C.H.Nagapooshanarao vs State Rep. By
2022 Latest Caselaw 10534 Mad

                                                              1

                                     nIN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED: 20.06.2022

                                                            CORAM

                           THE HONOURABLE Mr. JUSTICE D.BHARATHA CHAKRAVARTHY

                                                  CRL.A.No.715 of 2019

                          1. C.H.Nagapooshanarao
                          2. Karthi
                          3. Naresh

                                                                        .. Appellants/Accused 3, 4
                                                                                            and 5

                                                             .Vs.

                     State Rep. By
                     Inspector of Police (Crimes),
                     No.3, Muthialpet Police Station,
                     Chennai
                     Crime No.910 of 2013                            .. Respondent / Complainant


                                  Criminal Appeal filed under section 374(2) of the Code of
                     Criminal Procedure, 1973, to set aside the judgement and sentence
                     passed by the XIX Additional Sessions Judge, Chennai in S.C.No.204 of
                     2014 dated 20.09.2019 by convicting the Appellants to undergo
                     Rigorous imprisonment for seven years for alleged offence under
                     Section 397 IPC.
                                       For Appellants   :         Mr.K.Udaya Kumar
                                                                  for Appellants 1 and 2
                                                                  Mr.M.Aswin
                                                                  for 3rd Appellant
                                       For Respondent   :         Mr.S.Vinoth Kumar
https://www.mhc.tn.gov.in/judis
                                                                  Government Advocate
                                                        2




                                                   JUDGMENT

This appeal is filed by the appellants / Accused

No.3, 4 and 5 aggrieved by the judgement of the XIX Additional

Sessions Judge, Chennai dated 20.09.2019 in S.C.N.204 of 2014 in and

by which all the three appellants were convicted by the Trial Court for

an offence under Section 397 of IPC and were sentenced to undergo

seven years Rigorous Imprisonment.

2. On 30.12.2013, when PW10 was on duty at the H3,

Muthialpet Police Station, the statement obtained from PW1- Liyagath

Ali from the Hospital was reduced into writing and a case in Crime

No.910 of 2013 was registered under Section 397 of IPC. The same was

taken up for investigation by PW10 and after investigation, he laid a

charge sheet against totally nine accused in the case proposing them

guilty under Section 120B r/w 395 of IPC and 395 r/w Section 397 of

IPC.

3. The case was taken on file as PRC No.37 of 2014 by

the learned XVI Metropolitan Magistrate and on appearance of the

accused, copies were furnished and the case was committed to the https://www.mhc.tn.gov.in/judis

Sessions Court, upon which the case was taken on file as S.C.No.204 of

2014 and was made over to the Trial Court.

4. After considering the submissions made on behalf of

all the nine accused, the Trial Court framed two charges under

Section 120 (b) and 395 r/w 397 of IPC. Of the nine accused, the 6th

accused was a juvenile and therefore, the case was split and

transferred to the appropriate Court. The 7th accused died pending

trial and the case against him was treated as abated. The rest of the

accused denied the charges and stood trial. Prosecution in order to

prove the charges examined the first informant one Liyagath Ali as

PW1, one Haja Sheriff, opposite shop owner, as PW2, one

Kumarasamy, who is the recovery witness for the confession and the

recovery as PW3 who turned hostile, one Mohammed Hussain, who was

also the witness for confession and recovery as PW4, who also turned

hostile, one Basheer Ahammed, who was again the witness to the

Seizure Mahazar as PW5, one Dr. Shanmugam, the Doctor, who treated

PW1 as PW6, One Dr.Ponraj was examined as PW7, who treated the

other injured witness Sardhar, who since died. One Thiru

S.Sivasubramanian as PW8, who was the District Munsif and who

conducted https://www.mhc.tn.gov.in/judis test identification parade in respect of A5. One

Tmt.Lakshmi Ramesh, Subordinate Judge, who at the relevant point of

time conducted test identification parade in respect of Accused 3 and

4 as PW9 and the Investigation officer viz., Ilakkuvan was examined as

PW10.

5. The prosecution also marked Ex.P1 to Ex.P59 and

also produced Mos.1 to Mos.14 and rested its case. Upon being

questioned about the evidence on record under Section 313 of Cr.PC,

the appellants and other accused denied the same as false and

thereafter, the Trial Court proceeded to hear the learned Public

Prosecutor on behalf of prosecution and the learned counsel

appearing on behalf of the accused and by a judgment dated

20.09.2019, the Trial Court while acquitting the other accused,

convicted the appellants viz Accused No.3, 4 and 5 alone for the

offence under Section 397 of IPC and sentenced each of them to

undergo seven years rigorous imprisonment. Aggrieved by the same,

the present appeal is filed before this Court.

