Bail Slip The Appellants/Accused No.1 & 2 viz., 1. Suresh S./o. Murugesan 2. Raja S/o. Subramani were directed to be released on bail as per order of this Court dated 30.5.2006 in Crl.M.P.No. 3148/06 in Crl.A.440/06 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15..02..2011 CORAM THE HONOURABLE MR. JUSTICE A.ARUMUGHASWAMY Criminal Appeal No.440 of 2006 1.Suresh 2.Raja ... Appellants / A1 & A2 -Versus- The State, Rep. By The Inspector of Police, Vellore Taluk Police Station, Vellore District. [Crime NO.444 of 2001] ... Respondent/Complainant Memorandum of Grounds of Criminal Appeal under Section 374 (2) of the Criminal Procedure Code against the judgement of conviction and sentence dated 03.04.2006 made in S.C.No.84 of 2002 on the file of the learned Assistant Sessions Judge, Vellore. For Appellants : Mr.Shanmugasundaram Senior counsel for Mr.P.Krishnan For Respondent : Mr.N.Kumanan, Government Advocate [Criminal Side] JUDGEMENT Challenging the conviction and sentence imposed in S.C.No.84 of 2002 by the learned Assistant Sessions Judge, Vellore, A1 & A2 therein have come forward with this criminal appeal. 2. The Appellants / A1 & A2 before the trial Court, stand convicted by the learned Assistant Sessions Judge, Vellore for the https://hcservices.ecourts.gov.in/hcservices/ offence under Section 397 of IPC and sentenced to undergo R.I. for 10 years each. 3. The case of the prosecution in brief is as follows:-P.W.1 Dr.Vinnu M.George is an orthopaedist surgeon. He is working in C.M.C. Hospital at Vellore. On 06.10.2001, while he was teaching driving of car to his wife P.W.2 at Oteri Road, Vellore, at about 11.30 p.m. A1 and A2 who came on a TVS 50 motor cycle followed the car. When the car stopped due to some problem, A1 and A2 stopped their moped in front of the car. By that time, P.W.1 had managed to start and ply the car. A1 and A2 followed the car closely. When the car again stopped after some distance due to some mechanical defect, A1 brandished them with a knife and A2 snatched away a gold chain – M.O.1 from the neck of PW2 and immediately after the occurrence, both A1 and A2 fled away from the place. On the next day morning P.W.1 gave a complaint before the Vellore Taluk Police Station. P.W.7, the Sub Inspector of Police, Taluk Police Station, Vellore, on receipt of Ex.P.1 complaint from P.W.1 registered a case in Cr.No.444 of 2001 for the offences under Sections 394, 397 r/w 34 of IPC and prepared Ex.P.7 printed FIR. Thereafter, he submitted the same before P.W.8 , the Inspector of Police, Vellore Taluk Police Staiton for further investigation. P.W.8, took up further investigation, rushed to the place of occurrence , prepared Ex.P.8 observation mahazar and Ex.P.9 rough sketch. He also examined PW1, PW2 and few other witnesses. On 08.10.2001 at about 12.00 noon he arrested A1 and A2 and recorded the voluntary confessions and pursuant to Ex.P.10 admissible portion of the confession statement of A1 , PW.8 recovered M.O.1 Gold chain, M.O.2 Knife and M .O.3 T.V.S.50 under the cover of Ex.P.11 Mahazar in the presence of attesting witness P.W.5 and another. At request , P.W.6, the then Judicial Magistrate No.3, Vellore held test identification parade in respect of A1 and A2 with witnesses P.W.1 & P.W.2. Ex.P.6 is the proceedings relating to Test Identification Parade of A1 & A2. P.W.8 continued the investigation, examined the P.W.1 and P.W.2, Judicial Magistrate and few others and recorded their statements, collected the materials and upon completion of the investigation, on 16.11.2001, he laid the final report against A1 and A2, the appellants herein for offences under Sections 397 r/w 34 of IPC. 4. On committal, the case was taken up for trial by the trial Court. The trial Court framed charge as against A1 and A2 under Section 397 of IPC. During the trial, as many as 8 witnesses were examined on the side of the prosecution and 11 documents were exhibited. M.O.1 to 3 material objects were produced. On completion of recording of evidence on the side of the prosecution, the Appellants / A1 and A2 were questioned under Section 313 of Cr.P.C. wherein they denied the evidences of the prosecution witnesses. They did not chose to examine any witness or to exhibit any document. Having considered all the above, the trial Court found the Appellants guilty for offence under Section 397 and imposed appropriate punishment as indicated at the earlier paragraphs of this judgement. Hence, the