Bail Slip that the petitioners namely 1. Prakash 2. Kalidas @ Kaliappan was directed to be released on bail by the order of this court dated 20.7.2007 and made in Crl.M.P.No.10024/05 in Crl.App.1452/04 and dated 17.9.2007 and made in Crl.M.P.481/2007 in Crl.App. 181/05. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.03.2011 CORAM THE HONOURABLE MR.JUSTICE S. NAGAMUTHU Crl.A.Nos.1452 of 2004 and Crl.A.No.181 of 2005 Prakash .. . Appellant in Crl.A.1452/04/ accused Kalidas @ Kaliappan ... Appellant in Crl.A.181/05 VS State rep by The Inspector of Police, Anupar palayam Police Station, Tiiruppur, Coimbatore District ... Respondent in both appeals/ Complainant PRAYER: Appeals filed under Section 374 Cr.P.C against the judgment dated 10.08.2004 in S.C.No.130 of 2004 on the file of the Additional District and Sessions Judge (FTC V) Coimbatore at Tiruppur. . . . https://hcservices.ecourts.gov.in/hcservices/ For Appellant in both appeals : Mr.P.M.Duraiswamy For Respondent in both appeals : Mr.R.Muniyappa Raj Govt.Advocate (Crl.Side) C O M M O N J U D G M E N T The appellant in Criminal Appeal No. 181/05 is the first accused and the appellant in Criminal Appeal No. 1452/2004 is the second accused in S.C.No.130 of 2004 on the file of Additional District and Sessions Judge, F.T.C.(V), Coimbatore at Tiruppur. They stand convicted for the offence under Section 397 I.P.C and sentenced to undergo R.I for nine years. Challenging the same, the accused are before this Court with these two appeals. 2. The facts of the prosecution case in brief are as follows: i) P.W.1 was employed under P.W.3 as a taxi driver. P.W.3 owned a car bearing registration No.TNI 2838. On 23.09.2001, P.W.1 was in charge of the car and he had parked the car in the taxi stand at Tiruppur. At about 9.00 p.m, P.W.2, a driver in a different taxi came to him and informed that two persons had come to engage a taxi to go to Vanchipalayam. He further stated that he was since pre-occupied, if possible P.W.1 could go. P.W.1 found these accused standing by the side of P.W.2 They agreed to pay Rs.300/- as hire charges. Accordingly, P.W.1 took the taxi and he was proceeding on the road as suggested by the accused. When the vehicle was on its way to Vanchipalayam, the accused wanted him to stop the vehicle in order to facilitate them to go for passing urine. Accordingly, P.W.1 stopped the vehicle. At that time, suddenly, the accused brandished a knife at P.W.1, pushed him down from the car and dragged him into the nearby bush. They tied his legs and hands, closed his mouth and eyes with cloth and abandoned him in the bush. Then they took away a sum of Rs.1,700/-, a wrist watch and a gold ring from P.W.1. Both the accused fled away in the car leaving P.W.1 in the bush. After sometime, P.W.1 managed to loosen the knots and go over to the nearby field. He went to the field of P.W.4 which is located somewhere near the place of occurrence. P.W.4, removed the knots. Thereafter, P.W.1 informed P.W.4 about the occurrence. On the next day, a complaint was given to the Police on which basis the present case was registered. ii) P.W.10, registered the case in Crime No.414 of 2001 on 24.09.2011 at about 12.15 p.m. He proceeded to the place of occurrence and prepared observation mahazar, recovered the cloth https://hcservices.ecourts.gov.in/hcservices/ used for closing the mouth and eyes of P.W.1 from P.W.1 in the place of occurrence. Then P.W.10 was informed that the car, namely, car bearing registration No.TNI 2838 was found abandoned near the Emarald Auto Works at Majit Road, Erode. Therefore, he took witnesses and P.W.6 to the said place and recovered the vehicle under a recovery mahazar. The first accused was arrested in connection with some other case and A.2 was taken into police custody on the orders of the Court and he also gave confession but nothing was recovered. On completing investigation, P.W.10 laid charge sheet. Based on the above materials, the trial Court framed charges under Section 397 read with 34 I.P.C against the accused. The accused denied the charges and therefore, they were put on trial. iii) Before the trial court, on the side of the prosecution, as many as 11 witnesses were examined and 8 documents were exhibited. When the incriminating materials were put to the accused under 313 Cr.P.C., they denied the same. However, they did not choose to examine any witness nor did they exhibit any document. iv)Having considered all the above oral and documentary evidence, the trial Court found the accused guilty and imposed R.I for nine years. It is against the same, the accused have come forward with these two appeals. 3. I have herd the learned counsel for the appellants and the learned Government Advocate and also perused the records carefully. 4. The learned counsel for the appellants would assail the conviction on three grounds. The first and foremost ground is the delay in preferring the complaint. The learned counsel would submit that though it is the case of the prosecution that P.W.1 was relieved from the place of occurrence on the same day, the complaint has been given after about 16 hours. This delay has not been explained away. Though this argument is attractive, in my considered opinion, the same cannot be accepted so as to hold that the prosecution has failed to prove the case. A cursory perusal of the complaint would go to show that the names of the accused have not been mentioned. Had it been the case that the names of the accused were mentioned, then it could be said that by the delay, the names had been falsely implicated. But here in this case, when there was no mention of the names of the appellants specifically in the complaint, the delay in preferring the complaint does not assume any importance. The complaint only speaks of the