Allowed

Shathurudeen v. State, Inspector of Police

Madras HC9 Apr 2011CRL A/656/2004

Case brief

AI extract

What is this about?

High Court allowed appeal of accused driver, acquitting him of dacoity charges due to lack of proof for conspiracy or active participation. Other appellants convicted for dacoity (Section 395 IPC) and rioted (Section 120-B, 450 IPC) were acquitted solely of the riot charge (Section 147 IPC) but their sentences confirmed for remaining offenses.

What did the court decide?

Appellant A6 acquitted; other appellants acquitted of Section 147 IPC charge but convicted of Sections 120-B, 450 and 395 IPC; sentences confirmed.

Shathurudeen Vs State, Inspector of Police — Cheating and Forgery | Madras HC (2011)

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BAIL SLIP

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The Appellants/Accused Nos.3,5 and 6 namely 1.Amirthalingam, S/o.Ramasamy 2.Surendran, S/o.Raja, 3.A.Ganesan, S/o.Ambalam where directed to be released on bail as per the Order of this Court dated 31.03.2004 in Crl.M.P.Nos.1260/2004, 1416/04 and 3307/04 in Crl.A.Nos,163/04, 177/04 and 407/04 respectively on the file of this Court.

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The Appellant/Accused No.2 namely; Shathurudeen S/o.Mohamed Ismail was directed to be released on bail as per the order of this Court dated 15.06.2004 in Crl.M.P.Nos.5749 of 2004 in Crl.A.No.656 of 2004 on the file of this Court.

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The Appellants/Accused Nos.A4, A7 and A8 namely; 1.Venthan, s/o.Rajendran 2.Siva Perumal @ Perumal S/o.Marudha Muthu Devar. 3.Sheik Hussain,S/o. Masthan were directed to be released on bail as per the order of this Court dated 23.04.2004 in Crl.M.P.Nos.4069 of 2004 and 4070 of 2004 in Crl.A.Nos.522 of 2004 and 524 of 2004 of 2004 on the file of this Court.

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 09..04..2011

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Shathurudeen [A2]

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... Appellant in Crl.A.No.656 of 2004 Amirthalingam [A3] ... Appellant in Crl.A.No.163 of 2004 Venthan [A4] ... Appellant in Crl.A.No.522 of 2004 Surendran [A5] ... Appellant in Crl.A.No.177 of 2004 A.Ganesan [A6] ... Appellant in Crl.A.No.407 of 2004 1.Siva Perumal @ Perumal [A7] 2.Sheik Hussain [A8] ... Appellants in Crl.A.No.524 of 2004

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-Versus-

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State by The Inspector of Police, Madathukulam Circle, Komaralingam Police Station, Coimbatore District.

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[Crime No.147 of 1996] ... Respondent in all Criminal Appeals https://hcservices.ecourts.gov.in/hcservices/

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Memorandum of Grounds of Criminal Appeals under Section 374 (2) of the Criminal Procedure Code against the judgement dated 27.01.2004 made in S.C.No.61 of 1997 on the file of the learned Additional District and Sessions Judge, Fast Track Court No.V, Coimbatore at Tirupur.

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For [A2]	Appellant in Crl.A.No.656 of 2004	: Mr.R.Karthikeyan [Legal Counsel]	Aid
For [A3]	Appellant in Crl.A.No.163 of 2004	: Mr.K.Ethirajalu [Legal Counsel]	Aid
For [A4]	Appellant in Crl.A.No.522 of 2004	: Mr.Philip Ravindran Jesud	oss
For [A5]	Appellant in Crl.A.No.177 of 2004	: Mr.A.K.S.Thahir Mr.A.S.Bilal	for
For [A6]	Appellant in Crl.A.No.407 of 2004	: Ms.K.Sumathi
For 2004	1^stAppellant in Crl.A.No.524 of [A7]	: Mr.R.Karthikeyan [Legal Counsel]	Aid
For 2004	2^ndAppellant in Crl.A.No.524 of [A8]	: Mr.M.G.L.Sankaran
For	Respondent in all Criminal Appeals COMMON JUD	: Mr.P.Kumaresan, Public Prosecutor, Assi by Mr.V.Rajagopal GEMENT	sted

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The appellants are A2 to A8 in S.C.No.61 of 1997 on the file of the learned Additional District and Sessions Judge, Fast Track Court No.V, Coimbatore at Tiruppur. They stand convicted for offences under Sections 120-B, 147, 395 and 450 of IPC. They have been sentenced to undergo R.I. 8 years and to pay a fine of Rs.1000/- for offence under Section 120-B of IPC; to undergo R.I. for 6 months for offence under Section 147 of IPC; to undergo R.I. for 8 years and to pay a fine of Rs.1000/- for offence under Section 395 of IPC; and to undergo R.I. for 8 years and to pay a fine of Rs.1000/- for offence under Section 450 of IPC. No default sentence imposed. Challenging the said conviction and sentence, A2 to A8 in S.C.No.61 of 1997 have come forward with these criminal appeals.

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Originally, the appellants were accused in PRC No.7 of 1997. Totally there were 11 accused in the said case. But, one of the accused by name Thangapandian @ Sankaranarayanan was absconding and therefore, the learned Magistrate split up the case as against him and committed the case against the rest of the 10 accused. On committal the case against the rest of the 10 accused including these appellants was made over to the Assistant Sessions Judge, Udumalpet, who framed charges against all the 10 accused. The case was thereafter transferred to the Additional District and Sessions Judge, Fast Track Court No.V, Coimbatore at Tirupur. After framing of charges, two accused by name Murugan and Ravi in https://hcservices.ecourts.gov.in/hcservices/ the said case were absconding. Therefore, the case against the said

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two accused was split up. The learned Additional Sessions Judge , therefore, rearranged the rank of the remaining 8 accused and proceeded with the trial in S.C.NO.61 of 1997. Accordingly, the trial commenced on 25.09.2003.

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In the mean while, the absconding accused by name Thangapandian @ Sankaranarayanan was secured and the case against him was also committed by the learned Magistrate and the same was in turn made over to the Additional Sessions Judge, FTC No.V, Coimbatore at Tirupur in S.C.No.11 of 2003. The learned Additional Sessions Judge, accordingly, framed charges. Since the accused denied the charges, the learned Additional Sessions Judge proceeded with the trial. The examination of witnesses in this case commenced on 20.11.2003 in S.C.No.11 of 2003.

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On completing the trial in both the cases, the learned Judge delivered a common judgement on 27.01.2004 convicting the appellants [A2 to A8 in S.C.No.61 of 1997] as well as the appellant in Crl.A.No.264 of 2004 [who is the sole accused in S.C.No.11 of 2003]. Challenging the conviction and sentence imposed against the accused in S.C.No.61 of 1997, they have preferred the present appeals in Crl.A.Nos.656, 163, 522, 177, 407 and 524 of 2004. As against the conviction and sentence imposed against the accused in S.C.No.11 of 2003, he has preferred Crl.A.No.264 of 2004.

