Madras High Court

Mani (Now Confined At Central ... vs State Rep By The Inspector Of ... on 18 November, 2021

                                                                               Crl.A.No.433 of 2019

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                                DATED : 18.11.2021
                                                     CORAM

                        THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA

                                                      Crl.A.No.433 of 2019
                                                    and Crl.MP.4821 of 2020

                     Mani (now confined at Central Prison, Vellore)                   ... appellant

                                                             Vs.

                     State Rep by The Inspector of Police,

                     M2 Port Marine Police Station,

                     Chennai (Cr.No.1 of 2004)                                      .... Respondents

                              PRAYER : Criminal Appeal is filed under Sections 374 of
                     Criminal Procedure Code to call for the records relating to the judgment
                     of the learned Additional District and Sessions Court (FTC - III),
                     Chennai made in SC.No.145 of 2007 dated 19.06.2007 and set aside the
                     same.

                                    For Appellant        : Mr.S.N.Arunkumar.

                                    For respondent       : Mr.E.Raj Thilak, APP.

                                                       JUDGMENT

This appeal has been filed against the judgment of conviction

and sentence passed by the learned Additional District and Sessions

Court (FTC-III), Chennai made in SC.No.145 of 2007 dated 19.06.2007.

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2. The brief facts of the prosecution is as follows :-

The case of the prosecution is that on 26.05.2004 at about

12.05noon time a ship by name Ruhu Nupra was anchored at about 3-1/2

miles away from the Chennai Port and at that time the accused had

reached there by using a fishing boat and the accused 1, 2, 4 and 5 have

attempted to commit robbery by using deadly weapons by way of

boarding into the said ship through the rope and due to the intervention

of PW1 and his men who belong to Coast Guard their attempt was foiled

and they were apprehended in the same spot and thereafter, PW1 had

given a compliant to the respondent/police based on which a case was

registered in Cr.No.1 of 2004. The complaint alleged to be given by

PW1 had been marked as Ex.P1. On receipt of the complaint/Ex.P1, the

Investigating Officer had conducted investigation, examined connected

witnesses and after completing the investigation, laid a final report on the

file of the XVI Metropolitan Magistrate, George Town, Chennai for the

offences under Section 395 r/w.398 IPC and under Sections 395 r/w.398

r/w.511 IPC. The case was taken up in PRC.No.103 of 2004. Before

committal, A6 in the case passed away and the charges against A6 got

abated. The learned Magistrate finding that the case was triable by the

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Court of Sessions had committed the case to the Principal Sessions Court

and the same had been taken up in SC.No.145 of 2007 and thereafter

made over to the trial Court.

3. On the side of the prosecution, PW1 to PW7 were examined

and Exs.P1 to P11 were marked and M.Os.1 to 4 were also marked.

4. After completion of trial the accused were questioning under

Section 313 Cr.PC, the accused denied the charges. However, no

evidence were let in on the side of the defence. The trial Court after

hearing the arguments of both sides and upon analysing the relevant

records and materials found the accused 1 to 5 guilty under Sections 395

r/w.398 IPC and sentenced them to undergo 7years rigorous

imprisonment. As against the conviction and sentence passed by the trial

Court, the present appeal has been filed by the appellant/A4.

5. Assailing the judgment of conviction and sentence,

Mr.S.N.Arun Kumar, the learned counsel for the appellant/A4 would

submit that in the complaint given by PW1 which has been marked as

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Ex.P1, PW1 has clearly stated that out of six accused four accused have

already boarded into the ship, whereas the evidence in the Court was

totally contrary to the complaint. Though, PW1 has stated that

recoveries have been made from the accused, no specific evidence have

been let in by the prosecution to prove that the recovery of weapon has

been made from the appellant herein. The trial Court without taking into

consideration the serious lacuna and infirmities in the prosecution case

has erred in convicting the appellant.

6. The learned counsel would further submit that the co-

accused in this case (A1 to A3 and A5) who were similarly placed and

evidence against whom were similar in nature, preferred separate Appeal

in Crl.A.No.547 of 2007 before this Court and this Court taking into

consideration the infirmities in the evidence and also finding that the

prosecution has not proved its case beyond all reasonable doubt had

allowed the appeal and acquitted the co-accused (A1 to A3 and A5). He

would further submit that the trial Court without there being any

independent witnesses, based on the alleged confessions made to the

police and the evidence of the official witnesses had wrongly convicted

the appellant.