present appeal. https://hcservices.ecourts.gov.in/hcservices/ 5. The learned counsel appearing for the appellants vehemently contended that the witnesses have not mentioned any identifying feature of the accused persons either in the complaint or at the time of examination by the investigating officer. Under such circumstances, on 08.10.2001, how, the investigating officer arrested the appellants/A1 & A2 is not clear. One of the attesting witnesses [P.W.5] who was examined to speak about the recovery of the materials objects from A1 also turned hostile. There is no link evidence to connect the accused with the crime has been placed in this case by the prosecution. Hence, the appellants are entitled to the benefit of doubt. 6. The learned Government Advocate [Criminal Side] on the other hand would contend that even though the attesting witnesses to the recovery mahazar turned hostile, the other links have been established by the prosecution and the trial court rightly convicted the appellant and as such the criminal appeal is liable to be dismissed. 7. I have considered the arguments advanced on either side and also perused the available materials carefully. 8. P.W.1, an Orthopaedics surgeon who is working in C.M.C. Hospital at Vellore is the complainant. P.W.2 is the wife of P.W.1. According to the prosecution, on 06.10.2001 at about 11.30 p.m. P.W.1 was teaching driving of a car to his wife P.W.2. On 07.10.2001 at 00.30 hours at otteri, Vellore, A1 and A2 brandished with a knife and snatched a gold chain. P.W.1 is said to have lodged a complaint on 07.10.2010 at about 09.30 hours with a delay of 9 hours. Further, it is seen from the complaint that there is no mention in the complaint about any identifying features of the accused persons. Even when P.Ws.1 and 2 were examined by the Investigating Officer, they failed to mention any identifying features of the accused person. In fact, P.W.8, the Investigating Officer was not able to say , how, he could fix the identity of the accused persons without there being any identifying features of the accused persons spelt out by the witnesses. Even according to the cross examination of P.W.8 - the investigating officer, it is only the attesting witness P.W. 5 who identified the accused persons. The evidence of P.W.5 attesting witness is otherwise. According to him, he was called upon to come to police station. There is no evidence to link the accused persons with the alleged recovery of materials objects. P.W.5, the attesting witness turned hostile. Even though P.W.s 1 and 2 identified the accused persons when P.W.6 the Judicial Magistrate conducted Test Identification parade, it is not explained either by the witnesses or by the prosecuting agency, how, the witnesses could recollect and able to identify the accused persons at the time of test identification parade. As already stated above, the important links namely, the participation of the accused in the alleged crime of robbery and the recovery of the material objects pursuant to the confessions of the accused persons have not been proved by the prosecution beyond any reasonable doubt. In these circumstances, no weightage could be given to the test identification proceedings. Therefore, I am of the considered https://hcservices.ecourts.gov.in/hcservices/ view that the prosecution has miserably failed to prove the charge levelled against the appellants beyond any reasonable doubt and as such benefit of doubt should be given in favour of the appellants and they are entitled for acquittal. 9. In the result, the criminal appeal is allowed and the conviction of the appellants for the offence under Section 397 of IPC and sentence imposed on them by judgement dated 03.04.2006 made in S.C.No.84 of 2002 on the file of the learned Assistant Sessions Judge, Vellore, are set aside. Bail Bonds executed by the appellant shall stand cancelled. Sd/- Assistant Registrar True Copy/- Sub Assistant Registrar kmk To 1 The Judicial Magistrate NO-IV, Vellore 2 The Chief Judicial Magistrate, Vellore (For information) 3 The Assistant Sessions Judge Vellore District 4 The Principal Sessions Judge Vellore (for information) 5 The Superintendent Central Prison, Vellore 6 The Inspector of Police, Vellore Taluk Police Station Vellore District 7 The Public Prosecutor High Court, Madras +1 CC to Mr.P.Krishnan Advocate Sr 11239/11 Crl. Appeal No.440 of 2006 NR-CO KV- 28/06/2011 https://hcservices.ecourts.gov.in/hcservices/