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Since all these appeals have arisen out of a common judgement, I had an occasion to peruse the records and evidence, both oral and documentary, in both the cases. A perusal of the records in S.C.No.61 of 1997 reveal that there were a total number of 24 witnesses examined by the prosecution and 34 documents exhibited, besides 4 material objects. On the side of the defence, there were 2 witnesses examined and 2 documents exhibited. Insofar as the case in S.C.No.11 of 2003 is concerned, there were only 18 witnesses examined and 7 documents exhibited. No one was examined on the side of the defence and no document was exhibited. NO material object was marked.

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Some of the prosecution witnesses in S.C.No.61 of 1997 by name Kannadi Mani @ Ramasamy [P.W.6], Dhanam [P.W.7], Thangaraj [P.W.8], Palraj [P.W.12], Kayalvizhi [the learned Judicial Magistrate] who conducted test identification parade [P.W.13], Subramaniam, S/o.Ramalingam [P.W.11], Sakthivel [P.W.16], and Chandrasekaran [P.W.17] were not examined during trial in S.C.No.11 of 2003. As we have noticed, several incriminating documents including the complaint and the FIR exhibited in S.C.No.61 of 1997 were not exhibited in S.C.No.11 of 2003. But, curiously, the learned Additional Sessions Judge has considered the evidences, both oral and documentary, let in , in both cases including the defence witnesses cumulatively to deliver a common judgement holding the accused involved in both the cases guilty of charges framed against them. It is shocking to note that the evidences which were let in in one case were used against the accused in the https://hcservices.ecourts.gov.in/hcservices/ other case to hold him/them guilty. It is the fundamental

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principle of criminal law that the evidence recorded behind the back of an accused that too, in a different case is no evidence against him in the case in which he happens to be an accused. It is also yet another fundamental principle of criminal law that even in respect of evidence let in in a particular case , unless the same is put to the accused under Section 313 of Cr.P.C. the same cannot be used against him. But, it is highly unfortunate that the oral as well as the documentary evidences let in in one case have been used in the other case. It is needless to point out that the appellant/accused in S.C.NO.11 of 2003 had no occasion at all to know the oral evidence deposed to by the witnesses and the documents exhibited in the other case. Similarly, the accused in S.C.No.61 of 1997 had no occasion to know the evidence, both oral and documentary, let in in S.C.NO.11 of 2003. The accused in one case had, therefore, no occasion to cross examine or challenge the evidence let in in the other case and vice versa. Thus, it is very obvious that the judgement of the trial court convicting the accused both in S.C.No.61 of 1997 and S.C.No.11 of 2003 suffers from serious illegality which vitiates the judgements, but not the entire trials. In such circumstances, this court may have to set aside the judgements and remit both the cases to the trial court to deliver judgements afresh separately in both the cases on considering the evidence let in in the respective case. But, having regard to the time lapse as the occurrence was in the year 1996, I am of the considered view that the interest of justice would be best served , if I examine the evidences let in in each case separately to find out whether the conviction imposed on the respective accused could be sustained or not. In such view of the matter, I do not propose to remit both the cases for delivering judgement afresh in each case separately. Instead, I propose to deal with the appeals relating to S.C.No.61 of 1997 and the appeal relating to S.C.No.11 of 1997 separately strictly confining to the evidence let in in the respective case. Accordingly, I propose to deliver a judgement in Criminal Appeal No.264 of 2004 separately. This judgement governs Crl. A.Nos.656, 163, 522, 177, 407 and 524 of 2004 arising out of S.C.No.61 of 1997.

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The case of the prosecution in brief is as follows:P.W.1 was the President of Kumaralingam Village Panchayat in Udumalpet Taluk. He was residing at Samurayanpatti Village. He had two brothers by name Jothikannan and Senthilmurugan. All the three were living as a joint family. P.W.2 is his brother's son. P.W.4 is his brother's daughter. P.W.3 is the husband of P.W.4. P.W.5 is a housemaid at the house of P.W.1. P.W.6 is his neighbour. On 28.11.1996, P.Ws.1 to 6 were in the house of P.W.1 at Samurayanpatti Village. By about 8.00 a.m. a Mahindra Maxi Cab Van, green in colour, bearing Regn. No.TN 22 X 2889 came to the house of P.W.1 and the same was stopped in front of P.W.1's house just out side the compound wall. Nine persons got down from the van and came to the premises of P.W.1. All were dressed neatly and they gave a look of high officials. Three of them did not enter into the house and they waited on the varanda. Six of them entered into the house. They told P.W.1 and the other inmates that they https://hcservices.ecourts.gov.in/hcservices/ were officials from income tax department and that they had come to

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conduct income tax raid at the house of P.W.1. They had shown certain forms normally used by the office of the income tax department and the letter pads. By the appearance of the accused and from the way in which they talked and the documents namely forms from the income tax department which they had shown, P.Ws.1 to 6 believed that they were really from income tax department. Therefore, they allowed them to search the entire house. Three persons who were waiting out side did not allow anybody to enter into the house. Similarly, the six persons who entered into the house; who made house search did not allow the inmates to go out. After a thorough search, they found jewels weighing 325 sovereigns in the iron safe of P.W.1. They also found a cash of Rs.95,000/in the steel bureau. They took them and brought the same to the drawing hall. One of the persons displayed the jewels and the cash on the table in the drawing hall. Then, he entered the details of the jewels and the cash in a form. They gave a copy of the form to P.W.1 as though it was an official document for seizure of the jewels and cash from the house of P.W.1 and also the letter pad [Exs.P.2 and P.1]. Then, they put all the jewels and cash in a suitcase and brought the van to the portico. They told P.W.1 to come to the office of the income tax department in Chennai on 05.12.1996 for enquiry. They got into the van and went away with the looted jewels and cash. Few minutes thereafter, P.W.1 contacted his auditor Mr.Archunaraj [P.W.14] at Coimbatore over telephone. When P.W.1 told about the raid conducted , P.W.14 wanted P.W.1 to rush immediately to his office at Coimbatore along with the documents handed over by those persons during the occurrence. Immediately, P.W.1 and P.W.2 rushed to Coimbatore and met P.W.14. On seeing the letter pads and the forms of the income tax department, P.W.14 found that the said forms were not meant for income tax raid. Therefore, he suspected foul play and so, he immediately contacted the income tax officials at Coimbatore as well as at Chennai and P.W.14 was in turn informed that income tax officials did not make any such raid at the house of P.W.1. From this, P.W.1, P.W.2 and P.W.14 realised that the jewels and cash belonging to P.W.1 had been looted by unscrupulous elements. P.W.14 advised P.W.1 to go to police station. P.Ws.1 and 2 returned to Kumaralingam Town and preferred a complaint at 4.00 p.m. on 28.11.1996 at Kumaralingam Police Station. Ex.P.3 is the complaint. P.W.20, the then Sub Inspector of Police attached to Kumaralingam Police Station registered a case in Crime No.147 of 1996 for offences under Sections 419 and 420 of IPC. Ex.P.32 is the FIR. He forwarded the FIR and the complaint to the court immediately. He also forwarded Exs.P.1 and P.2 which were given by the culprits to P.W.1 and produced by P.W.1 along with Ex.P.3 complaint. Then, P.W.20 handed over the case for investigation to P.W.21. P.W.21 was the then Inspector of Police. On 28.11.1996, he took up the case for further investigation, proceeded to the place of occurrence. At 5.30 p.m. he visited the place of occurrence and prepared an observation mahazar [Ex.P.7] in the presence of P.W.11 and another witness. He also prepared a rough sketch [Ex.P.6] showing the place of occurrence.

