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JAGANNATHAN V/S STATE REP. BY INSPECTOR OF POLICE , decided on Wednesday, February 13, 2008.
[ In the High Court of Madras, Criminal Appeal No.918 of 2007 . ] 13/02/2008
Judge(s) : D. MURUGESAN & V. PERIYA KARUPPIAH
Advocate(s) : C.D. Johnson. P. Kumaresan Additional Public Prosecutor.
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    Criminal Procedure Code - Section 374(2) ? Indian Penal Code - Sections 394 397 and 34 - Criminal Appeal - against the conviction by Sessions Judge - sentenced accused life imprisonment -accused kicked the motorcycle and forcibly removed the gold chain of his wife - according to the appellant / fourth accused he is only present at the time of incident - medical evidence shows that injured have only simple injuries and if so the conviction only under section 392 with 394 IPC. Court held that common intention to all accused - conviction of appellant/A4 under sections 394 read with 397 IPC is set aside and A4 - guilty for the offence under section 394 read with 397 read with 34 IPC as the conviction of A1 A2 and A3 - rigorous imprisonment for ten years. Appeal partly allowed.     (Appeal filed under Section 374 (2) Cr.P.C. against the conviction and sentence imposed upon the appellant by the learned Additional District Sessions Judge (Fast Track Court) Namakkal in S.C.No.101 of 2002 dated 10.01.2003.)V. Periya Karuppiah J.This appeal is directed against the judgment of conviction and sentenced passed by the learned Additional District Sessions Judge Namakkal in S.C.No.101 of 2002 by its judgment dated 10.01.2003 sentencing A4 to undergo life imprisonment under section 394 read with 397 IPC and also to pay a sum of Rs.5 000/- fine and in default to undergo one year rigorous imprisonment.2. The case of the prosecution is that on 15.02.1999 in the Vellore to Namakkal Main Road near Thirumanimuthar in Paramathi at about 8.45 p.m the accused 1 to 4 came in a motorcycle and enquired PW.1 about a Kalyanamandapam at Maravapalayam and by having conversation they had accompanied PW.1 and PW.2 who were traveling in another motorcycle and when they were nearing the bridge at Thirumanimuthar A1 kicked the motorcycle of PW.1 and made PW.2 to fell down. Thereafter the accused had stopped the motorcycle in which PW.1 was riding by going its opposite side and immediately all the four accused surrounded them with patta knife by putting knife on his right hand asked him to give the money he had. PW.1 after vexation and hesitation took a sum of Rs.460/- from his shirt inside pocket and gave it to them. Thereafter the accused asked PW.2 to give all the jewelleries she was wearing and having said so A1 forcibly removed the gold chain found around PW.2s neck and A1 pressed the knife on the right side of his stomach from which the blood was bleeding. PW.1 suffered pleading injuries on the palm index finger and thumb and ultimately all the four accused went towards west in their motor cycle.3. The prosecution had examined PW.1 to PW.8 and had admitted Ex.P1 to Ex.P11 and M.Os.1 to 11 in order to prove its case.4. The case of the prosecution as submitted by the witnesses are as follows:4(a) P.W.2 is the wife of P.W.1. Her evidence shows that as she and her husband were going via Paramathi Bye-Pass Road all the four accused came from behind in a motor cycle and they asked her husband as to where the Kalyana Mandapam is? Her husband answered that he did not know and five minutes later the occurrence took place as spoken to by P.W.1. She would also state that from the headlight of the vehicle in her husbands possession they noticed the registration number of the vehicle in which the accused came. From the police station they were sent to the hospital. P.W.7 is the Sub-Inspector of Police in the Investigating Police Station. At 9.30 p.m on 15.02.1999 P.Ws. 1 and 2 appeared before him with injuries and P.W.1 narrated the complaint which he reduced into writing. He read it over to him and then took his signature in it. P.W.2 attested it as a witness. He registered that complaint as Ex.P.1 in Crime No. 87/1999 for an offence under section 394 IPC. Then he sent both the injured with a medical memo to the hospital. Ex.P9 is the printed First Information Report. He sent the express records to the Court as well as to the higher officials. P.W.8 is the Investigating Officer. On receipt of the express records in this case he commenced the investigation. He reached the scene of occurrence and prepared Ex.P3 the Observation Mahazar in the presence of P.W.4 and another. P.W.4 witnessed the preparation of Ex.P3 (Observation Mahazar). Ex.P10 is the rough sketch prepared by P.W.8. Then by examining P.Ws.1 2 3 and others he recorded their statements. At about 2.00 p.m on 