Bail Slip Crl.A.No.1446/2002:- The Appellant/ Accused No.2 Viz Santhosh @ Babu S/o. Arunachalam (A2) was directed to be released on bail as per order of this Court dated 17.10.2002 made in Crl.M.P.No.10726/02 in Crl.A.No.1446/02 on the file of this Court. Crl.A.No.1490/02: The Appellant / Accused No.3 viz Srinivasan S/o. Ramasamy Achari (A3) was directed to be released on bail as per order of this Court dated 25.10.2002 made in Crl.M.P.No.10923/2002 in Crl.A.No.1490/02 on the file of this Court. Crl.A.No.1580/02:- The Appellant/ Accused No.4 Viz., Benny P. Kuriakose was directed to be released on bail as per order of this Court dated 6.5.2003 made in Crl.M.P.No.4017/03 in Crl.A.No.1580/02 on the file of this Court. Crl.A.No.1478/02:- That the above said Appellant/ Accused No.1 Viz Biju S/o. Verghese was directed to be released on bail as per order of this Court dated 4.8.2003 made in Crl.M.P.No.6555/03 in Crl.Appeal No.1478/02 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.03.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.A.Nos.1478, 1446, 1490 and 1580 of 2002 Biju .. Appellant in Crl.A.No.1478 of 2002/A1 Santhosh @ Babu .. Appellant in Crl.A.NO.1446 of 2002/A2 Srinivasan .. Appellant in Crl.A.No.1490 of 2002/A3 Benny P.Kuriakose .. Appellant in Crl.A.No.1580 of 2002/A4 Vs. The State, rep. by Inspector of Police, B.1 Bazaar Police Station,Crime Coimbatore. (Crime No.1170 of 1996) .. Respondent in all the Criminal Appeals/ Complainant https://hcservices.ecourts.gov.in/hcservices/ Criminal Appeals filed under Section 374 of Cr PC against the judgment dated 7.10.2002 in S.C.Nos.28 of 2000 and 253 of 2001 on the file of the Additional District and Sessions Court (Fast Track Court No.2), Coimbatore. For appellant in Crl.A.No.1478 of 2002 : Mr.S.Xavier Felix For appellant in Crl.A.No.1446 of 2002 : Mr.K.Kalyanasundaram For appellant in Crl.A.No.1490 of 2002 : Ms.Vanathi Srinivasan For appellant in Crl.A.No.1580 of 2002 : Mr.J.Pothiraj For respondent in all the Crl.As. : Mr.I.Paul Noble Devakumar, Govt. Advocate (Crl. Side). JUDGMENT The Criminal Appeals arise out of the judgment of conviction and sentence, dated 7.10.2002 in S.C.Nos.28 of 2000 and 253 of 2001 on the file of the Additional District and Sessions Court (Fast Track Court No.2), Coimbatore, whereby, the appellant (A.1) in Crl.A.No.1478 of 2002 and the appellant (A.4) in Crl.A.No.1580 of 2002 were convicted for the offence under Section 457 IPC and each sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1,000/- each, in default, each to undergo simple imprisonment for six months and A.1 and A.4 were also convicted for the offence under Section 392 read with 397 IPC and each sentenced to undergo rigorous imprisonment for ten years. The sentences imposed on A.1 and A.4 were directed to run concurrently. The appellant (A.2) in Crl.A.No.1446 of 2002 and the appellant (A.3) in Crl.A.No.1490 of 2002 were convicted for the offence under Section 414 IPC and each sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/- each, in default, to undergo simple imprisonment for six months. 2. The case of the prosecution is as follows: On the fateful day, on 3.6.1996 at about 8.30 p.m., when P.W.1 Ambi, his wife P.W.3 Omana, his daughter P.W.4 Usha @ Nisha and other two daughters Rajeswari and Vishnupriya, were inside the house/workshop, owned by the parents of P.W.9 Thilaka and when P.W.5 Raja, P.W.6 Rajesh, P.W.7 Sathish and one goldsmith Gopal, were doing their gold ornamental work/manufacturing work of the gold jewellery, A.1, A.4 and one Sibu (absconding accused) entered into P.W.1's house/workshop. As soon as they entered the house/workshop, they bolted the door. At that time, P.W.1, his wife and children were watching television. https://hcservices.ecourts.gov.in/hcservices/ Sibu (absconding accused) was armed with revolver. A.4 Benny Kuriakose was armed with knife. A.1 Biju possessed cycle chain and chilli powder. When Sibu, the accused who possessed revolver directed the workers to handover the jewelleries, P.W.1 who was watching television, questioned as to what was the problem. Immediately, A.1 sprinkled the chilli powder on the eyes of P.W.1 and he immediately rushed to the kitchen to wash his eyes. A.4 entered the kitchen and removed the chain worn by P.W.3 Omana. The third daughter of P.Ws.1 and 3, namely Vishnupriya started crying. A.4 used knife and threatened Vishnupriya not to cry. At that time, they heard the knocking sound of the door in the workshop. Immediately, A.4 went and opened the door and P.W.1's brother's son, Sivan returned to the house/workshop after handing over the jewelleries to Ashok Jewellers. Then, A.4 bolted the door from inside. A.4 took P.Ws.1 and 3 and their daughters and also took Sivan into the place where P.W.1 and his family were lodged. Within 15 minutes, P.W.8 Santhosh knocked