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https://hcservices.ecourts.gov.in/hcservices/ 8. At the request of P.W.21, P.W.19, the Finger Print

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Expert attached to Coimbatore Finger Prints Bureau visited the scene of occurrence. When he examined a room in the ground floor of the house of P.W.1, he found five finger prints i.e. two finger prints on the steel bureau and three finger prints in the window in the first floor of the house. In the bathroom, precisely on the porcelain flush tank cover, he noticed yet another finger print. On the steel bureau which was kept in yet another room in the ground floor, he noticed two finger prints. Thus, totally, he found eight finger prints which he marked as S1 to S8. He took photographs of the said finger prints in scientific manner. Out of the eight chance finger prints, few chance prints did not tally with the finger prints of the inmates and thus they were the finger prints of strangers. In this regard, on 30.11.1996, he submitted his report under Ex.P.31 to P.W.23. P.W.21 examined P.Ws.1 to 6, P.W.11 and few more witnesses and recorded their statements. On 29.11.1996, he examined few more witnesses and recorded their statements. On 30.11.1996, he handed over the case for further investigation to P.W.23.

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Coming back to the investigation, P.W.23 took up the case for further investigation on 30.11.1996. On some reliable information, he proceeded to Chennai and at 8.00 p.m. at D.No.2/1 Thanikachalam Mudali Street, Peruambur, Chennai, he arrested Accused-Murugan [absconding accused]. On such arrest, he gave a voluntary confession in the presence of P.W.16 and another witness and the same was reduced into writing. In the said statement, he disclosed that he had hidden jewels and cash of Rs.7500/- in bureau at his house. He further disclosed that he would identify the accused Amanullah [A1 in S.C.No.61 of 1997]. Accordingly, at 9.30 p.m. on the same day, he took the police and the witnesses to his house and produced Items 3 to 28 , as many as 25 items of gold jewels [M.O.2] and cash of Rs.7,500/- [M.O.3]. P.W.23 recovered the same in the presence of P.W.16 and another witness under cover of Ex.P.9 mahazar. Then, he took P.W.23 to Madurai Sami Mada Street and identified the accused Amanullah [A1]. P.W.23 then arrested accused Amanullah [A1] at 10.45 p.m. Accused Amanullah also gave confession voluntarily and the same was reduced into writing in the presence of the same witnesses. In the said statement, he disclosed that he would produce the jewels and cash of Rs.3250/-. Accordingly, from his house he produced 5 items of gold jewels [items 29 to 33A in M.O.2]. P.W.23 recovered the same in the presence of P.W.16 and another witness under cover of Ex.P.11 mahazar. Then P.W.23 arrested Shathurudeen [A2] at the house of accused Amanullah in the presence of P.W.16 and another witness at about 12.15 a.m. on 01.12.1996. A2 gave a voluntary confession and the same was reduced into writing. In the said statement, he disclosed that he would produce the jewels and cash. Accordingly, from his house at Madurai Sami Mada Theru, Sembiam, Chennai, he produced 4 items of gold jewels and cash of Rs.7900/-. They were all recovered under Ex.P.13 mahazar. Jewels are Items 34 to 37 [M.O.2] and cash of Rs,7,900/[ [40 hundred rupees and 78 fifty rupees currencies] is Item No.38 [M.O.3]. Then, on information, P.W.23 proceeded to house at D.No.741/5, Arulappa Street, https://hcservices.ecourts.gov.in/hcservices/ G.K.M.Colony, Chennai, where P.W.23 arrested accused Amirthalingam

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[A3] at 2.15 p.m. He also gave a voluntary confession and the same was reduced into writing. In the said statement, he disclosed that he would produce the jewels and cash. Accordingly, he produced 7 items of gold jewels and cash of Rs.7,050/- P.W.23 recovered the same in the presence of P.W.16 and another witness under cover of Ex.P.15 mahazar. The jewels recovered from A3 are Items 39 to 45 [M.O.2] and cash of Rs.7,050/- [15 hundred rupees and 111 fifty rupees currencies] recovered from A3 is Item No.46 [M.O.3]. Then, P.W.23 arrested the accused – Ravi [absconding] from G.A. Road at 5.15 a.m. on 01.12.1996. On such arrest, accused Ravi also gave voluntary confession. P.W.23 recorded the same in the presence of P.W.16 and another in which the accused had disclosed that he would produce the jewels and cash. Accordingly, from house bearing D.No.178-A, G.A.Road, Tondaiyarpet, Chennai, he produced 9 items of gold jewels and cash of Rs.7,300/- At 5.15 p.m. P.W.23 recovered the same in the presence of P.W.16 and another witness. The jewels so recovered from Accused Ravi are items 47 to 55 [M.O.2] and cash [11 five hundred rupees , 14 hundred rupees and 8 fifty rupees currencies] is item No.56 [M.O.3]. Thereafter, P.W.23 proceeded to the house at D.No.741/5, Cross Street, Washermenpet, Chennai and arrested accused Vendan [A4] at 6.15 a.m. on such arrest, A4 also gave voluntary confession in which he disclosed that he would produce the jewels and cash. P.W.23 reduced the same into writing in the presence of P.W.16 and another witness. Accordingly, A4 led the police to the above address and produced 12 items of gold jewels and cash of Rs.6000/- . P.W.23 recovered the same under cover of Ex.P.19 mahazar in the presence of P.W.16 and another witness. The gold jewels are Items 57 to 68 [M.O.2] and cash of Rs.6000/- [ 54 hundred rupees and 12 fifty rupees currencies] is item No.69 [M.O.3]. Then, at 8.00 a.m. he proceeded to the back side of Kilpauk Police Station and arrested the accused Surendran [A5]. On such arrest, A5 gave a voluntary confession in the presence of P.W.16 and another witness and the same was reduced into writing. In the said statement, A5 disclosed that he would produce 4 items of gold jewels and cash of Rs.7500/- which were hidden in the house at D.No.576, Sakthi Street, Chennai. Accordingly, he produced 4 items of gold jewels and cash of Rs.7500/- in the presence of P.W.16 and another witness. P.W.23 recovered the same under cover of Ex.P21 mahazar. The gold jewels are Items 70 to 73 [M.O.2] and cash of Rs.7500/- [15 hundred rupees currencies] is item 73A [M.O.3]. Then taking all the accused and the seized articles, he returned to Kumaralingam Police Station. On 02.12.1996 at about 3.00 a.m. accused Ganesan [A6] voluntarily appeared before him at the police station. A6 also gave a voluntary confession. P.W.23 reduced the same into writing. In the said statement, A6 disclosed that he would produce the van bearing Regn. TN 22 X 2989. He further disclosed that in the van he had earlier affixed a sticker as if the registration number of the vehicle was TN 22 X 2889. [This portion of the confession, though not admissible, the trial court has erroneously admitted the same.]. On the basis of the said disclosure statement, A6 produced the van bearing Regn. Tn 22 X 2989 and trip sheet book for the said vehicle and trip sheet cum bill No.206. P.W.23 recovered the same in the https://hcservices.ecourts.gov.in/hcservices/ presence of P.W.16 and another witness under cover of Ex.P.23

