IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.06.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN and THE HONOURABLE MR.JUSTICE K.N.BASHA Criminal Appeal No.1061 of 2007 Mani @ Kovai Mani .. Appellant/Accused vs. State, rep. by Inspector of Police Avadi Railway Police Station Chennai. Crime No.681/2006. .. Respondent/Complainant Criminal Appeal filed under Section 374 of the Code of Criminal Procedure against the judgment of the learned Additional Sessions Judge, (Fast Track Court-3), Poonamallee, dated 23.10.2007, in Sessions Case No.179 of 2007. ----- For Appellant : Mr.E.J.Ayyappan For Respondent : Mr.N.R.Elango Addl. Public Prosecutor ----- JUDGMENT (Delivered by P.D.DINAKARAN,J) The above appeal is directed against the judgment dated 23.10.2007 in S.C.No.179 of 2007 on the file of the learned Additional Sessions Judge (Fast Track Court-3), Poonamallee, convicting and sentencing the appellant herein, to undergo life imprisonment and to pay a fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for five years for the offence punishable under Section 394 read with 397, IPC. https://hcservices.ecourts.gov.in/hcservices/ 2. The charge against the accused is that he, on 12.10.2006 at 8.05 p.m. entered into the ladies compartment at Avadi railway station in a train, which was coming to Chennai from Tiruvallur, and committed robbery of jewels worth about Rs.25,000/- from one Amala by causing an injury on her head with an iron blade, thereby committed an offence punishable under Section 394 read with 397, I.P.C. 3. When the appellant was initially questioned, he denied his complicity in the crime and pleaded innocence. Therefore, the trial of the case was taken up. 4. To prove its case, the prosecution examined 9 witnesses as P.Ws.1 to 9, marked Exhibits P1 to P11 as well as M.Os.1 to 4. 5.1. The case of the prosecution, as discerned from the evidence of prosecution witnesses, is as follows. 5.2. P.W.1 Amala is working as Teacher and residing at ICF North Colony, Chennai. On 12.10.2006 at about 7.30 p.m. she was returning home in a train, which was coming from Tiruvallur to Chennai. When the train was stopped at the outer limits near Avadi railway station for signal, the accused entered into the train and threatened P.W.1 by showing M.O.1 knife. While she was about to escape, the accused cut P.W.1 on her head, snatched her thali chain and ran away from the scene of occurrence. When the train stopped at Avadi railway station, she informed about the incidence to the station master. They asked her to go to the hospital for treatment. As her husband was working in ICF, she went to the ICF hospital, where she was given first aid and thereafter, referred to railway hospital, Perambur. 5.3. P.W.2 Anitha, who is working along with P.W.1 and was travelling in the same train, corroborated the evidence of P.W.1. 5.4. P.W.4 Dr.Dhanalakshmi, Medical Officer, Railway Hospital, Perambur, treated P.W.1, found one sutured wound over scalp about 5 cm in length and issued Ex.P4 accident register to that effect. 5.5. On 12.10.2006 at 8.10 p.m. P.W.7 Muthu Vinayagam, Sub Inspector of Police, Avadi Railway Police Station, based on telephonic information given by one Lakshmikandhan, Station Master, went to the railway hospital, Perambur, examined P.W.1 and received Ex.P1 complaint and registered a case in Crime No.681 of 2006 for the offence punishable under Section 394 I.P.C. and prepared Ex.P9 First Information Report. He sent first information report to the Magistrate's Court and copies of the same to the higher officials. https://hcservices.ecourts.gov.in/hcservices/ 5.6. P.W.8 Rajkumar, Inspector of Police, took up the case for investigation, examined P.W.1, Lakshmikanthan, P.W.7 and P.W.4 and recorded their statements. P.W.9 Kumaravelu, Inspector of Police, continued the investigation and on suspicion, arrested the accused on 25.11.2006 at 4.00 p.m. at Pattabiram railway station and recorded his confession statement in the presence of P.W.5 Elumalai and P.W.6 Raja and recovered M.O.1 knife under Ex.P.10 Mahazar. Ex.P5 is the admissible portion of the confession statement. Ex.P6 is the signature of P.W.6 in the confession statement. Thereafter, the accused took P.Ws.5, 6 and 9 to his friend one Ravi, to whom the accused had handed over the two bangles and 12 gold coins, which were jewels allegedly converted through one Goldsmith at Flower Bazzar, from the stolen jewels of P.W.1. P.W.6 recovered M.O.2 series – two gold bangles, M.O.3 series – 3 gold coins with hook and M.O.4 series – 9 gold coins without hook from the said Ravi under Ex.P11 Mahazar in the presence of P.Ws.5 and 6. Exs.P7 and P8 are the signatures of P.W.6 in Exs.P10 and P11. P.W.9 sent the material objects to the Magistrate's Court under Form 95. P.W.9 by requisition dated 22.12.2006 requested the Chief Judicial Magistrate, Tiruvallur, for conducting test identification parade. Accordingly, P.W.3, the learned Judicial Magistrate No.I, Poonamallee, on receipt of Ex.P3, order from the Chief Judicial Magistrate, conducted test identification parade on 5.1.2007 at Central Jail, Chennai. P.W.1 had correctly identified the accused and Ex.P2 is the report of the test identification parade. 5.7. P.W.9 completed the investigation and after following all the legal formalities, filed the final report in the court against the accused under Section 394 read with 397, IPC on 24.1.2007. 6. When the accused was questioned under Section 313 of the Code of Criminal Procedure about the incriminating circumstances found in the evidence of prosecution witnesses, the accused denied the same. No oral or documentary evidence was brought forth by the accused before the court. 7. The trial court, on consideration of the oral and documentary evidence placed before it, found the accused guilty and convicted and sentenced him as referred to earlier. 