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7. Per contra, the learned Additional Public Prosecutor would

submit that it is a case where the appellant along with other accused had

attempted to board into a vessel which was anchored 3-1/2miles away

from the harbour to commit dacoity. PW1 who is the Assistant

Commandant of Coast Guard had given a complaint through whom

Ex.P1 has been marked and PW2 who accompanied PW1 at the time of

occurrence had corroborated the evidence and both of them have clearly

spoken about the overt act against all the accused and the trial Court after

considering the evidence and materials on record have rightly convicted

the accused for the offences under Sections 395 r/w.398 IPC and thereby

the conviction and sentence passed by the trial Court does not need any

interference.

8. Heard the counsel and perused the materials available on

record.

9. The specific case of the prosecution is that out of the six

accused, four accused have boarded into the ship for the purpose of

committing dacoity. It is the case of PW1 that he had gone to the place

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of occurrence, on being intimated by the sailors in the merchant vessel

Ruhu Nupra that some pirates had attempted to commit robbery.

Strangely in this case, none of the persons who are stated to have given

intimation to PW1 have been examined in this case. The I.O./PW7 has

also admitted to about not examining any other independent witness. It

is relevant to extract the admission of PW7/IO who has stated that "ehd;

ve;j rhl;rpfisa[k; tprhupj;J mtu;fspd; thf;FK:y';fis

gjpt[ bra;atpy;iy vd;why; rupjhd;".

10. Further, in respect of the co-accused who have been

similarly placed they have filed Crl.A.No.547 of 2007 before this Court,

this Court by judgment dated 30.11.2015 had allowed the appeal and

acquitted the accused. The relevant portion of the judgment in

Crl.A.No.547 of 2007 is extracted hereunder :-

"11. The specific case put forth on the side of the prosecution is that out of six accused, four accused have boarded into the ship in question for committing dacoity.

12. At this juncture, the court has to look into the allegations made in the complaint. The complaint in question has been marked as Ex.P.1, wherein it has been

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clearly stated that four accused out of six accused have already boarded into the ship in question. The author of Ex.P.1 has been examined as P.W.1. During the course of chief examination, he would say that four accused have tried to board into the ship in question by using its cable, but during the cross-examination he would say that he did not say anything that four accused have already boarded into the ship in question. The specific case of the prosecution is that four accused have already boarded into the ship, but the evidence of P.W.1 is totally inverse. Further, P.W.1 during the course of cross-examination has disowned the allegation made in Ex.P.1. Therefore, on the basis of rickety type evidence given by P.W.1, the Court cannot come to a conclusion that four accused out of six accused have already boarded into the ship or attempted to scale.

13. It is not an exaggeration to say that on the side of the prosecution, trustworthy evidence is not available for the purpose of proving the offence alleged to have been committed by all the accused. Further, as rightly pointed out on the side of the appellants/accused 1 to 3 and 5, no recovery has been made and further for the purpose of knowing the juxtaposition of the ship in question, no rough sketch is available on the side of the

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prosecution. Therefore, viewing from any angle, the contentions put forth on the side of the prosecution cannot be accepted.

14. The trial court, without considering the vital infirmities found on the side of the prosecution and also without looking into the nebulous evidence adduced by P.W.1, has erroneously invited conviction and sentence against the appellants/accused 1 to 3 and 5. In view of the discussions made earlier, this Court has found acceptable and considerable force in the contentions put forth on the side of appellants/accused 1 to 3 and 5 and altogether the present Criminal Appeal deserves to be allowed."

11. In the opinion of this Court, the case of the prosecution has

not been proved beyond all reasonable doubt and the trial Court has erred

in convicting the appellant without any legal evidence available on

record.

12. In fine, the Criminal Appeal is allowed. The conviction

and sentence passed against the appellant/accused in SC.No.145 of 2007

by the trial Court is set aside. The appellant/accused is acquitted. Bail

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bond, if any executed by him shall stand cancelled. It is stated by the

learned counsel for the appellant that the appellant is still in custody.

The appellant is entitled to be set at liberty, if his custody is not required

in any other case.