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mahazar. Trip Sheet is Ex.P.33. Bill is Ex.P.34. The above said van is M.O.1. P.W.23 thereafter examined P.W.16 and one Sundararaj who were witnesses for the arrest of the accused and for the recovery of material objects and recorded their statements. P.W.23, thereafter, forwarded the accused for judicial remand and the properties to the court.

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Thereafter, P.W.24, the then Inspector of Police took up further investigation. On 03.12.1996, on information he proceeded to Sethur, Rajapalayam Taluk and from the house bearing D.No.48, Pillaimar Street, Sethur, he arrested accused Perumal @ Sivaperumal [A7]. On such arrest, A7 gave a voluntary confession in the presence of P.W.17 and one Radhakrishnan. P.W.24 reduced the same into writing. In the said statement, A7 disclosed that he would produce the jewels and cash. Accordingly, at 8.00 a.m. A7 produced a Tamil Nadu Police Sannad [Form No.47 GBP – Ms.112 – POL.B.36.9006-82 order No.320 Certificate issued under Act XXIV of 1859]. Then, he produced cash to the tune of Rs.5150/- from his house. P.W.24 recovered the same under Ex.P.26 mahazar in the presence of P.W.17 and another witness. The Sannath Form recovered from A7 is Ex.P.25 which is a certificate issued on 17.09.1987 certifying that A7 had been appointed as a member of District Police Force and he is invested with the powers, functions and privileges of a police officer. The said certificate has been issued by the Superintendent of Police, Railways Chennai. The cash of Rs.5,150/- [25 hundred rupees and 53 fifty rupees currencies] recovered from A7 is item 77 [M.O.3]. Then, in pursuance of his confession, A7 took the police to the house of his brother in law by name Kadarkarai from whom A7 got 6 items of gold jewels, cash of Rs.30,000/- and a black colour rexine bag and produced the same before P.W.24. P.W.24 in turn recovered them under Ex.P.28 mahazar in the presence of P.W.17 and another witness. The jewels recovered from A.7 are items 78 to 83 [M.O.2], cash of Rs.30,000/[60 five hundred rupees currencies] is item No.84 [M.O.3] and the rexine bag is M.O.4. Then, A7 took the police and the witnesses to the shop of Palraj [P.W.12] from whom at 9.30 a.m he got 9 items of gold jewels which had been sold by A7 to P.W.12. P.W.24 recovered the same under cover of Ex.P.27 mahazar. Items 86 to 94 are the gold jewels so recovered. P.W.24 thereafter, examined the attesting witnesses P.W.12 and one Radhakrishnan and recorded their statements. Then, P.W.24 returned to the police station along with A7 and the properties seized and sent the accused to court for judicial remand. He also forwarded materials objects to the court under Form-95.

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In continuation of his investigation, on 06.12.1996, on reliable information, P.W.24 proceeded to Thiruvarur Aathukkulam South Bank and at Door No.56, Pillayar Koil Street, where he arrested the accused Sheik Hussain [A8] in the presence of P.W.18 and another witness. On such arrest, he gave a voluntary confession in which he disclosed that he would produce the jewels and cash to the tune of Rs.4,160/- The said statement was reduced into writing. In pursuance of the said statement, A8 produced 10 items of gold https://hcservices.ecourts.gov.in/hcservices/ jewels and cash of Rs.4,160/-. Accordingly, they were all recovered

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under cover of Ex.P.30 mahazar in the presence of P.W.18 and another witness. Items 95 to 104 in M.O.3 are the gold jewels [M.O.2] and item No.105 is cash of Rs.4,160/- [M.O.3]. P.W.24 then forwarded the accused to court for judicial remand.

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On 10.12.1996, P.W.24 gave a requisition to the Chief Judicial Magistrate to depute a Magistrate for conducting test identification parade. Accordingly, on 20.12.1996, P.W.13, the then Judicial Magistrate No.III at Pollachi conducted test identification parade in Central Prison at Coiombatore. During test identification, the accused – Murugan [Asbconding], Amanullah [A1], Shathurudeen [A2], Amirthalingam [A3], Ravi [absconding], Vendan [A4], Surendran [A5], Ganesan [A6], Perumal @ Sivaperumal [A7] and Sheik Hussain [A8] were put up for identification by P.Ws.1 to 3, 5, 6, 10 , 11 and one Sakthi Balan. In the said identification parade, P.W.1 identified all the accused except Amanullah [A1] and Surendran [A5] on all the three occasions. P.W.2 identified all the accused except Amanullah [A1] and Surendran [A5]. P.W.5 identified all the accused except Amanullah [A1] and Surendran [A5]. P.W.6 identified all the accused except Amanullah [A1] and Surendran [A5]. P.W.10 identified accused Amnullah [A1], Sathurudeen [A2], Ravi [absconding], Ganesan [A6] and Sheik Hussain [A8]. He did not identify the other accused. The other witness one Sakthibalan [not examined during trial] identified the accused Amanullah [A1], Murugan [absconding], Sheik Hussain [A8] and Ganesan [A6]. P.W.11 identified the accused Murugan [absconding], Amanullah [A1] Sathurudeen [A2], Ganesan [A6] and Sheik Hussain [A8]. He submitted a report under Ex.P.5 regarding the identification of the accused made by the witnesses.

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P.W.24, thereafter, examined P.W.10, P.W.11 and one Sakthibalan and recorded their statements. He proceeded to the lodge where the accused stayed on the previous night of the day of occurrence and recovered the lodge ledger under Ex.P.4 mahazar and examined P.W.10-Kabilan, the Manager of the lodge and recorded his statement.

