Madras High Court
Saravanan vs State By on 4 February, 2022
Crl.R.C.No.1319 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.02.2022
CORAM:
THE HON'BLE Ms.JUSTICE R.N.MANJULA
Crl.R.C.No.1319 of 2016
1. Saravanan
2. Prabhu
... Petitioners
Vs.
State by
Inspector of Police,
Thiruvannamalai Town Police Station,
Thiruvannamali.
... Respondent
Criminal Revision filed under Sections 397 and 401 Cr.P.C praying to
call for the records and set aside the judgment in Criminal Appeal No.07 of
2010 dated 21.06.2015 on the file of the learned District and Sessions Judge,
Thiruvannamalai confirming the sentence in S.C.No.269 of 2007 on the file of
the learned Additional Assistant Sessions Judge, Thiruvannamalai order dated
17.08.2010.
For Petitioners : Mr.S.Ananthanarayanan
Senior Counsel
For Respondent : Mr.A.Gopinath
Government Advocate (Crl. Side)
*****
1/12
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Crl.R.C.No.1319 of 2016
ORDER
This Criminal Revision case has been preferred challenging the
judgment of the learned Sessions Judge, Tiruvannamalai dated 21.06.2016
made in C.A.No.7 of 2010 which confirmed the judgment of the learned
Additional Assistant Sessions Judge, Tiruvannamalai dated 17.08.2010 made
in S.C.No.269 of 2007.
2. The revision petitioners are the accused before the trial Court. The
case of the prosecution is that on 11.09.2006 at about 10.30.a.m the accused 1
and 2 with an intention to rob a sum of Rs.2,00,000/- kept in the motor cycle
of the de facto complainant/PW1-Pandurangan bearing registration No.TN25-
D-0271, tried to open the motor cycle box with a screwdriver; when PW1 saw
this and rushed near his motor cycle by shouting, the accused showed knife
and threatened him that they would kill him and took away Rs.2,00,000/-
which was kept in the motor cycle; the witnesses by name Murugesan,
Subramani and Elumalai were tried to catch hold of them, but the accused
threatened them by throwing away the soda bottles kept in a shop and escaped
from the spot. Thus the accused have committed the offence under Sections
392, 392 read with 397 read with 34 IPC.
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Crl.R.C.No.1319 of 2016
3. On the complaint (Ex.P1) given by PW1-Pandurangan, PW7-
Venkatachalam, Sub Inspector of Police registered a case in Crime No.588 of
2006 of Tiruvannamalai Town Police Station under Sections 392, 397 read
with 34 IPC and prepared FIR (Ex.P10). PW8-R.Natarajan, Inspector of
Police took up the case for investigation, went to the place of occurrence and
prepared the observation mahazar and rough sketch in the presence of the
witnesses. He also collected the glass pieces from the scene of occurrence
under a Mahazar in the presence of witnesses. He enquired the witnesses and
recorded their statements. On the same day evening at about 5.00 p.m when
he was involved in vehicle check, the accused came in a motor cycle. When
they were intercepted by PW8, they voluntarily gave a confession statement.
By virtue of their confession, Rs.1,00,000/- out of the robbed sum along with
screwdriver was recovered under mahazars in the presence of witnesses. The
recovered properties were sent to the Court vide Form-95. After completing
the investigation, he filed the charge sheet against the accused under Sections
392, 397 read with 34 IPC. The learned Judicial Magistrate-I, Tiruvannamalai
took cognizance of the case in PRC.No.60 of 2006. After furnishing the
copies to the accused and complying all other legal mandates, the case was
committed to the file of the learned Principal Sessions Judge, Tiruvannamali.
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Crl.R.C.No.1319 of 2016
From there, the case got assigned to the file of the learned Additional
Assistant Sessions Judge, Tiruvannamalai for trial. On perusal of the records
and on being satisfied with the evidence available on record, the learned trial
Judge framed charges against the first accused under Sections 392, 397 read
with 34 IPC and against the second accused under Sections 392 read with 34
IPC and 397 read with 34 IPC. When the accused were questioned, they
pleaded innocence and claimed to be tried.
4. During the course of trial, on the side of the prosecution, 8 witnesses
were examined as PW1 to PW8, 17 documents were marked as Exs.P1 to P17
and 6 material objections have been marked as M.O.1 to 6. When the
incriminating materials found from the prosecution evidence were put to the
accused under Section 313 Cr.P.C, they denied their involvement. On the side
of the defence, no witness was examined and no document was marked.
