Siva @ Track Siva vs State Rep. By
2022 Latest Caselaw 5739 Mad

                                                                                     CRL.A.No.147 of 2015


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 22.03.2022

                                                           CORAM

                                  THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR

                                                CRL.A.No.147 of 2015

                1.Siva @ Track Siva
                2.Anandkumar @ Anand
                3.Pandian
                4.Manikandan                                                  ... Appellants
                                                            Vs.
                State Rep. By,
                SHO, Grand Bazaar P.S. Through Public
                Prosecutor, Pondicherry
                in Cr.No.491/2011 u/s.395 IPC.                                ... Respondent

                PRAYER: Criminal Revision Petition filed under Section 374(2) of Criminal
                Procedure Code, to call for the records and set aside the judgment dated
                04.03.2015 passed in Sessions Case No.55/2014 by the learned Principle
                Sessions Judge, Pondicherry thereby acquitting the accused.

                                   For Appellants     :     Mr.K.Gandhi Kumar
                                   For Respondent     :     Mr.V.Balamurugane,
                                                            Public Prosecutor, Puducherry.

                                                            *****
                                                          JUDGMENT

The appellants/A1, A2, A4 & A5 preferred this Criminal Appeal

aggrieved by Judgment of Conviction and Sentence passed by the learned

Principal Sessions Judge, Puducherry (trial Court) in S.C.No.55 of 2014, dated

04.03.2015, convicting and sentencing the appellants to undergo Rigorous https://www.mhc.tn.gov.in/judis Page No.1/14 CRL.A.No.147 of 2015

Imprisonment for a period of ten years and each to pay a fine of Rs.5,000/-, in

default, to undergo Rigorous Imprisonment for six months by each for offence

under Section 395 IPC and acquitting A3 and A6.

2.The facts of the case is that on 05.11.2011, at about 05.00 p.m., the

appellants along with two other accused entered the textile shop of the defacto

complainant/PW1 situated at Ambour Salai, Puducherry. The 1 st appellant is a

well known person in that locality. The appellants purchased ready made cloths

worth of Rs.15,000/- (Rupees fifteen thousand only) in PW1's shop. When

PW1 asked for money for the clothes purchased by showing the bill receipts

(Ex.P2), the 1st appellant threw the bills (Ex.P2) on his face, took away the

articles by brandishing two knifes and fled away from the shop. This was

witnessed by PW2, the Salesman in PW1's shop and PW3, a customer in PW1's

shop. A complaint (Ex.P1) was lodged by PW1 to PW6, Assistant Sub

Inspector of Police attached to the respondent Police Station. On receipt of the

complaint, PW6 visited the scene of occurrence (PW1's shop), collected the bill

receipts (Ex.P2), prepared Observation Mahazar, Rough Sketch (Ex.P4) in

presence of PW3, arrested A2, A4 to A6 on 12.11.2014. In presence of PW4,

A2 gave confession statement, which was marked as Ex.P6. Pursuant to his

confession statement (Ex.P6), MO1 to MO3 were recovered. During https://www.mhc.tn.gov.in/judis Page No.2/14 CRL.A.No.147 of 2015

investigation, A3 surrendered and obtained bail from the concerned Court.

Thereupon, A1 was arrested on 05.01.2015. Pursuant to A1's confession

statement (Ex.P8), MO4 and MO5 were recovered in presence of PW5.

Initially, the investigation was carried out by PW7, Sub Inspector of Police and

on his transfer, PW8, the Inspector of Police conducted further investigation and

filed the charge sheet before the learned Judicial Magistrate No.II, Puducherry

and it was taken on file as P.R.C.No.14 of 2012. On committal, the case was

transferred to the trial Court and renumbered as S.C.No.55 of 2014.

3.To prove the guilt of the accused, on the side of the prosecution, as

many as 8 witnesses examined as PW1 to PW8 and 8 documents marked as

Exs.P1 to P8 and 9 Material Objects marked as MO1 to MO9. On the side of

the accused, one witness examined as DW1 and one document marked as

Ex.D1.

4.When the accused were questioned under Section 313 Cr.P.C., about

the incriminating circumstances appearing against them, they denied the same.

5.The trial Court, on the basis of the oral and documentary evidence,

acquitted A3 and A6 and convicted and sentenced the appellants as aforesaid https://www.mhc.tn.gov.in/judis Page No.3/14 CRL.A.No.147 of 2015

and challenging the legality of the said conviction and sentence, the present

appeal has been filed by the appellants.