8. The learned counsel for the appellant assails the conviction and sentence as under: (i) when the stolen jewels were not recovered in its original form, the evidence adduced by P.Ws.1 and 2 cannot be accepted to conclude that the accused was https://hcservices.ecourts.gov.in/hcservices/ the person who committed the alleged offence; (ii) the prosecution failed to establish that it was the accused who gave the gold chain for conversion, since the Goldsmith, who is said to have converted the snatched thali chain into gold coins and gold bangles, was not examined and P.Ws.5 and 6, who were witnesses to the recovery of jewels, had turned hostile; (iii) even before conducting the identification parade, the photograph of the accused was shown to P.W.1 and hence, the identification of the accused by P.W.1 cannot be accepted; and (iv) the prosecution has not proved the case beyond reasonable doubts and accordingly, the conviction and sentence have to be set aside. 9. Per contra, learned Additional Public Prosecutor submits that: (i) since the evidence of P.Ws.1 and 2, who are the direct ocular witnesses, corroborates with the other in respect of the overt act committed by the accused, the recovery of the stolen jewels in different form does not alter the case of the prosecution that it is the accused who committed the alleged crime; and (ii) the non examination of the Goldsmith does not affect the case of the prosecution since the victim/eye witness had correctly identified the accused in the identification parade and when the gold jewels were shown to her in the Court, she had rightly stated that those jewels were not stolen jewels. (iii) the contention that the test identification parade is liable to be rejected merely on the ground that the photograph of the accused was already shown to P.W.1 cannot be accepted, because she being the victim in a case of robbery and having seen the accused face to face very closely at the time of occurrence, and in the absence of any motive for P.W.1 to implicate the accused. https://hcservices.ecourts.gov.in/hcservices/ 10. We have perused the entire materials on record and heard the submission of both sides. The question that arises for our consideration in this appeal is whether the prosecution proved the guilt of the accused beyond all reasonable doubt. 11.1. The prosecution case mainly rests on the ocular evidence of P.Ws.1 and 2. P.W.1 is the victim, who suffered a cut injury on her head and lost her thali chain weighing about seven sovereigns. According to P.W.1, she is working as teacher in a school and residing at ICF Colony, Chennai and on the occurrence day, i.e. on 12.10.2006 at about 7.30 p.m. while she was coming home from Tiruvallur in a train along with P.W.2, the accused entered into the train when it had stopped at the outer limits near Avadi railway station and threatened P.W.1 by showing M.O.1 knife. When she attempted to move, the accused cut P.W.1 on her head, snatched her thali chain worth about Rs.25,000/- and ran away from the scene of occurrence. The evidence of P.W.2, who witnessed the occurrence, corroborated with P.W.1 in entirety. The evidence of P.Ws.1 and 2 is natural, cogent and trustworthy. Therefore, the contention of the learned counsel for the appellant that the evidence of P.Ws.1 and 2 cannot be accepted is rejected. 11.2. The first contention raised by the learned counsel for the appellant is that since the alleged stolen jewels were recovered in different form, it cannot be said that the accused was the person who committed the alleged offence. A perusal of the evidence of P.W.1 would show that it was the accused who attacked P.W.1 on her head with M.O.1 knife and snatched her thali chain. Moreover, P.W.1 had correctly identified the accused in the identification parade conducted by P.W.3. Therefore, the recovery of stolen jewels in different form would not affect the case of the prosecution as it is the usual practice that immediately after the occurrence, the accused convert the stolen articles, more so when it is gold. 11.3. Similarly, we are unable to agree with the contention raised by the learned counsel for the appellant challenging the test identification parade on the ground that the photograph of the accused was already shown to P.W.1, because, as rightly pointed out by the learned Additional Public Prosecutor, P.W.1 being the victim of robbery, who suffered an injury at the hands of the accused, lost her thali chain and seen the accused face to face at a very close distance, had rightly remembered the face of the accused and identified him, which cannot be discarded lightly. https://hcservices.ecourts.gov.in/hcservices/ 11.4. The non examination of the said Ravi, from whom the alleged golden jewels were recovered, does not alter the case of the prosecution, as the alleged recovery was made only on the basis of the confession of the accused. Moreover, when there is direct eye witness for the occurrence, the non examination of the person from whom the stolen articles were recovered is of no importance. 12. Under such circumstances, we are of the considered opinion that the prosecution has proved its case beyond reasonable doubts. We do not find any reason to interfere with the conclusion reached by the trial Court and therefore, the conviction and sentence recorded by the trial Court are confirmed and the appeal stands dismissed. ATR Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Additional Sessions Judge (Fast Track Court-III), Poonamallee. 2. Do Through The Principal Sessions Judge, Poonamallee. 3. The Inspector of Police Avadi Railway Police Station Chennai (Crime No.681/2006). 4. The Public Prosecutor High Court, Madras. 5. The Superintendent, Central Prison, Puzhal, Chennai. + 1 cc to M/s. E. J. Ayyappan, Advocate SR no. 28587 Crl.A.No.1061 of 2007 KSK(CO) SR/27.6.2008 https://hcservices.ecourts.gov.in/hcservices/