6. Heard Mr.K.Udayakumar, learned counsel appearing for

appellants 1 and 2 and Mr.M.Aswin, learned counsel appearing for 3rd

appellant and Mr.S.Vinoth Kumar, learned Government Advocate https://www.mhc.tn.gov.in/judis

(Criminal Side) for respondent.

7. The learned counsel appearing for appellants 1 and 2

would submit that this is the case where as per the version of the

prosecution A1 was the person who was actually working in the shop of

PW1 and he was the king pin, who hatched the conspiracy. He

conspired with all the accused persons and upon his instructions, the

2nd accused had engaged accused No.3, 4 and 5 to commit robbery is

the case of the prosecution. In that view of the matter, when the

primary accused being A1, who is the king pin of the entire incident

and the 2nd accused, who on his instructions had acted and the other

accused viz., the accused No.8 and 9 having been acquitted, as the

prosecution did not prove the case against them, there was

absolutely no ground for the Trial Court to have convicted A3, A4 and

A5 alone. In a case of this nature, when the investigation has not

cared to bring the evidence on record to support its own case arising

out of a conspiracy, convicting of A3, 4 and 5 was totally unwarranted.

Therefore, the omission of the respondent police in not bringing

enough material against Accused 1 should enure to the benefit of all

the accused in this case.

https://www.mhc.tn.gov.in/judis

8. The learned counsel appearing for the 3rd appellant would

submit that as far as this case is concerned, accused No.3, 4 and 5

have been convicted only based on the identification parade. As far

as A5 is concerned even at the time identification parade., he had

complained to the learned Magistrate who conducted the

identification parade that prior to the identification parade itself he

was photographed in the police station and photographs were shown

to the witnesses. Therefore, he would submit that the said

identification should not be taken in to account as against him. In this

case, he would submit that the entire recovery as shown in the seizure

mahazar is false in as much as even as per the case of the

prosecution, the accused had thrown away the bag containing money

when they were fleeing from the scene of occurrence. This is because

of the witnesses chasing them. That being the situation, the entire

case of the prosecution as if recovery is made from the accused by

virtue of the Seizure Mahazar is totally false. Rightly the mahazar

witness who were examined have also turned hostile. He would

further submit that it is the duty of the prosecution to prove as to

what role is played by which accused. PW1 and PW2 are the two

witnesses to the incident. But however except generally stating that

these accused entered into the shop and committed the offence, both https://www.mhc.tn.gov.in/judis

the witnesses did not pin pointedly state about the role played by

each of the accused. This assumes importance because even the

charge framed in this case is erroneous. The accused who were

standing out of the shop were shown as if they entered into the shop

and committing the offence and vice versa. Even the said error was

not even corrected and that would also be fatal to the case of the

prosecution. The learned counsel taking this Court through the FIR,

submitted that the prosecution case as unfolded during the trial does

not totally tally with the original complaint as given in the FIR. There

is absolutely no examination of the two employees who were standing

outside when the shutter was put down and the Investigation officer

was unable to answer as to why the said employees were not

examined. Therefore, he would submit that already the appellants are

under incarceration for more than 1200 days without any evidence

whatsoever and therefore, prayed that the appeal be allowed.

9. Per contra, Mr.S.Vinoth Kumar, learned Government

Advocate appearing on behalf of the prosecution would submit that

this is a case of daylight robbery. The appellants who are bad

elements having antecedents, had indulged in the same with the help

of the other accused. Even though the prosecution is unable to prove https://www.mhc.tn.gov.in/judis

the conspiracy and was unable to bring forth any material to prove the

charges to the guilt as against the other accused, the Trial Court after

appreciating the entire evidence, came to the conclusion that A3, 4

and 5 stood on a different footing against whom there was evidence.

He would submit that the test identification parade was conducted by

PW8 & 9 and the said test identification parade reports are also duly

marked by the prosecution. During the test identification parade these

accused are identified by PW1 and therefore, PW1 who is present in

the shop and who is the injured witness and his identification of the

accused is of stellar quality and therefore cannot be doubted. On the

strength of the said identification, the trial court has convicted the

appellants and therefore, he would submit that there is no merit in

the appeal and prays that the conviction and sentence be confirmed

by this Court.