6.The submissions of the learned counsel for the appellants are as

follows:-

(i)In this case, PW1/defacto complainant admitted that he could not

identify the Material Objects (MO1 to MO9), which were collected and marked

in this case. In the case of dacoity, the identification of the seized articles will

confirm the act and role played by the accused, which is an important linking

material. PW1 confirmed that the knife (MO1) produced is not the knife which

was used by the accused during the occurrence. In this case, the bills receipts

(Ex.P2), were not signed by any one from PW1's textile shop and the

description of the Material Objects not properly recorded. He further submitted

that the bill receipts (Ex.P2) is a got up document for the purpose of the case.

The bill receipts (4 in Nos.) (Ex.P2) are not serially numbered. The first bill

number is 1658, second one is 1662, third one is 1663 and fourth one is 1664.

PW1 admitted that the bills are used serially and there is no reason given to

whom the bill Nos.1659 & 1661 issued. Further, in the bill receipts (Ex.P2), it

is not mentioned that what are the articles purchased by the appellants in PW1's

shop. PW1 admitted that all the accused were identified by him in the Police https://www.mhc.tn.gov.in/judis Page No.4/14 CRL.A.No.147 of 2015

Station, which is confirmed by PW6, the Assistant Sub Inspector of Police.

Further, in this case, no Test Identification Parade was conducted to confirm the

identity of the accused.

(ii)The learned counsel further submitted that in this case, PW4 and PW5

are the witnesses for the arrest and confession statements (Exs.P6 & P8) of the

1st and 2nd appellants. PW4 and PW5 admitted that they were standing outside

the house of 1st and 2nd appellants/A1 and A2, from where the Material Objects

were recovered. It was the Police, who seized the Material Objects (MO1 to

MO9). While this being so, they cannot be witness for recovery and seizure of

the Material Objects (MO1 to MO9). PW1 in his complaint as well as in his

evidence admitted that at the time of occurrence, his elder brother Sriram and

his mother were present in his textile shop, but none of them examined as

witness, on the side of the prosecution. PW2 is the Salesman in the textile shop

of PW1, who has not supported the case of the prosecution and turned hostile.

During trial, the mother of PW1 was examined as DW1, through whom the Bill

No.3999, dated 17.01.2015 was marked as Ex.D1. DW1 does not identify the

accused, despite she was present at the time of occurrence. The other

eyewitness to the occurrence is PW3, whose evidence is unbelievable and highly

artificial. PW3 stated that he is a Reporter and Social Worker and, was present https://www.mhc.tn.gov.in/judis Page No.5/14 CRL.A.No.147 of 2015

at the time of occurrence. He further stated that only two persons brandishing

the knife, took away the articles from PW1's shop. With regard to other

accused, he does not say anything. He further stated that at about 06.30 p.m.,

he entered the textile shop of PW1, at that time the occurrence took place. The

FIR in this case shows that the information was received by the Police at about

06.10 hours. Thus, the presence of PW3 in the textile shop of PW1 at about

06.30 p.m., is highly doubtful. PW1 stated that he informed the emergency

Police and thereafter, the Police came to his shop, received the complaint and

proceeded with the investigation. On the other hand, PW6 stated that PW1

came to the Police Station and gave a complaint (Ex.P1) along with the bill

receipts (Ex.P2). This vital contradictions will disprove the entire case of the

prosecution.

(iii)The learned counsel further submitted that in the Alteration Report,

seven persons are shown as accused, in which one Thirumoorthy was shown as

A4. His name was not found in the charge sheet and he is neither an accused,

nor a witness to this case. The respondent Police, without giving any reason,

deleted the name of Thirumoorthy and filed the charge sheet before the trial

Court. In the complaint (Ex.P1), PW1 refers to only four persons, who came to

his shop and took away the articles by brandishing the knifes. In his evidence, https://www.mhc.tn.gov.in/judis Page No.6/14 CRL.A.No.147 of 2015

he stated that he is unable to identify the other two persons, who were standing

outside. Accepting the same, the trial Court acquitted A3 and A6. Section 391

Cr.P.C., states that 'when five or more persons conjointly commit or attempt to

commit a robbery, or where the whole number of persons conjointly

committing or attempting to commit a robbery, and persons present and

aiding such commission or attempt, amount to five or more, every person so

committing, attempting or aiding, is said to commit “dacoity”'. In this case,

only four persons were convicted and sentenced for the offence of dacoity. In

view of the same, the appellants cannot be convicted under Section 395 IPC.