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The finger prints of the accused were sent to P.W.19 for comparison with the chance finger prints lifted from the place of occurrence. P.W.19 compared the finger impressions of the accused Murugan [absconding], Surendran [A5], Amirthalingam [A3], Ravi [absconding], Ganesan [A6], Sathurudeen [A2], Vendan [A4], Amanullah [A1], Perumal @ Sivaperumal [A7] with S1 to S6 which were lifted from the house of P.W.1 as narrated above. On such comparison, P.W.19 found the finger impression of Vendan [A4] tallied with S3 to S5 lifted from the place of occurrence. The chance prints S1, S2 and S6 did not tally with the finger prints of the above accused. On 11.12.1996, the finger prints of accused Sheik Hussain [A8] were taken and sent for comparison. P.W.19 compared the same with S1, S2 and S6 and found that the chance print S6 tallied with the finger print of the said accused. S1 and S2 did not tally with his finger prints. He submitted a report in this regard on 11.12.1996 along with enlarged photographs of the https://hcservices.ecourts.gov.in/hcservices/ finger prints and chance prints lifted at the house of P.W.1 for

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comparison. P.W.24 examined P.W.19, the finger print expert and recorded his statement. Then, he examined an officer from the income tax department [P.W.22] and recorded his statement. On completing the investigation, he laid the final report on 31.01.1997 against all the accused for offences under Sections 120B, 147, 450 and 395 of IPC.

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Based on the above materials, the trial court framed charges against the appellants. Since the appellants denied the charges, the trial court proceeded with the trial. During trial, on the side of the prosecution, as many as 24 witnesses were examined and 34 documents exhibited, besides 4 material objects.

¶37

As I have already narrated , P.Ws.1 to 6 have vividly narrated about the occurrence during trial. They have identified A2 - Sathurudeen, A3 – Amirthalingam, A4 – Vendan, A7 – Siva Perumal @ Perumal and A8 – Sheik Hussain. They have not identified the rest of the accused. P.Ws.1 to 6 have identified the properties recovered from the appellants as stolen articles and also the van involved in the crime. P.W.7 is the wife of P.W.1. On the date of occurrence, she was not at home. She came to know about the occurrence later. She has identified the jewels [M.O.2] as the jewels stolen away from her house. P.W.8 is a resident of the same village and he has got a tea shop at Udumalpet – Palani Road According to him, on 28.11.1996 from 5.00 a.m. he was in his shop. The said shop is situated somewhere near the house of P.W.1. According to him, he saw the van in question stopped in front of the house of P.W.1. He has identified M.O.1 as the van. According to him, he came to know that by impersonating as income tax officials some culprits had committed theft of properties from the house of P.W.1. P.W.9 is running a petty shop in Samurayanpatti Village. On the date of occurrence , at 8.30 a.m., the accused - Amanullah [A1] who was already known to him came to his shop. He has further deposed that he enquired him as to why did he come there. At that time, the van in question was passing through the shop. Accused – Amanullah [A1] made some signals to the inmates of the said vehicle. The vehicle proceeded towards Udumalpet. Then, the accused – Amanullah [A1] left by bus. He has identified M.O.1 van. P.W.10 is an important witness for the prosecution. P.W.10 is the Manager of the Lodge known as "Anandha Lodge" at Udumalpet. He has stated that on 27.01.1996, accused – Amanullah [A1] came to his lodge and booked two rooms stating that 10 persons who were his friends had come to stay. He allotted room Nos.103 and 205 for them to stay. The persons who came along with accused Amanullah [A1] appeared to be very smart portraying the look of police officials. The van in question bearing Regn. TN 22 X 2889 also came, in which, the said persons came to the lodge. He has identified M.O.1 as the van used for the said occurrence. Ex.P.4 is the Ledger. A2 - Sathurudeen entered his name as Thirugnanasambandam in the ledger giving his address as Pallivasal Street, Dindigul. He has identified A1, A2, A3, A4 and A6 as the persons who stayed in the lodge. He has further deposed that he had identified them in the test identification parade. P.W.11 is the proprietor of Ananda https://hcservices.ecourts.gov.in/hcservices/ Lodge. He has also spoken to about the booking of rooms. He had

¶38

seen the vehicle and has identified the same in court. He has identified A6 – Ganesan, A2 – Sathurudeen and A8 – Sheik Hussain in court. He had earlier identified them in the test identification parade also. P.W.12 has turned hostile. According to the case of the prosecution, on 29.11.1996, the Sivaperumal @ Perumal sold 84 sovereigns of gold jewels for Rs.31,400/-. But, he has disowned the same. P.W.13 is the learned Judicial Magistrate who has spoken to about the test identification parade conducted by her. P.W.14 is the auditor who has spoken to about the telephonic talk with him by P.W.1 and his verification with the income tax officials. P.W.15 has spoken to about the observation mahazar. P.W.16 is a witness for the arrest of the accused and the consequential recoveries of material objects in pursuance of the confession statements of the accused about which I have already made extensive reference in the previous paragraphs. P.W.17 has also spoken to about the arrest of the accused and the consequential recoveries of material objects in pursuance of the confession statements of the accused about which also I have already made a detailed reference. P.W.18 has spoken to about the arrest of the accused - Sheik Hussain [A8] and the consequential recovery of materials objects from him. P.W.19 is the Finger Print Expert. P.W.20 has spoken to about the registration of the case. P.W.21, P.W.23 and P.W.24 are the investigating officers. P.W.22 has stated that Exs.P.1 and P.2 are not forms used by the office of the income tax department, but, they are not used for the purpose of income tax raid.

¶39

When the incriminating materials were put to the accused under Section 313 of Cr.P.C. they denied the same as false. While questioning so, A6 gave a written statement of explanation, in which, he has stated that he did not know the other accused previously. He was working in the travel agency run by D.W.1. As directed by D.W.1, he took the van in question from Chennai to carry the passengers who hired the van and went to Udumalpet. He would further state that from Udumalpet, as directed by the passengers, he took the van to Samurayanpatti Village and stopped in front of a house and he was waiting inside the van without knowing as to what was going on inside the house. The passengers alone went into the house. After some time, they returned and they wanted him to proceed to Madurai. Accordingly, he went to Madurai. The passengers got down at Madurai and paid the hire. On 29.11.1996, in the morning newspaper he found that there was a news item alleging that the van in question was used by the culprits to commit the crime by impersonating themselves as Income Tax Officials. Immediately, he contacted D.W.1. D.W.1 in turn told him to surrender the van in question to the police immediately. Accordingly, he proceeded to the nearest police station at Thirupathur [near Madurai]. Thirupathur police in turn contacted Kumaralingam Police. Then, Thirupathur police wanted A6 to go to Kumaralingam Police Station. Accordingly, he proceeded to Kumaralingam Police Station on 30.11.1996. On his way, he gave telegrams [Exs.D1 and D2] to the higher police officials informing them that he had already produced the van in question and surrendered before Thirupathur Police. On the same day, he https://hcservices.ecourts.gov.in/hcservices/ reached Kumaralingam Police Station where he was asked to wait.

¶40

Then, on 02.12.1996, suddenly, the police arrested him as an accused in the case. A6 has further stated that he had no knowledge about the change of registration number of the van in question.