10. I have considered the submissions made on either side and

perused the material evidence on record.

11. In this case even as per the evidence of the investigation

officer, the robbed money was stuffed in a bag and the same was

thrown away while the accused was fleeing from the scene of https://www.mhc.tn.gov.in/judis

occurrence. It is useful to extract the said portion of his evidence :-

mt;thW jg;gpr; bry;Yk;nghJ bfhs;isaoj;j gzj;ij xU fUg;g[ igapy; nghl;L itj;jpUe;jij J}f;fp vwpe;J tpl;L brd;wdh; vd;Wk; mth;fs; jpUl gad;gLj;jpa ,Urf;fu thfdj;ija[k; m';nfna tplL ; r; brd;wdh; vd;Wk;

Twpdhh;/ gpwF ,t;tHf;if ehd; jPtpu tprhuiz nkw;bfhz;ljpy; mf;filapy;

ntiy bra;J te;j mg;Jy; fhjh; bd;gth; ,e;j gzj;ij bfhs;isaof;f ntz;Lk; vd;w jpl;lj;jpw;F K:isahf ,Ue;J bray;gl;lJ bjhpate;jJ/

and the witness to the seizure mahazar have also turned hostile.

Therefore, in this case on a scrutiny of the entire evidence on record,

the only piece of evidence which point out towards the appellants

committing the offence is that of the identification of PW1 in the Test

identification parade. Except the same, there is no other valid piece

of evidence to connect the accused to the occurrence. In this

background, on a careful perusal of the test identification parade, it

is further clear that even PW1 had identified only the 1st Appellant

viz., Nagapooshanarao and the 3rd appellant Naresh and the 2nd

appellant Karthi was not identified even by PW1. Therefore the said

finding perse is not correct.

12. This apart, as rightly contended by the learned counsel

for the appellant, even PW1 and 2 in their evidence did not depose https://www.mhc.tn.gov.in/judis

about the specific overacts in respect of the three appellants. Thus,

there is absolutely no evidence as to the part played by each of the

three accused. However the arguments regarding the framing of

charge is concerned, it may be seen that it is only a typographical

error of mentioning as A3, 4, 5 and 6 as standing out and entering into

the conspiracy. However a clear reading of the charges as well as the

final report filed by the prosecution, it would be clear that the

accused was put on ample notice that it was A3, 4 and 5 who went

inside the shop and committed the robbery. Therefore, the part of

the arguments regarding erroneous framing of charge is rejected in as

much as that typographical error did not result in prejudice to the

accused. But however the trial Court found that all the three accused

are identified by PW1 which is factually incorrect. Similarly, the

recovery in this case is on the face of it is artificial and even as per

the evidence of the investigation officer, the accused thrown the bag

of money and ran away. Therefore, in the absence of any other

material especially when it is pleaded by the accused at the earliest

point of time that even before the test identification parade they

were photographed and their photographs were shown to the

witnesses, on the sole basis of the identification by PW1 in the Test

Identification parade that too in respect of two accused alone cannot https://www.mhc.tn.gov.in/judis

form the side basis of conviction. Especially in a case of this nature

where the accused is said to have entered the shop and ransacked the

shop no scientific evidence whatsoever of lifting of finger print of

any nature whatsoever is not even spoken to by the investigation

officer. Therefore, I am of the view that in this case the prosecution

has miserably failed to establish and bring home the charges and the

finding of guilt by the trial Court is unsustainable.

13. In view thereof the Criminal Appeal is allowed. The

conviction and sentence imposed against the appellants in Sessions

Case No.204 of 2014 on 20.09.2019 by the learned XIX Additional

Sessions Judge, Chennai 600 001, are set aside and the appellants

/Accused 3, 4 and 5 are acquitted of all charges. Fine amount, if any,

paid shall be refunded to appellants. Appellants are directed to be

released forthwith, if their detention is not required in any other

case.

20.06.2022

rka

Index: Yes/No Internet: Yes/No Speaking Order/Non Speaking Order

https://www.mhc.tn.gov.in/judis

To

1. The XIX Additional Sessions Judge, Chennai

2. The XV Metropolitan Magistrate, Chennai

3. The Superintendent of Prison, Puzhal

4. The Additional Public Prosecutor, Chennai

https://www.mhc.tn.gov.in/judis

D.BHARATHA CHAKRAVARTHY.,J

rka

CRL.A.No.715 of 2019

20.06.2022

https://www.mhc.tn.gov.in/judis