Ex.D1 was marked to prove the fact that the bill receipts (Ex.P2) is a got up

one. In Ex.D1, the signature of the Salesman (PW2) as well as the description

of the articles purchased, are clearly mentioned.

(iv)The learned counsel further submitted that earlier, PW4 was

employed under PW1 and PW5 is a street vendor, who is at the mercy of the

Police. Thus, the seizure of Material Objects in presence of PW4 and PW5

becomes highly doubtful and further, the seizure was not done in presence of

independent witnesses. The Observation Mahazar and Rough Sketch (Ex.P4)

does not give any correct details of PW1's shop. In this case, the FIR was

registered on 05.11.2011, but it reaches the trial Court with delay of three days https://www.mhc.tn.gov.in/judis Page No.7/14 CRL.A.No.147 of 2015

on 08.11.2011, for which, no reason given. Initially, the FIR was registered

against the accused for offence, under Section 386 r/w 34 IPC and the

Alteration Report was prepared on 12.11.2011. While this being so, in the

Seizure Mahazar (Ex.P5) for MO1 to MO4, dated 05.11.2011, the offence

under Section 395 IPC is included. Thus, the investigation was not conducted

in fair and proper manner, the documents were prepared to suit the case of the

prosecution. PW1 admitted that he identified the accused in the Police Station

at the instance of the Police, which is confirmed by PW6. Added to it, MO2 to

MO4 and MO6 to MO9 does not correlate with the bill receipts (Ex.P2) and the

same were not identified by PW1. Thus, the trial Court failed to look into these

aspects and merely convicted and sentenced the appellants.

(v)In support of his submission, the learned counsel for the appellants

relied on the decision in the cases of “Manmeet Singh Alias Goldie Versus

State of Punjab in Criminal Appeal No.505 of 2015, dated 24.03.2015” and

“Balba and Others Versus State of U.P in Criminal Appeal No.648 of 1983,

dated 09.07.2020” for the point that with reference to the offence of dacoity

under Section 395 IPC, there should be five or more persons committed the

offence.

https://www.mhc.tn.gov.in/judis Page No.8/14 CRL.A.No.147 of 2015

7.Per contra, the learned Public Prosecutor, Puducherry appearing for

the respondent Police submitted that on the complaint (Ex.P1) of PW1, a case

in Crime No.491 of 2011 was registered by PW6. Thereafter, PW6 took up the

investigation, visited the scene of occurrence, examined the witnesses present in

the scene, recorded their statement, prepared Observation Mahazar, Rough

Sketch (Ex.P4), arrested A1, A2, A4 to A6 in presence of PW4 and PW5. In

presence of PW4, A2 gave confession statement, which was marked as Ex.P6.

Pursuant to his confession statement (Ex.P6), MO1 to MO3 were seized

through the Seizure Mahazar (Ex.P5). Thereafter, A1 was arrested in presence

of PW5. Pursuant to his confession statement (Ex.P8), MO5 and MO9 were

seized through Seizure Mahazar (Ex.P7). In this case, A3 surrendered and

obtained bail from the concerned Court. PW1 and PW3 have spoken about the

occurrence took place on 05.11.2011. The evidence of PW3 is natural, who

came to PW1's shop for purchasing articles. He further submitted that PW6

arrested the accused and PW1 identified them in the Police Station. Thereupon,

PW6 handed over the investigation to PW7, who conducted major portion of the

investigation and on his transfer, he handed over the case diary to PW8. PW8

conducted further investigation and filed charge sheet before the learned Judicial

Magistrate No.II, Puducherry and thereafter, the case was committed to the

Court of Sessions. During trial, PW1 to PW8 examined and Exs.P1 to P8 https://www.mhc.tn.gov.in/judis Page No.9/14 CRL.A.No.147 of 2015

marked and MO1 to MO9 marked on the side of the prosecution. On the side

of the defence, DW1, the mother of PW1 was examined, through her Ex.D1

was marked. DW1 stated about the occurrence, which had taken place on

05.11.2011. By examining DW1, the accused confirmed the occurrence and the

offence committed by them. Thus, the trial Court, on the evidence and materials

produced, had rightly convicted the appellants.

8.The Public Prosecutor placed reliance on the decision of the Hon'ble

Apex Court in the case of “Raj Kumar Alias Raju Versus State of Uttaranchal

reported in AIR 2008 SC 3248”.

9.This Court considered the rival submissions and perused the materials

available on record.