¶41

In support of his defence, A6 has examined two witnesses and exhibited two documents. D.W.1 is the Manager of Subam Travels in which A6 was working as driver. D.W.1 has deposed that on 26.11.1996, the proprietor of yet another travel agency by name Jeeva Travels, approached him and wanted him a maxi cab for hire since there were passengers to go to Coimbatore. He paid a sum of Rs.500/- as advance. Thereafter, D.W.1 sent the van bearing Regn. No. TN 22 X 2989 [M.O.1] as per the booking order. A6 – Ganasan was the driver of the van. On 27.11.1996, he instructed A6 to take the vehicle to the address of the passengers at Perambur, Chennai to take them to Coimbatore. Accordingly, A6 left in the morning on 27.11.1996. D.W.1 has further deposed to the fact that on 29.11.1996 he found a news item in the newspaper about the occurrence. But, there was no word from A6. Therefore, he gave the telegrams to the Inspector General of Police, Chennai and the other police officials in this regard with the help of Jeeva. While so, at 12.00 noon on 29.11.1996, A6 contacted him over phone from Madurai. A6 also told him about the news item to D.W.1. Immediately, D.W.1 instructed him to surrender before the police. When A6 asked D.W.1 whether to come to Chennai to surrender or to surrender at the nearest police station, D.W.1 instructed A6 to surrender at the nearest police station. A6 accordingly surrendered before Thirupathur Police along with the van which D.W.1 came to know later.

¶42

D.W.2 is the Assistant Post Master at Thirupathur Post Office in Sivaganga District. He has stated that on 30.11.1996 two telegrams were booked in the name of one Ganesan and they were addressed to higher police officials. Exs.D1 and D2 are the copies of the said telegrams.

¶43

Having considered the above , the trial court, rejected the explanation offered by A6 and the evidences of D.W.1 and 2 and convicted all the accused including A6 – Ganesan and sentenced them as narrated in the earlier paragraph of this judgement. That is how, the appellants are now before this court with these appeals.

¶44

The Advocates on record in Crl.A.Nos.656, 163 and 524 of 2004 did not make appearance despite the fact that the cases were listed for final hearing on many occasions. Bailable Warrants issued against the appellant in Crl.A.No.656 of 2004 and the 1^st appellant in Crl.A.No.524 of 2004 could not be executed and their whereabouts are not known. Similarly, when the appeal came up for hearing on 09.02.2011, the learned counsel who was on record for the appellant in Crl.A.No.163 of 2004 had reported no instruction and he had given his consent for change of vakalath. But, the learned counsel on record for the other appellants were ready with the cases. These appeals have been pending from the year 2004. https://hcservices.ecourts.gov.in/hcservices/ In view of the same, this court appointed a reputed Advocate

¶45

Mr.R.Karthikeyaran, who is having a vast experience in the criminal side as Legal Aid Counsel to defend the appellant in Crl.A.No.656 of 2004 and the 1^st appellant in Crl.A.No.524 of 2004. Similarly, yet another reputed Advocate Mr.K.Ethirajulu, who is having a vast experience in the criminal side was appointed as Legal Aid Counsel to defend the appellant in Crl.A.No.163 of 2004. Both the above said Legal Aid Counsel after collecting the papers from the court have meticulously prepared and argued the appeals. As a matter of fact, the argument went on for few days. I have heard the legal aid counsel, the learned counsel for the other appellants and also the learned Public Prosecutor for the State and also perused the records carefully.

¶46

There is no denial of the fact that nine persons came in the van excluding the driver and all such 9 persons indulged in crime. The prosecution has also proved the fact that by pretending themselves that they were all officials from income tax department, by force, they have looted M.O.2 jewels and M.O.3 cash from the house of P.W.1. This fact has been duly proved by the evidence of P.Ws.1 to 6 and corroborated by P.Ws.7 & 8.

¶47

So far as A1 - Amanullah is concerned, there is no appeal before this court and, therefore, I do not propose to deal with his case. As far as A2 – Sathurudeen, A3 - Amirthalingam, A4 – Vendan , A7 – Sivaperumal @ Perumal and A8 – Sheik Hussain are concerned, P.Ws.1 to 6 have clearly identified them in court. Such identification is duly corroborated by the other sources. The identification of A2, A3, A4, A7 and A8 made by these witnesses in court, since they were earlier identified by the eye witnesses in the identification parade, is duly corroborated by the above test identification proceedings. Therefore, there can be no difficulty in making full reliance of the identification of A2, A3, A4, A7 and A8 made in court by the eye witnesses.

¶48

Insofar as the identification of A-5 Surendran is concerned, the witnesses could not identify him during test identification parade as well as before the court. But the recovery of stolen jewels from this accused has been duly proved by the prosecution.

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Now, the question is whether the persons who came in the van and committed the crime are the appellants/A2 to A8. As I have already stated, A2, A3, A4, A7 & A8 were duly identified in court and they were the persons who indulged in the crime. On the arrest of these accused, they gave individual voluntary confessions in pursuance of which the jewels and cash which were stolen away from the house of P.W.1 were recovered. Though the attesting witnesses to the arrest of the accused and the consequential recoveries made pursuant to their confessions have been extensively cross examined, nothing could be brought on record to doubt their veracity. Therefore, in my considered opinion, the arrest of A2, A3, A4, A7 and A8 , their disclosure statements and the consequential recoveries of material objects namely stolen articles https://hcservices.ecourts.gov.in/hcservices/ and cash from their possession have also been duly proved by the

¶50

prosecution. I do not find any reason to reject the case of the prosecution in this regard. Thus, in my considered opinion, the case against A2, A3, A4 , A7 and A8 has been established by the prosecution beyond any reasonable doubt.

¶51

As far as A5 - Surendran is concerned, of course, it is true that eye witnesses have not identified him in court. They did identify him in the test identification parade also. But, there is evidence in respect of the arrest of A5 and the consequential recovery of material objects pursuant to the confession of the accused. Regarding the arrest of A5, according to P.W.22, he has arrested A5 on 01.12.1996 at 08.00 a.m. in the presence of P.W.16 and one Sundarrajan. On such arrest, he made voluntary disclosure, in which, he disclosed that he would produce a portion of gold necklace with white stone, yet another portion of gold jewels with white stones and a gold thali gundu and also a sum of Rs.7500/-. Based on the said confession, the above said articles were recovered from him at his house on 01.12.1986 at 8.30 under Ex.P.21. P.W.16 has vividly spoken about the same. Though he has been subjected to lengthy cross examination, nothing has been brought on record to discredit his evidence. His evidence is duly corroborated by the evidence of P.W.23. The jewels recovered from him have been identified as stolen articles by P.W.1 and other witnesses. Thus, it has been clearly established by the prosecution that A5 was found in possession of stolen articles soon after the occurrence. Therefore, legal presumption under Section 114(a) of the Evidence Act can be raised against A5 also. Though the said presumption is rebuttable, there is nothing on record to rebut the said presumption. Thus, from the said evidence, the prosecution has established that A5 also committed the crime.