5. At the conclusion of the trial and after considering the evidence
available on record, the learned trial Judge found the accused guilty for the
offence under Sections 392 read with 397 IPC and convicted and sentenced
them to undergo Rigorous Imprisonment for Seven Years and imposed a fine
of Rs1,000/- in default to undergo Rigorous Imprisonment for Six Months.
The appeal filed by the accused was also dismissed by confirming the
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Crl.R.C.No.1319 of 2016
judgement of the trial Court. Aggrieved over that, the present Revision has
been preferred.
6. Heard the learned counsel for the revision petitioners and the learned
Government Advocate (Crl. Side) appearing for the respondent. Perused the
entire materials available on record.
7. The learned counsel for the revision petitioners submitted that no
independent witness has been examined and material witnesses were omitted
to be examined before the trial Court; though the accused were strangers to
PW1, no identification parade was conducted; the pen knife that is alleged to
be used by the accused during the occurrence is not deadly weapon and hence,
the accused ought not to have been punished for the offence under Section
397 IPC; there are material contradictions in the evidence of the witnesses and
PW3 and 4 are interested witnesses, who are already known to PW1. Hence,
this revision should be allowed.
8. The learned Government Advocate (Crl. Side) appearing for the
respondent submitted that the witnesses, who had witnessed the occurrence
were examined despite the evidence of PW1 itself is cogent, clear and reliable;
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Crl.R.C.No.1319 of 2016
the recovery witness PW6 has also stated about the recovery; the non
conduction of identification parade is not fatal to the case of the prosecution;
the complainant has no motive against the accused to implicate them falsely in
this case; the Courts below have appreciated the evidence in a right
perspective and convicted the accused and hence, the judgement of the Court
below does not require any interference.
9. Point for consideration:
Whether the confirmation of the guilt of the accused for
the offences under Sections 392 read with 397 IPC by the
learned Appellate Judge is fair and proper?
10. The evidence of PW1 would reveal that he had previously worked
as an Assistant at Kallakurichi Cooperative Sugar Mill. After retirement, he
was procuring Sugarcane from the agriculturists and supplying it to the Sugar
Mills. For the purpose of disbursing amount to the agriculturists, on
11.09.2006 he withdrew a sum of Rs.7,00,000/- from his account at State
Bank of India, Tiruvannamalai Branch. After withdrawing the amount, he
kept a sum of Rs.2,00,000/- in the box of the motor cycle and Rs.5,00,000/- in
the petrol tank cover. After stopping the vehicle at his house, he took
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Crl.R.C.No.1319 of 2016
Rs.5,00,000/- for the purpose of keeping it inside his house. Thereafter, when
he came out to take Rs.2,00,000/-, which was kept in the motor cycle for the
purpose of disbursing it to the agriculturists, the first accused was seen to be
opening the motor cycle box with a screwdriver. The second accused was also
nearby to him. On seeing that PW1 shouted and came near to his vehicle, the
accused 1 and 2 threatened PW1 by showing knife and thereafter, they stole
the money and went away in their motor cycle. When PW1 and others chased
them, they stopped the vehicle near a petty shop and took soda bottles from
the shop and threw it on the road and threatened everyone by stating that if
they dared to come near, they would kill them. By making such threatening
gestures, the accused escaped from the place of occurrence. The above cogent
evidence of PW1 would convince that he is narrating an incident which he had
already witnessed.
11. No motive is attributed against PW1 that he had given false
evidence against the accused. The accused are totally strangers to PW1.
Ex.P17/Bank Account Statement of PW1 would show that on the alleged day
of occurrence, he had withdrawn a sum of Rs.7,00,000/- from his State Bank
of India account, Tiruvannamalai branch. That would corroborate the
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Crl.R.C.No.1319 of 2016
evidence of PW1 that he had withdrawn the amount just for the purpose of
disbursing it to the agriculturists from whom he purchased sugarcane. PW2 is
the shop owner of the shop from which the accused 1 and 2 had taken away
the soda bottles and thrown away. But, he turned hostile. However,
PW3/Gajendiran and PW4/Subramani have stated in their evidence that they
had witnessed the occurrence and their evidence would show that they have
given the ocular account of what they had seen at the time of occurrence.