16.02.1999 he arrested the accused in the presence of P.W.5 when they were coming in the Yamaha Motor Cycle bearing Registration No.TN-28-8585. He examined them in the presence of P.W.5. At that time A1 gave a voluntary confession statement for self and on behalf of the other accused. Ex.P11 is the admissible portion of the confession statement of A1. Pursuant to Ex.P.11 M.Os. 1 to 10 came to be recovered under Ex.P.5 (Mahazar). At 5.30 p.m on that day another motor cycle (M.O.11) bearing Registration No. TN-45-2235 came to be recovered at the instance of A1 under Ex.P6 attested by the same witnesses. He then sent the accused for judicial remand and sent the case properties to the court.4(b) P.W.5 witnessed the arrest of the accused; their examination; recording the voluntary confession statement of A1 and recovery of the incriminating objects as spoken to by P.W.8 the Investigating Officer. P.W.6 is the Doctor in the Government Hospital. At about 11.00 p.m on 15.02.1999 P.Ws. 1 and 2 were brought before him for treatment. P.W.1 told him that he came to sustain the injuries when he was coming with his wife in a motor cycle at about 8.30 p.m in the Paramathi Bye-Pass Road at the hands of four unknown persons by kicking him and by using knife. On examining him he found the symptoms as noted by him in Ex.P7 the Accident Register. The symptoms noted therein are as hereunder: 1) Incised injury 2 x ? x ? Right Palm. 2) Incised injury ? x ? x ? right index finger. 3) Incised injury ? x ? x ? right thumb. 4) Abrasion ? x 1 right side of neck.P.W.6 opined that the injuries found on P.W.1 are simple in nature. At 11.10 p.m on the same day he examined P.W.2 who also disclosed that she came to sustain the injuries in the manner spoken to by P.W.1. On her he found the symptoms as noted by him in Ex.P8 the Accident Register. The symptoms are as hereunder:-1) Abrasion 2 x 2 left elbow.2) Abrasion 2 x 2 right knee joint.3) Abrasion ? x ? x ? nape of neck.4) Pain and parapsis over neck.He opined that the injuries are simple in nature. At 11.00 p.m on 16.02.1999 P.Ws.1 and 2 came to the police station and identified the accused and the case properties. After completing all the other legal formalities he filed the final report in court against the accused on 19.03.1999 for offences under sections 394 and 397 IPC. When the accused were questioned under section 313 of the Code of Criminal Procedure on the basis of the incriminating materials made available against them they denied each and every circumstance put up against them as false and contrary to facts. As already stated neither oral nor documentary evidence was brought before court at their instance.5. The learned counsel for the appellant / fourth accused Mr.C.D.Jonhson would submit in his argument that even assuming that the entire prosecution case is true the conviction of the accused under section 397 IPC cannot be sustained since the medical evidence shows that P.Ws 1 and 2 have sustained only simple injuries and if that is so the conviction against the accused can be brought only under section 392 read with 394 IPC. He would further submit in his argument that the co-accused A1 to A3 had preferred appeals against the impugned judgments in Crl.A.No.450 of 2003 by A1 and Crl.A.No.897 of 2003 by A2 and A3 and the said appeals were disposed of by the High Court on 25.04.2006 and in the said judgment it has been categorically found that all the four accused have got similar overt act against the witnesses and the evidence of Doctor PW.6 who treated P.Ws. 1 and 2 had opined that the witnesses have sustained simple injuries and however found that all the accused A1 to A4 had involved in the crime of committing dacoity against P.Ws. 1 and 2 and the arrest of the accused and the recovery of the incriminating objects would also go to show the involvement of the accused in the crime and finally the question of conviction of A1 to A3 was considered and the conviction of the accused under sections 394 read with 397 IPC was set aside and instead the accused are found guilty of offence under sections 394 read with 397 read with 34 IPC and each of them will stand sentenced to undergo Rigorous imprisonment for 10 years and the fine amount already imposed was ordered to be retained. He would further submit that the present appellant figuring as A4 is also on the same footing like that of A1 to A3 and the judgment passed by this Court against A1 to A3 may be applied to the appellant also and accordingly conviction and sentence may be set aside and the modified conviction and sentence may be imposed against this appellant also.6. Learned Additional Public Prosecutor Mr. Kumaresan would submit in his argument that the co-accused A1 to A3 have preferred appeals before this Court and accordingly their