¶52

The learned counsel for the appellants would submit that two witnesses namely P.W.16 and one Sundararaj have been used as omnibus witnesses for the arrest of Murugan [absconding accused], Amanullah [A2], Amirthalingam [A3], Ravi [absconding], Vendan [A4], Surendran [A5] and Ganesan [A6] and the alleged consequential recoveries made from them pursuant to their confessions; P.W.17 and one Radhakrishnan for the arrest of Sivaperumal @ Perumal [A7] and the consequential recovery made from him pursuant to his confession; P.W.18 and one Nachimuthu for the arrest of Sheik Hussain [A8] and the consequential recovery made from him pursuant to his confession and, therefore, their evidence cannot be given any weightage. In my considered opinion, the said argument is only liable to be rejected. It is quite natural for the investigating officer to take witnesses when series of recoveries are to be made.

¶53

The learned counsel for the appellant in Crl.A.No.177 of 2004 would submit that there is no evidence that A5 stayed in the lodge inasmuch as he has not been identified by the Manager of the lodge and the owner. Therefore, according to him, A5 is entitled for acquittal from charge under Section 120-B of IPC. In my considered opinion and as per the well settled position of law, https://hcservices.ecourts.gov.in/hcservices/ conspiracy cannot be proved by means of direct eye witness account

¶54

in all cases. Conspiracy is normally hatched in secrecy. Therefore, the conspiracy is a fact to be inferred from various circumstances. In the instant case, though A5 has not been identified by the lodge Owner and the Manager, it does not mean that he was not a member of the conspiracy. The fact that he accompanied the rest of the accused, came to the house of P.W.1 along with the other accused, looted the properties and the looted properties were found in his possession would give a necessary impeccable inference that he was also a member of the conspiracy.

¶55

Insofar as A4-Vendan is concerned, the learned counsel would submit that the arrest and recovery is doubtful. As far as this accused is concerned, P.W.16 has spoken to about the arrest of the accused. He has further spoken to about the recovery of material objects. P.W.23, the investigating officer has also spoken to about the same. There are no reasons to reject the said evidence.

¶56

The learned counsel would further contend that the photographs of the accused were appeared in the newspapers as well as in a local television channel. Therefore, no weightage could be attached to the identification parade. In this regard, I may state that though it has been elicited during cross examination that there were frequent news items appeared in a local television channel and in the newspapers, it is not in evidence that the photographs of the accused were shown to the witnesses or the photograph of the accused appeared in the local television channel and that the newspapers were seen by the witnesses. Therefore, this argument is also liable to be rejected.

¶57

The learned counsel would further submit that there is some contradiction between the evidences of the witnesses in respect of the time at which the jewels were shown to them at the police station. This contradiction is only immaterial as the same has not gone into the root of the prosecution case.

¶58

Coming to the case of A8, the learned counsel for the appellant/A8 would submit that though he was identified both in test identification parade as well in court, no weightage could be attached to the same inasmuch as the test identification parade was held belatedly. This argument also deserves only to be rejected. There had been no abnormal delay in holding the test identification parade.

¶59

As far as A2 is concerned, it is stated by P.W.10, the Manager of the lodge that it was A2 who made entries in the ledger giving a fictitious name. The learned counsel for the appellant/A8 would submit that since no handwriting expert has been examined to prove the writings of A2, the evidence of P.W.10, the Manager of the Lodge needs to be rejected. Of course, it is a flaw in the investigation, but the same will not in any manner go to create a doubt in the case of the prosecution.

¶60

https://hcservices.ecourts.gov.in/hcservices/ 34. Now, coming to the important piece of evidence of

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P.W.19, the Finger Print Expert, he has stated that the chance prints taken from the place of occurrence marked as S1 to S6 were compared with the finger prints of accused Vendan [A4] and Sheik Hussain [A8] and S3, S4, S5 and S6 tallied. These two accused have not offered any explanation as to how their finger prints could be found in the objects at the house of P.W.1. This clearly establishes the involvement of A4 and A8 in the crime. The learned counsel for the appellants are not in a position to explain the said position.

¶62

Lastly coming to the case of A6, it is his defence that he was an innocent driver in charge of the van in question. D.W.1 has stated that the proprietor of yet another travel agency booked the van for a customer for hire. At that time, A6 was not even present. On 27.11.1996, A6 was asked to take the van to Perambur to carry the passengers to go to Coimbatore. Absolutely, there is no evidence that he had any premeeting of mind with the other accused to know that the rest of the accused were proceeding to commit a crime. In the lodge at Udumalpet, he was found by P.W.10-Kabilan. A6 has not disputed his staying in the lodge along with the other accused. On the next day morning, he proceeded to Samurayanpatti as instructed by the passengers who engaged him. It is the case of the prosecution that the passengers in the van got down and went into the house of P.W.1. A6 was all along waiting in the van. Therefore, there was no material to infer that A6 knew as to what was going on inside the house of P.W.1. After the passengers returned, according to A6, they wanted him to go to Madurai. Accordingly, he proceeded to Madurai where the rest of the accused got down and paid the hire charges. It is the further defence of A6 that when he was returning form Madurai, he saw a new item in a daily newspaper about the occurrence. At this juncture, the further conduct of A6 assumes importance. Immediately, by about 12.00 noon he contacted D.W.1 over phone. He also wanted him to surrender. When A6 asked him as to whether to come to Chennai to surrender or to surrender at nearest police station, D.W.1 instructed him to surrender at nearest police station. It is needless to point out that from Madurai one has to come via Thirupathur. Therefore, he surrendered at Thirupatthur Police Station in Sivaganga District. This fact is established by two telegrams given by him on 30.11.1996. A6 was asked to stay in the police station for some time. On the next day, according to A6, Tirupathur Police after instruction from Kumaralingam Police instructed him to go to Kumaralingam Police Station. That is how, on the next day i.e., on 30.11.1996 , A6 gave telegrams which has been spoken to by D.W.2, the Assistant Post Master. It is the positive case of the prosecution itself that A6 appeared before Kumaralingam Police with the van. This conduct of the accused will only be consistent with his innocence. Had he colluded with the rest of the accused, he would not have surrendered either at Thirupathur Police Station or he would not have come to Kumaralingam police station to surrender that too with the van. Yet another important circumstance is that it is not the case of the prosecution that any stolen article was recovered from him. The https://hcservices.ecourts.gov.in/hcservices/ investigation has also not revealed that A6 shared any booty or he

¶63

received any extra amount for carrying the other accused. If really he was a party to the conspiracy and party to the other crimes, surely, he would have done so only for some benefit. The very fact that there was no benefit extended to him by the rest of the accused will go only to prove his innocence. The Inspector of Police has also deposed that while surrendering A6 produced the trip sheet and other relevant documents relating to the van. But, according to the police, he surrendered only on 02.12.1996. But, this version of the prosecution cannot believed in view of the two telegrams given as early as on 30.11.1996 to the higher police officials by this accused.