10.In this case, PW1 is the defacto complainant, in whose shop, the

appellants and other accused said to have committed the offence under Section

395 IPC. The 1st appellant/A1 is the known person in the locality, where the

PW1's textile shop is situated. The appellants entered into the textile shop of

PW1 along with other accused on 05.11.2011 at about 05.00 p.m., and

purchased ready made clothes valued around Rs.15,000/-. When PW1 gave bill https://www.mhc.tn.gov.in/judis Page No.10/14 CRL.A.No.147 of 2015

receipts (Ex.P2) for purchasing the articles to the 1st appellant, he threw the

same on the face of PW1 and took away the articles by brandishing two knifes.

In this case, PW1 admitted that the accused were shown and identified by him

in the Police Station and the same is confirmed by PW6, the Assistant Sub

Inspector. The FIR in Crime No.491 of 2011 was registered by PW6.

Admittedly, in this case, no Test Identification Parade was conducted.

11.PW1 in his evidence stated that nearby shopkeepers informed

emergency Police and the Police reached his textile shop immediately and

proceeded with the investigation. Contrary to the same, PW6 in his evidence

stated that PW1 came to the Police Station and gave a written complaint

(Ex.P1) along with bill receipts (Ex.P2) series. The other witnesses, who were

present at the time of occurrence are PW2 and PW3. During trial, PW2 failed

to support the case of the prosecution and turned hostile. PW3 in his evidence

stated that when the occurrence took place, he was present in the PW1's textile

shop and the Police reached PW1's shop by 06.30 p.m. On perusal of FIR in

Crime No.491 of 2011, it is seen that the occurrence had taken place at about

05.00 p.m., and the Police received information at about 06.10 p.m., and FIR

was registered. If that is so, the presence of PW3 in the scene of occurrence is

highly doubtful. PW3 stated about only two persons who were present in the https://www.mhc.tn.gov.in/judis Page No.11/14 CRL.A.No.147 of 2015

shop and committed the offence and he is silent about the other accused. PW4

and PW5 are the witnesses to the arrest and confession statements (Exs.P6 &

P8) of A1, A2, A4 to A6. PW4 and PW5 admitted that both of them were

standing outside of the house of the 1 st and 2nd appellants, it was the Police who

entered the house and seized the Material Objects (MO1 to MO9) in this case.

Hence, PW4 and PW5 cannot be termed as witnesses to the seizure of articles.

More so, PW1 is unable to identify the Material Objects during trial. Thus, the

Material Objects (MO1 to MO9) collected by the prosecution are not supported

by any witness or document. From the Alteration Report, it is seen that totally

seven persons shown as accused, in which one Thirumoorthy was shown as A4.

The respondent Police, without any reason, deleted the name of Thirumoorthy

and filed the charge sheet before the concerned Court.

12.The trial Court on appreciation of evidence and materials, acquitted

two accused A3 and A6 and convicted four persons, the appellants herein under

Section 395 IPC. The primary requirement to convict a person under Section

395 IPC is that five or more persons who conjointly said to have committed the

offence. In this case, the prosecution has failed to either prove the participation

of five or more persons in the commission of offence or establish their identity.

The Material Objects seized are not identified to link and connect the accused to https://www.mhc.tn.gov.in/judis Page No.12/14 CRL.A.No.147 of 2015

the crime, which is an important factor in a case of dacoity. Further, the seizure

of Material Objects are highly doubtful and the identify of the accused creates

doubt in the absence of Test Identification Parade. The above mentioned vital

aspects have not been considered by the trial court while appreciating the

prosecution evidence. In such circumstances, the conviction and sentence

passed against the appellants by the trial Court for offence under Section 395

IPC, cannot be sustained in law and the same is liable to be interfered with.

13.Consequently, this Criminal Appeal is allowed. The judgment of

conviction and sentence passed against the appellant/accused by the trial court

in S.C.No.55 of 2014 for the offence punishable under Section 395 IPC is set

aside. The appellants are acquitted from the aforesaid offence. The bail bond

executed by them are cancelled and they are set at liberty. Fine amount, if any,

paid by them, shall be refunded.

22.03.2022

Speaking Order/Non Speaking Order Index : Yes/No Internet : Yes/No vv2

https://www.mhc.tn.gov.in/judis Page No.13/14 CRL.A.No.147 of 2015

M.NIRMAL KUMAR, J.

vv2

To

1.The Principal Sessions Court, Puducherry.

2.The Station House Officer, Grand Bazaar P.S., Puducherry.

3.The Public Prosecutor, High Court, Madras.

CRL.A.No.147 of 2015

22.03.2022

https://www.mhc.tn.gov.in/judis Page No.14/14