the door and once again, A.4 went and opened the door and pushed P.W.8 inside the house and bolted the door. After 15 minutes, one Arumugham, the grinder mechanic knocked the door. Again, immediately, A.4 took him inside the house and bolted the door. Sibu (absconding accused) took all the jewelleries in the workshop in one yellow bag and directed all the persons to enter into the kitchen and then the accused locked the door and threatened the witnesses not to shout and if they shout, they will kill them. Then, the accused left the place. P.W.1 took 'aruval' and tried to open the kitchen door and they came to the workshop, but the workshop door was locked from outside. Then, they opened the windows and made an alarm and then only, P.W.9 Thilaka, the house owner's daughter came to the first floor and opened the workshop. P.W.9 came to know about the robbery and she intimated the same to her mother. P.W.1 intimated the robbery to his brother Chellappan and immediately Chellappan rushed to the place of occurrence. Then, P.W.1 gave a complaint Ex.P-1, to the Police Station at 9 p.m. Since P.W.1 was not well-versed in Tamil, he narrated the incident to Chellappan, who wrote the complaint, which was handed over to P.W.14 Marthandan, Inspector of Police and he received the complaint and registered a case in Crime No.1170 of 1996 for the offence under Section 392 IPC and prepared the printed FIR Ex.P-13. P.W.14 Marthandan, Inspector of Police went to the place of occurrence and prepared observation mahazar Ex.P-14 and drew the rough sketch Ex.P-15. He examined P.Ws.1, 3 to 7 and 9 and others recorded their statements. https://hcservices.ecourts.gov.in/hcservices/ P.W.15 Kannan Kanagaraj, Inspector of Police arrested A.4 on 26.1.1997 and A.1 on 28.1.1997, in connection with R.S.Puram Crime No.47 of 1997 for the offence under Section 397 IPC and only on the basis of the confession given by A.1 and A.4 in that case, the Police came to know that the accused and their gang were involved in the present Crime No.1170 of 1996. P.W.15 Inspector of Police sent the copy of the confession to P.W.14 Inspector of Police. Then, P.W.14 Inspector of Police, on the basis of the confession of A.1 and A.4, seized the material objects and he took steps for identification of the material objects by P.W.1. Accordingly, P.W.1 identified the weapons used by the accused. Then, P.W.14 Inspector of Police also took steps for conducting test identification parade and gave Ex.P-4 requisition for the same. Ex.P-3 is the order of the Chief Judicial Magistrate for taking necessary action. In pursuance of the same, P.W.2 Judicial Magistrate conducted the test identification parade, after following the formalities and issued Ex.P-5 is the proceedings of the test identification parade. On 28.1.1997, P.W.14 Inspector of Police arrested A.2 and A.3 at about 8 a.m., near the Corporation School at Maa.Naa.Kaa. Street, when A.2 and A.3 were proceeding in Kinetic Honda two- wheeler (M.O.13) bearing Registration No.TN-37-K-2793,, which was seized in the presence of P.W.10 Thangappan and one Kunjuraman. Then, the Police recorded the confession of A.2 in the presence of the same witnesses. The admitted portion of the same is Ex.P-6. In pursuance of the same, A.2 Santhosh identified P.W.13 Sivakumar, from whose shop, M.Os.6 to 9 gold ingot and M.O.10 gold bracelet, were recovered in the presence of the same witnesses under Ex.P-9 mahazar. A.3 Srinivasan also gave a confession and the admitted portion of the same is marked as Ex.P-7. In pursuance of the same, A.3 identified P.W.12 Vellingiri, who was residing in Maa.Naa.Kaa. Street and he handed over M.O.1 gold chain and M.Os.2 to 5 gold ingot, which were seized in the presence of the same witnesses, under Ex.P-8 mahazar. P.W.14 Inspector of Police examined P.W.12 Vellingiri and P.W.13 Sivakumar and recorded their statements. On the basis of the confession given by A.2, P.W.14 Inspector of Police also seized TN-37-T-4532 Hero Honda Motor Cycle under Ex.P-12 mahazar and the said Hero Honda Motor Cycle is marked as M.O.12. Then, P.W.14 Inspector of Police despatched the material objects to the Court and remanded the accused to judicial custody. On the basis of the confession given by A.2 Santhosh, the Police went to Kerala State at Thottupuzha and in the presence of the father of A.2 namely Arunachalam, they made a search and Ex.P- 16 is the search list and seized M.O.11 revolver and M.O.3, in the presence of same witness and sent M.O.11 revolver to the Court and https://hcservices.ecourts.gov.in/hcservices/ with a requisition Ex.P-17, it was sent for ballistic expert's opinion. Since P.W.14 Inspector of Police was transferred, P.W.16 Inspector of Police took up the matter for investigation. He came to know that the accused also committed the offence under Sections 3 and 25 (1-B)(1-A) of