¶64

The only incriminating circumstance now available against A6 is that the number of the vehicle had been changed when it proceeded to the house of P.W.1. The original registration number of the van is TN 22 X 2989. But, when it came to the house of P.W.1, the registration number of the van was TN 22 X 2889. Thus, the number [TN 22 X 2889] has been mentioned even in the first information [Ex.P.3] itself. Therefore, A6 is bound to explain as to how the number of the van had been changed. He has explained the same in his statement filed under Section 313 of Cr.P.C. Changing the second digit in the registration number of the vehicle, namely 8 into 9, is very easy. As it is demonstrated by the learned counsel for the appellant/A6, even if a small black strip of paper is pasted, the digit '8' will appear to be digit '9'. Probably, without the knowledge of A6 , the other accused with a view to misdirect the witnesses and the police would have played mischief. Thus, absolutely, there is no evidence that A6 was responsible for the same. To repeat, there is no other evidence available on record as against A6 either to prove the conspiracy or his active participation in any other crimes committed by the rest of the accused. Thus, the prosecution has failed to prove the case against A6. In such view of the mater, he is entitled for acquittal and so the appeal in Crl.A.No.407 of 2004 deserves to be allowed.

¶65

The learned counsel for the appellants/A2 to A5, A7 & A8 would submit that assuming that the prosecution has proved that these accused have got involvement in the crime even then, the offences said to have been committed by the appellants/A2 to A5, A7 and A8 would not fall under Section 395 of IPC and instead, it would fall only under Section 419 of IPC. But, it is in evidence of P.W.2 and P.W.3 that some of the accused intimidated the witnesses not to raise any hue and cry and at that time they had pistols in their pockets. However, the witnesses had not actually seen any pistol. But, at the same time, it is the evidence of the eyewitnesses that they were not permitted to leave the house and they were wrongfully restrained.

¶66

Section 390 of Indian Penal Code defines 'robbery' as follows:-

¶67

"390. Robbery

¶68

In all robbery there is either theft https://hcservices.ecourts.gov.in/hcservices/ or extortion.

¶69

When theft is robbery. -Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carving away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily cause or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.

¶70

When extortion is robbery. Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.

¶71

Explanation. -The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint."

¶72

It is in evidence that P.Ws.1 to 6 were wrongfully restrained and the accused did not allow them to leave the house. Had they been so allowed to leave the house, they would have sought the help of the others or contacted their auditor. By wrongfully restraining them, the accused had committed theft. Therefore, the said theft is nothing short of robbery as defined in Section 390 of IPC. Since more than 5 persons were there , the offence committed by the accused is dacoity as defined in Section 390 of IPC which is punishable under Section 395 of IPC. The trial court has, therefore, rightly convicted A2 to A5, A7 & A8. Since the prosecution has proved that A2 to A5, A7 and A8 gained entry into the house of P.W.1 in order to commit an offence punishable under Section 395 of IPC for which life imprisonment is awardable, offence under Section 450 of IPC has also been clearly established. Similarly, the offence under Section 120-B of IPC has also been established. Thus, I hold that the conviction of A2 to A5 , A7 & A8 for offences under Section 120-B, 450 and 395 of IPC does not require any interference at the hands of this court. However, since there is conviction under Section 395 of IPC , the conviction under Section 147of IPC is not sustainable.

¶73

Now, coming to the quantum of punishment, the learned counsel for A5 would submit that during relevant period , he was working as a last grade servant in the Income Tax Department and, https://hcservices.ecourts.gov.in/hcservices/ therefore, leniency may be shown in the matter of punishment. A2

¶74

to A5, A7 and A8 are the main accused in the crime. Having regard to the gravity of offences, the value of the properties looted and all other attending circumstances, I am of the view quantum of punishment imposed by the trial court does not require any interference.

¶75

(i) In the result, Criminal Appeal No.407 of 2004 is allowed; the conviction and sentence imposed on the appellant – Ganesan [A6] by the trial court is set aside; and he is acquitted of all the charges. Fine, if any, paid by the appellant/A6 shall be refunded to him. The bail bond executed by the appellant/A6 shall stand discharged.

¶76

(ii) Criminal Appeal Nos.656, 163, 522, 177, and 524 of 2004 are partly allowed in the following terms:-

¶77

(a) The conviction of the appellants/A2 to A5, A7 & A8 for offence under Section 147 of IPC and the sentence imposed by the trial court thereunder are set aside. The appellants/A2 to A5, A7 & A8 are acquitted of the charge under Section 147 of IPC alone.

¶78

(b) The conviction of the appellants/A2 to A5, A7 & A8 for offences under Sections 120-B, 450 and 395 of IPC and the sentence imposed thereunder on the appellants/A2 to A5, A7 & A8 are confirmed. If the appellants fail to pay the fine imposed on them for offences under Section 120-B, 450 and 395 of IPC by the trial court, they shall undergo R.I. for six months each.

¶79

¶80

(d) The substantive sentence imposed on the appellants/ A2 to A5, A7 & A8 shall run concurrently.

¶81

(e) In all other respects the appeals in Crl.A.Nos.656, 163, 522, 177, and 524 of 2004 stand dismissed.

Sd/

Asst.Registrar

/true copy/

Sub Asst.Registrar

kmk

1.The Judicial Magistrate-I, Udumalaipettai.

¶89

2.The Chief Judicial Magistrate Coimbatore(for information) https://hcservices.ecourts.gov.in/hcservices/

¶90

3.The Additional District and Sessions Judge, Fast Track Court
No.V, Coimbatore at Tirupur.
4.The Principal Sessions Judge, Coimbatore(for information)
5.The Superintendent, Central Prison, Coimbatore.
6.The Superintendent, Central Prison, Vellore.
7.The Inspector of Police, Madathukulam Circle, Komaralingam
Police Station, Coimbatore District.
8.The Inspector of Police,
C-1, Flower Bazaar Police Station, Chennai.
9.The Officer in Charge,
C-1, Flower Bazaar Police Station, Chennai.
Copy to:
The Section Officer, Criminal Section,
High Court, Madras.
1 cc To Mr.K.Ethirajalu, Advocate, SR.25642
1 cc To Mr.Philip Ravindran, Advocate, SR.26504
1 cc To Mr.A.S.Bilal, Advocate, SR.26093
1 cc To Mr.K.Sumathi, Advocate, SR.25693
1 cc To Mr.M.G.L.Sankaran, Advocate, SR.26134
Criminal Appeal
Nos.656, 163, 522, 177,
407 and 524 of 2004
sai(co)
pmk.3.5.2011

¶91

https://hcservices.ecourts.gov.in/hcservices/

Shathurudeen v. State, Inspector of Police

Case brief

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Shathurudeen v. State, Inspector of Police

Case brief

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