12. The conjoint reading of the evidence of PW3 and PW4 would show
that the case of the prosecution is true. Though it is alleged that PWs3 and 4
are known to PW1, it is not unusual for them to be present at the house of
PW1. Being agriculturists, they could have come to the house of PW1 for the
purpose of collecting money for the sugarcanes supplied by them. Since
PWs3 and 4 are incidental witnesses, their presence in the place of occurrence
is quite natural. Apart from the evidence of the eye witnesses, the evidence of
the recovery witnesses would also show that the weapon used for the
occurrence and the part of the amount robbed by the accused have been
recovered. Though the learned counsel for the revision petitioners has stated
that the evidence of witnesses have got lot of contradictions, on perusal of
records, it is seen that the evidence of witnesses does not suffer from any
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Crl.R.C.No.1319 of 2016
material contradictions so as to disprove the case of the prosecution. It is
submitted by the learned counsel for the petitioners that the non conduction of
the identification parade would earn a suspicion in the matter of identity in
favour of the accused. The evidence of PW1 would show that he has no doubt
as to the identity of the accused. PW1 had seen them closely at his house
when he came to take his motor cycle. Even if identification parade is
conducted and a report is filed, that can only be held as a corroborative piece
of evidence. The non conduction of identification parade alone cannot make
the identification of the accused at court by PW1 untrustworthy. Though the
conduction of identification parade would strengthen the case of the
prosecution, the absence of identification parade alone will not render the
prosecution an unbelievable one.
13. It is stated that the accused had taken some soda bottles from the
shop of PW2 and thrown it on the road in order to threaten people who
gathered there. The shop owner/PW2 had turned hostile. But the knife used
for the occurrence has been recovered on the confession given by the accused
and that has been substantiated from the evidence of PW6 and by production
of M.Os.2 and 3.
14. The learned counsel for the petitioners submitted that the pen knife
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Crl.R.C.No.1319 of 2016
alleged to have been used by the accused cannot be classified as a deadly
weapon and hence the accused ought not to have been convicted for an
aggravated form of robbery under Section 397 IPC. Apart from the knife,
screw driver has also been recovered on the confession of the accused. But
the screwdriver was used by the accused only to open the box of PW1's motor
cycle. The pen knife was used by the accused for the purpose of threatening
PW1. However, they have not caused any injury on anyone including PW1.
Though the accused have not injured PW1 or other witnesses, they restrained
them from approaching them, for the purpose of recovering the money taken
away by them. Obviously the act of the accused would have caused fear in the
mind of PW1 that the accused would injure him with knife.
15. Though pen knife is not as deadly as a regular big knife, the fact that
the weapon was used to cause fear in the mind of PW1 cannot be denied. The
learned trial Judge found the accused guilty for the offence under Sections
392, 392 read with 34 and 397 read with 34 IPC in order to convict the
accused under Section 397 IPC. Since it is not proved that the accused had
used any deadly weapon for the occurrence, the Courts below are not correct
in convicting the accused for the offence under Sections 397 read with 34 IPC.
Instead the accused ought to have been convicted under Section 392 read with
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Crl.R.C.No.1319 of 2016
34 IPC alone. To that extent, I feel that the judgment of the Court below
needs modification.
16. In the result, this Criminal Revision is partly allowed and the
judgement of the learned Sessions Judge, Tiruvannamalai made in C.A.No.07
of 2010 is modified to the effect that the accused are found guilty for the
offence under Section 392 read with 34 IPC and convicted and sentenced to
undergo Rigorous Imprisonment for Three(3) years and to pay a fine of
Rs.5,000/- each in default to undergo Rigorous Imprisonment for Three
Months. If the fine amount is paid already, need not be paid again. If the
accused are in bail, the trial Court is directed to issue warrant to secure the
petitioners/accused to undergo remaining period of incarceration.
04.02.2022
Index: Yes/No
Speaking / Non Speaking Order
kmi
To
1.The Sessions Judge,
Tiruvannamalai.
2.The Additional Assistant Sessions Judge,
Tiruvannamalai.
3.The Inspector of Police,
Tiruvannamalai Town Police Station,
Tiruvannamalai.
4.The Public Prosecutor,
High Court of Madras, Chennai-104.
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Crl.R.C.No.1319 of 2016
R.N.MANJULA, J
kmi
Crl.R.C.No.1319 of 2016
04.02.2022
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