the Arms Act and before filing the charge sheet, he obtained sanction from the Police Commissioner and gave a requisition and received the sanction under Ex.P-18. On 18.4.1997, after concluding the investigation, P.W.16 Inspector of Police filed the charge sheet against the accused for the offences under Sections 147, 148, 450, 395 and 397 IPC and Section 25(1-B)(1-A) of the Arms Act. 3. The trial Court, after following the formalities, framed necessary charges against the accused, to which, they pleaded not guilty. On examining P.Ws.1 to 16, marking Exs.P-1 to P-18 and M.Os.1 to 13, the trial Court posed questions putting incriminating evidence against the accused, which was denied by them. The accused examined one Jayaraj as D.W.1, the News Editor of the newspaper "Daily Thanthi" and through him, the news item published on 29.1.1997 was marked as Ex.D-1. The trial Court, after considering the oral and documentary evidence and the arguments put-forth by both sides, convicted and sentenced the accused as indicated above. 4. Challenging the conviction and sentence passed by the trial Court, learned counsel for A.1 and A.4 (the arguments of the learned counsel for A.1 were adopted by the learned counsel for A.4) submitted that the genesis of the occurrence is highly suspicious. The evidence of P.W.1 and P.W.14 Inspector of Police, contradict with each other in respect of the complaint. The time of commencement of the investigation is much prior than the lodging of the complaint. There is a material contradiction between the evidence of P.W.1 and P.W.11 Ramesh, who is the owner of the gold. The time of occurrence has not been spoken to by P.W.14 Inspector of Police. A.1's arrest by P.W.15 Inspector of Police, was not proved in accordance with law. The recovery under Section 27 of the Indian Evidence Act, was not proved. The chilli powder was not recovered from the scene of occurrence. The chilli powder was found in the lungi, towel, etc., and the chilli powder packet in the table, was not seized and marked and not sent for chemical examination. 5. Learned counsel for A.1 and A.4 further contended that even though the services of the finger print expert were utilised, no finger print expert was examined and the report of the finger print expert was not marked. Though the photographer's services were utilised, but the photographs were not marked and the photographer was not examined before Court. The arrest and recovery from A.2 and A.3 were not proved by way of examining the attestors of the https://hcservices.ecourts.gov.in/hcservices/ confession and recovery. It is highly doubtful that M.O.10 gold bracelet belongs to P.W.1, because P.W.1 has not stated that M.O.10 bracelet has been stolen by the accused. As per the evidence of P.Ws.5,6,7 and 8, P.W.1, at the time of commission of offence, 800 gms. of gold was not given by P.W.11 on that day. From the said 800 gms. of gold, half portion was converted as chain and the other half portion was converted as gold wire for making a chain, but the recovery was only gold ingot and so far, P.W.11, the owner of gold, has not filed any application for return of M.Os.2 to 9 gold ingot. 6. Learned counsel for A.1 and A.4 further submitted that during the test identification parade, only on seeing the photographs, the witnesses identified A.1 and A.4. Non-examination of Chellappan, who helped P.W.1 in writing the complaint, is fatal. P.W.5 Raja's evidence is only improvement of the case. The attestor of observation mahazar was not examined. Learned counsel for A.4 relied upon the evidence of D.W.1 and Ex.D-1, stating that the properties shown in the photograph in Ex.D-1 are not the properties (gold ingot and jewelleries) and to prove the same, D.W.1 was examined and only M.Os.1 and 10 alone were identified and proved to show that M.O.1 gold chain belongs to P.W.3 Omana and M.O.10 gold bracelet, belongs to P.W.1. But admittedly, the gold ingot has not been stolen by the accused, whereas, the 'news item' in Ex.D.1 stated that there was a recovery of the jewelleries, which were handed over to P.W.1. Learned counsel for A.1 and A.4 prayed for giving the 'benefit of doubt' in favour of A.1 and A.4 and for acquittal of A.1 and A.4. Learned counsel for A.1 and A.4 relied upon various decisions of Courts in support of their contentions. 7. Learned counsel for A.3 contended that A.3 was charged for the offence under Section 414 IPC. The evidence of P.W.14 Investigating Officer is not corroborated by the evidence of P.W.10 Thangappan, the attestor to the confession of the accused and also the recovery from P.W.12 Vellingiri, who alleged to have handed over M.Os.2 to 5 gold ingot, and the evidence of P.W.10 and P.W.14 contradict with each other. Non-examination of Sivan has disproved the arrest of A.3. He prayed for acquittal of A.3. 