occurrence, in which, P.W.1 was robbed. P.W.1 has tacitly spoken to about the occurrence and duly corroborated by the complaint as well as by the evidence of P.W.2. https://hcservices.ecourts.gov.in/hcservices/ 5. Now, coming to the next contention of the learned counsel for the appellants, it is his contention that there was no testing identification parade held to enable the witnesses to identify the accused and so, the identification of the accused made for the first time during the trial cannot be given any weightage of. In this regard, I may state that it is not as though the witnesses had occasion to see the accused only for a fraction of time. As per the evidence of P.W.2, the accused travelled along with P.W.1 for quite some time. That means, P.W.1 would have been in a position to have a complete picture of these accused in his mind. That is how, he has identified the accused in the Court. Therefore, though the Court should be reluctant to act upon the identification made for the first time in the Court for want of previous testing identification parade, in the case on hand, I am of the view that the failure to hold testing identification parade would not in any manner cause any doubt in respect of the identification of the accused made by P.W.1 in the Court. Therefore, the argument of the learned counsel for the appellants in this regard is rejected. 6. The learned counsel for the appellants would further submit that there is material contradiction in respect of removal of knots by P.W.1. He would point out that though P.W.1 has stated that after the accused had left him in the place of occurrence, he managed to remove the knots, now P.W4 would say that he only removed the knots. In my considered opinion, there is no such material contradiction available between these two pieces of evidence. What all that P.W.1 has stated is that he managed to remove knots so as to move to the house of P.W.4. He has not stated that he had removed the knots in his hand. It is only P.W.4 who had removed the knots. Therefore, there is no contradiction in the evidence of P.W.1 and P.W.4 in this regard. 7. Lastly, the learned counsel for the appellants would submit that since there was no discovery of facts after the confession said to have been given by these accused, the same is not admissible in law. Regarding this legal proposition, there is no quarrel. Hence, the confession of the accused cannot be used by the prosecution in any manner. That is the reason why the prosecution relies on the evidence of P.W.1 alone. Though it is true that the car was not recovered from the possession of the accused, that itself will not be a ground to discard the case of the prosecution. The accused have abandoned the car elsewhere from where the car was recovered by P.W.10 in the presence of witnesses. https://hcservices.ecourts.gov.in/hcservices/ 8. Further, the learned counsel would submit that the articles such as wrist watch, gold ring and the cash said to have taken away from P.W.1 have not been recovered. Of course, it is true. But on that score,the case of prosecution cannot be rejected. In such view of the matter, I hold that the lower Court was right in holding that the accused has committed the crime. 9. Now coming to the nature of the offence said to have been committed, as already stated, they have committed the offence under Section 397 r/w 34 I.P.C. But it is not in evidence that the accused while committing robbery, either caused any grievous hurt or attempted to cause death by using any deadly weapon. Therefore, the offence committed by the appellants would not fall under Section 397 instead, it would fall only under Section 394 I.P.C. 10. Now, coming to the quantum of punishment, the trial Court has imposed a punishment of R.I for nine years. Going by the age of the accused, the contention of the learned counsel that they have big families to look after, gravity of the offence, the nature of the offence and all the other attending circumstances, it is in the interest of justice to reduce the sentence imposed on the appellants by the lower Court. It is brought to the notice of this Court that while in jail, the second accused has obtained a diploma in Electrical Engineering and after coming out on bail, he secured B.A. Degree and also obtained a diploma in a different subject. The first accused is presently doing textile business. Thus, it appears that the accused have reformed themselves and therefore, they will not involve in any such crime in future. It is reported to the Court that they have undergone imprisonment for a period of 3 ½ years. Having regard to all the above, the accused are liable for punishment for the offence under Section 394 I.P.C and they are liable to be imposed with punishment of R.I for the period already undergone. 11. In the result, the appeals are partly allowed in the following terms: i. The appellants are convicted under Section 394 I.P.C. Instead of Section 397 r/w 34 I.P.C.; ii. The punishment of nine years R.I is reduced to the period of imprisonment already undergone. ii. In all other respects, the appeals stand dismissed. https://hcservices.ecourts.gov.in/hcservices/ Iii. The bail bond, if any, shall stand discharged. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. pal To 1. The Judicial Magistrate No.1 Tiruppur 2. do thro the Chief Judicial Magistrate Coimbatore 3. The additional District and Sessions Judge, Tiruppur 4. The Principal Sessions Judge Coimbatore 5. The Public Prosecutor, High Court, Chennai. 6. The Superintendent of Prison, Coimbatore 7. The Inspector of Police, Anupar palayam Police Station, Tiiruppur, Coimbatore District 2 ccs to mr.P.M. Duraisamy, sr. 17430 Crl.A.No. 1452 of 2004 and 181 of 2005 MBS (CO) kk 5/4 https://hcservices.ecourts.gov.in/hcservices/