case was considered by this Court and the conviction and sentence were modified as submitted by the learned counsel for the appellant. He would further submit that A1 was having specific overt act and A2 to A4 were present along with A1 and therefore the act of A1 may not be equated with A4 and therefore the appellant cannot ask for the equal treatment as per the Judgment of the Honble Supreme Court. Further he would submit that this Court had already discussed the common intention of committing offence under sections 394 read with 397 IPC and A1 to A3 were treated equally and the conviction and sentence was modified by this Court and therefore suitable orders may be passed in the light of the observation of the judgment made by the Honble Supreme Court of India.7. We have given anxious thoughts to the arguments advanced by both sides. This appeal is preferred by A4 against the conviction and sentence passed against him to undergo life imprisonment and also to pay a sum of Rs.5 000/- fine in default to undergo one year rigorous imprisonment under section 394 read with 397 IPC.8. According to the prosecution A1 accompanied by A2 to A4 who had rode over an Yamaha Motor cycle M.O.11 had with the use of patta knife intimidated PW.1 and PW.2 to part with a sum of Rs.460/- and the golden apparels worn by PW.2 which are produced as M.O.2 to M.O.10 had committed dacoity at the knife point and in the said process PW.1 and PW.2 were also caused bleeding injuries. The accused 1 to 3 were also convicted and sentenced to undergo life imprisonment and pay a fine of Rs.5 000/- and in default to undergo one year rigorous imprisonment for the offence under sections 394 read with 397 IPC and they preferred appeals before this Court in Crl.A.Nos.450 and 897 of 2003. Both the appeals were heard by this Court and on 25.04.2006 the judgments of conviction of all the accused for the offence under sections 394 read with 397 IPC was set aside and the accused were found guilty for the offence under sections 394 read with 397 read with 34 IPC and 10 years rigorous imprisonment was imposed against all the three accused (A1 to A3) and the fine amount paid by them was ordered to be retained.9. We have gone through the judgments passed by this Court in Crl.A.Nos.450 and 897 of 2003 dated 25.04.2006 carefully. This Court had already discussed and decided the points at issue even in the absence of A4 and that all the accused (A1 to A4) who were traveling in the M.O.11 Yamaha Motorcycle had committed equal guilt in committing dacoity against PW.1 and PW.2 since their common intention to do the offence was same. Therefore this Court had already come to a conclusion that all the four accused including A4 the present appellant were equally guilty in committing the offence against PW.1 and PW.2. It was also discussed that the common intention of A2 to A4 for the offence committed by A1 ought to be treated equally and accordingly this Court had come to a conclusion that no prejudice or injury will be caused to the accused in the event of the charge under sections 394 read with 397 IPC is modified into that of sections 394 read with 397 read with 34 IPC. Accordingly the sentence of 10 years Rigorous Imprisonment was passed against all the three accused i.e. A1 to A3 instead of the sentence of life imprisonment against the said accused. The facts and circumstances of the case and the finding of this Court in the said appeals would clinchingly show that the appellant herein i.e. A4 is also standing on the same footing like that of the other co-accused (A1 to A3) in the commission of offence against PW.1 and PW.2. This Court had already held that the conviction of all the four accused can be brought under sections 394 read with 397 read with 34 IPC. Therefore the benefit given by the said judgment by this Court to the absentee accused namely the appellant herein is certainly benevolent to the appellant herein. The said benefit has to be made available to the appellant i.e. A4 as per the dictum of our Honble Supreme Court made in several judgments.10. Therefore we are of the considered view that the appellant is entitled to the benefit of the judgment rendered by this Court in Crl.A.Nos.450 and 897 of 2003 dated 25.04.2006 and accordingly the conviction and sentence passed against the appellant A4 under sections 394 read with 397 IPC is set aside instead the accused A4 is found guilty for the offence under sections 394 read with 397 read with 34 IPC and for the said offence he stands sentenced to undergo rigorous imprisonment for ten years. The fine amount already imposed is retained.11. In fine the appeal is partly allowed and the sentence of life imprisonment is modified into one of ten years rigorous imprisonment. The fine already imposed and paid is retained.