8. Learned counsel for A.2 would submit that the evidence of P.W.10 Thangappan and P.W.13 Sivakumar, contradict with each other. Relying on the decision of the Supreme Court reported in 1994 (1) SCC 387 (Achyut Das Vs. State of Assam), learned counsel for A.2 would submit that A.2 and A.3 were convicted for the offence under Section 414 IPC and the material objects seized from P.W.12 and P.W.13, on the basis of the confession of A.2 and A.3, are the stolen properties and after knowing that those properties are stolen properties, A.2 assisted in concealing the material objects and there is no evidence for the same. He prayed for acquittal of A.2. https://hcservices.ecourts.gov.in/hcservices/ 9. Learned Government Advocate (Criminal Side) appearing for the respondent-Police, submitted that there is no delay in preferring the complaint. The evidence of P.Ws.1 and 3 to 8 corroborate with each other and their evidence is natural and cogent. P.Ws.1 and 3 to 8 identified A.1 and A.4 in the test identification parade conducted by P.W.2 Judicial Magistrate. P.W.9 deposed that after hearing the noise, she came and opened the workshop door. The evidence of P.W.10 Thangappan, P.W.12 Vellingiri and P.W.13 Sivakumar, proved that M.Os.1 to 10 were seized on the basis of the confession given by A.2 and A.4. The trial Court has considered all the aspects in proper perspective and came to the correct conclusion. The judgment of the trial Court does not warrant any interference. 10. This Court has to decide as to whether the evidence of P.Ws.1 and 3 to 8, who are the alleged eye-witnesses, is reliable and trustworthy. The argument of the learned counsel for the appellants-accused that the evidence of P.Ws.1 and 3 to 8, is contradicting with each other, is unacceptable. While considering the evidence of P.Ws.1 and 3 to 8, their evidence clearly proved that on 3.6.1996 at about 8.30 p.m., the accused entered into the house/workshop of P.W.1 and committed the offence. Admittedly, the above eye-witnesses previously do not know the accused. Their evidence is cogent, natural and corroborate with each other. So, there is no reason for discarding their evidence. Their evidence is also corroborated by the evidence of P.W.9, who is the daughter of the house owner of P.W.1 and P.W.9 stated that after she heard the noise of hue and cry, she went to the first floor and opened the door which was locked from outside. So, the occurrence has been proved by the prosecution. 11. Learned counsel for the appellants-accused submitted that during the test identification parade, only on seeing the photographs, the witnesses identified A.1 and A.4. In support of his contention, learned counsel relied on a decision of a Division Bench of this Court, reported in 2006 (1) L.W. (Crl.) 179 (Abuthagir @ Thagir & Others Vs. State, etc.), in which it was held as follows: "27. The Apex Court in D.Gopalakrishnan v. Sadanand Naik (2005 1 SCC 85) has held that if the accused is available for identification, his photograph should not be shown, though police is entitled to show photograph to confirm whether the investigation is going on in the right direction. It is further held, that if the suspect is available for identification or for video identification, the photograph shall never be shown to the witnesses in advance. It is also held by the Apex Court in N.J.Suraj v. State rep. by Inspector of Police (2004 (11) SCC 346) that https://hcservices.ecourts.gov.in/hcservices/ if it is brought to surface that the photograph of the accused was shown to the witnesses before conducting identification parade, the test identification parade becomes meaningless and the same may not have any evidentiary value. It is held as follows: "The appellant was put to the test identification parade where these witnesses are said to have identified the appellant, but in their evidence they admitted that the photograph of the accused was shown to them before holding the test identification parade. In view of the fact that the photograph of the accused was shown to the witnesses, their identification in the test identification parade becomes meaningless and no reliance could be placed thereon." 28. ... ..... Unfortunately, the trial Court, without considering the above facts, as well as the evidence available on record, that there was an opportunity for the witnesses to see the photographs of the accused before the test identification parade, based its conclusion on the basis of the test identification, which is not acceptable to us, that too in view of the dictum laid by the Apex Court." 