting the offence for which the accused was prosecuted took place at some other place near Renugambal Petrol Bunk. But the Renugambal Petrol Bunk is not found in the rough sketch or in the observation mahazar. While PW3 referred to Renugaambal petrol Bunk, there is nothing in the evidence of PW1 that the occurrence took place near Renugambal Petrol Bunk. PW2, injured Sub-Inspector of Police would state that the occurrence took place near Renugambal Bus Stand. The said discrepancy according to the learned counsel for the appellant will go to the root of the prosecution case to suggest that the case is nothing but a foisted one with an ulterior motive. 11. The learned counsel for the appellant has also pointed out the fact that PW4, the alleged witness for the recovery of other articles based on the confession statement of the accused will not be helpful to the prosecution as no information furnished by the accused has led to the recovery of any material object or the discovery of any new fact concerned in this case. The knife, motor cycle and the Banian (MO1 to MO3) were admittedly handed over by the prosecution witness and recovered under Form 95. PW4 has also clearly admitted that he was not a witness for the seizure of MO2-TVS 50 XL in connection with this case. https://hcservices.ecourts.gov.in/hcservices/ 12. All the above said discrepancies pointed out by the learned counsel for the appellant individually may appear to be either insignificant or trivial. But the cumulative effect of all the above said discrepancies and contradictions will no doubt give raise to a serious doubt regarding the prosecution version. It creates a reasonable suspicion as to whether the occurrence as pleaded by the prosecution could have ever taken place. Therefore, this Court comes to the conclusion that there is substance in the submission made by the learned counsel for the appellant and that the said arguments advanced on behalf of the appellant has got to be countenanced. The learned Assistant Sessions Judge, seems to have failed to consider the above said discrepancies found in the evidence of the prosecution which, no doubt, go to the root of the prosecution case itself and shakes the very reliability of the prosecution version. All the above said discrepancies create a reasonable suspicion that the case could have been foisted by the police with an ulterior motive after the appellant/accused had been apprehended by the police in respect of some other offences. The said suspicion gets strengthened by the admitted fact that several other cases of similar nature have been registered against the appellant/accused. Being the appellate Court, on a thorough re-appreciation of evidence, this Court comes to the conclusion that the prosecution has failed to prove the charges under Sections 392 and 324 IPC also beyond reasonable doubt; that there are reasonable suspicions in respect of the said charges also the benefit of which would be given to the appellant/accused and that the appellant/accused is entitled to his liberty. 13. For all the reasons stated above, this Court comes to the conclusion that the conviction recorded by the trial Court for the offences punishable under Sections 392 and 324 IPC are infirm and discrepant which has got to be interfered with and set aside by this Court in this appeal. 14. In the result, this criminal appeal is allowed and the conviction recorded by the trial Court for the offences punishable under Sections 324 and 392 IPC holding the appellant/accused guilty of the said offence is hereby set aside and the appellant/accused is acquitted of all the offences with which he stood charged. The appellant/accused is directed to be set at liberty if his continued custody is not required in any other case. Fine amount collected from the accused is directed to be refunded. Before parting with the case, this Court place on record an appreciation for the sincere efforts made by the learned counsel for the appellant appointed by the Legal Services Authority to take up the case of the appellant. Mrs.D.Selvi, learned Legal Aid Counsel appearing on behalf of the https://hcservices.ecourts.gov.in/hcservices/ appellant is entitled to the remuneration as per the table of fees applicable to the legal aid counsel. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar jikr To 1. The Legal Aid Services Authority, High Court, Madras. 2. The Assistant Sessions Judge, Court of Sessions of Arni, Division at Tiruvannamalai. 3. -do- thro The Principal Sessions Judge, Tiruvannamalai. 4. The Superintendent, Central Prison, Vellore. 5. The District Collector, Tiruvannamalai. 6. The Director General of Police, Chennai-4. 7. The Public Prosecutor, High Court, Madras. 8. The Inspector of Police, Arani Town Police Station, Arani. +2 ccs To Ms.D.Selvi, Advocate, SR.10609 & 10324. Criminal Appeal No.240 of 2006 sp [co] gkg/19.3 https://hcservices.ecourts.gov.in/hcservices/