12. In the said decision, it was held by the Supreme Court that if the accused is available for identification, his photograph should not be shown, though police is entitled to show photograph to confirm whether the investigation is going on in the right direction. It is further held, that if the suspect is available for identification or for video identification, the photograph shall never be shown to the witnesses in advance. But, in the present case, during the identification parade conducted by P.W.2 Magistrate, P.Ws.1 and 3 to 8 have identified A.1 and A.4 twice. The argument of the learned counsel for the appellants-accused that the photographs alone have been shown to the above witnesses, does not hold good, because, as per the evidence of P.W.2 Magistrate, in the identification parade itself, A.1 and A.4 stated that the photographs have been taken at the Police Station. In such circumstances, merely the witnesses have stated that they have seen the accused in the Police Station, it will not affect the case against the accused, because, A.1 and A.4 and the absconding accused Sibu, were with these witnesses for more than half-an-hour at the time of occurrence. Hence, the witnesses have fond remembrance of the accused, since they have committed the offence. The occurrence took place on 3.6.1996. The test identification parade was conducted on 14.2.1997, nearly eight months after the occurrence. One of the witnesses stated that he has seen the accused in the Police Station and the other witnesses have stated that they have seen the accused at the time of occurrence. https://hcservices.ecourts.gov.in/hcservices/ Therefore, P.Ws.1 and 3 to 8 have identified A.1 and A.4 twice in the test identification parade and even during the course of trial, the witnesses have identified the accused before Court. So, P.Ws.1 and 3 to 8 have clearly identified A.1 and A.4 in the test identification parade, which has proved that A.1 and A.4 have committed the robbery on 3.6.1996. Hence, I am of the view that A.1 and A.4 have committed the offence. 13. It is true that the handing over of 800 gms. of gold to P.W.1 was deposed by P.W.11. Even though the investigating officer has verified the document regarding the handing over of gold to P.W.1 for manufacturing gold ornaments, the investigating officer has not seized any receipt/register for the same. Merely because the investigating officer has not seized any document/receipt/register, it will not affect the case of the prosecution. 14. In this context, learned counsel for the appellants- accused relied upon the decision of the Supreme Court reported in AIR 1987 SC 955 (Param Hams Yadav Vs. State of Bihar), in which the Apex Court held as follows: "17. Before we part with the case, we must point out that in a case involving the killing of the District Magistrate in his office, better investigation was expected and the State should have taken great care to ensure that every loophole in the investigation was plugged at the right time in accordance with law. It is unfortunate that lapses have occurred." 15. While considering the said decision of the Supreme Court, it was a case of conviction for the offences under Sections 302 and 120-B IPC and the case was based on circumstantial evidence and so, the links of each and every circumstance have not been established and the chain has not been completed and it is incomplete in evidence. The present case is based on the eye-witnesses and they have identified A.1 and A.4 before the test identification parade conducted by P.W.2 Magistrate and also during the course of trial. 16. Learned counsel for the appellants-accused further relied upon the decision of the Supreme Court reported in 2001 (4) Crimes 42 (SC) (State of Karnataka Vs. Ramanjanappa and others) to show that the graver the offence, greater should be the care taken to see that neither an innocent person is convicted, nor a guilty is allowed to escape. 17. There is no quarrel over the said proposition. But in the present case, the case was registered for the offence under Section 395 read with 397 IPC, for robbery, that too during night hours in Coimbatore District and P.Ws.1 and 3 to 8 do not previously know the accused and after the accused were arrested, the witnesses https://hcservices.ecourts.gov.in/hcservices/ identified the accused in the identification parade. Moreover, A.1 and A.4 were earlier arrested in connection with another case in Coimbatore R.S.Puram Police Station Cr.No.47 of 1997 and on the basis of the confession given by A.1 and A.4 in that case, the Police came to know that the accused are also involved in the present case and in such circumstances, the investigating officer has taken care and followed the procedures. 18. Learned counsel for the appellants-accused relied upon the following decisions of the Supreme Court in support of his contention regarding appreciation of evidence of the witnesses: (a) In the decision reported in 1977 Cri.L.J. 238 = AIR 1977 SC 381 (N.D.Dhayagude Vs. State of Maharasthra), the Supreme Court held as follows: "Where the story narrated by the witness in his evidence before the Court differs