Dharman @ Dharmaraj v. State

BAIL SLIPThe Appellant/Accused namely Dharman @ Dharmaraj,S/o.Deenadayalan was directed to be released on bail as per the orderof this Court dated 17.11.2008 in Crl.M.P.No.2 of 2008 inCrl.r.c.No.1399/2008 on the file of this Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 9.6.2011CORAM:THE HONOURABLE MS.JUSTICE R.MALACrl.R.C.No.1399 of 2008 & M.P.No.1 of 2008Dharman @ Dharmaraj.. Petitioner/AccusedVs.State rep. byInspector of Police,J-4, Kotturpuram Police Station,Chennai-600 085.Crime No.37/2006.. Respondent/ComplainantCriminal Revision Case against the judgment dated 12.10.2007 inCrl.A.No.54 of 2007 on the file of the Additional Sessions Court,Fast Track Court No.5, Chennai, against the judgment dated 29.1.2007in C.C.No.3354 of 2006 on the file of IX Metropolitan Magistrate,Saidapet, Chennai.For petitioner : Mr.Swamidoss Manokaran for Mr.R.GaneshFor respondent : Ms.MF.Shabana and Mr.C.Emalias, Govt. Advocates (Crl. Side)ORDERThe Crl.R.C. is filed against the judgment dated 12.10.2007 inCrl.A.No.54 of 2007 on the file of the Additional Sessions Court,Fast Track Court No.5, Chennai, confirming the judgment dated29.1.2007 in C.C.No.3354 of 2006 on the file of IX MetropolitanMagistrate, Saidapet, Chennai, whereby the revision petitioner/A1,and A2 were convicted for the offence under Section 394 read with 34IPC and sentenced to undergo one year rigorous imprisonment and topay fine of Rs.500/-, in default, to undergo one month simpleimprisonment. A-3 was acquitted of the charge.2. The skeleton of the prosecution case is as follows:On 18.1.2006 at about 10 p.m., when P.W.1 was waiting near https://hcservices.ecourts.gov.in/hcservices/ Madhya Kailash to board vehicle to go to his night shift work, therevision petitioner/A1 asked time and P.W.1 mentioned the time andsubsequently, when he again asked time, the accused made quarrelwith P.W.1 and abused him in filthy language and there was scufflingbetween P.W.1 and the accused. At that time, A1 to A-3 snatched thecell phone and wrist watch and caused injury to P.W.1. Immediately,P.W.1 was admitted in Malar Hospital and subsequently he gavecomplaint, which was received by P.W.3 who registered a case in CrimeNo.37 of 2006 under Section 394 read with 34 IPC and A1 and A2 werearrested. A1 and A2 have given confession, which was recorded in thepresence of P.W.2 Balu and on the basis of the confession, he seizedM.Os.1 and 2 under the seizure mahazar. He concluded theinvestigation and filed charge sheet against the accused for theoffence under Section 394 read with 34 IPC.3. The trial Court, on the basis of the oral evidence of P.Ws.1to 3 and the documentary evidence of Exs.P-1 to P-5 and M.Os.1 and 2,convicted and sentenced the revision petitioner/A1, and A2 as statedabove and acquitted A3, against which, the revision petitioner/A1 andA2 preferred appeal and the first appellate Court confirmed theconviction and sentence passed by the trial Court, against which, thepresent Crl.R.C. is preferred by A1.4. Challenging the conviction and sentence, learned counselappearing for the revision petitioner/A1 submitted that there isdiscrepancy in respect of the registration of the FIR. P.W.1 who isthe complainant has given one version and P.W.3, the person whoregistered the case, has given another version. Admittedly, as perthe evidence of P.W.1, A1 to A3 were not known to P.W.1 previouslyand no identification parade was conducted. P.W.2 who is alleged tobe the attestor of the confession, has turned hostile and the otherattestor has not been examined. The recovery under Section 27 of theIndian Evidence Act, has not been proved as per law. He furthersubmitted that the identification of the material objects, has notbeen made. These facts have not been considered by both the Courtsbelow and hence, the conviction and sentence suffers fromirregularity and illegality and he prayed for acquittal of therevision petitioner/A1.5. Repudiating the said contentions, learned GovernmentAdvocates (Criminal Side) submitted that P.W.1 has stated that he hasgiven complaint and P.W.3 registered the case and P.W.1's evidenceis corroborated by the evidence of P.W.3 and that factum has beenclearly discussed by both the Courts below and there is nodiscrepancy in respect of the registration of the case. He furthersubmitted that at the time of trial, P.W.1 identified A1 and A2 andso, there is no need to conduct identification parade. He fairlyconceded that P.W.2 turned hostile, but however, P.W.3 investigatingofficer has proved the confession as well as recovery and hence, boththe Courts below have considered this aspect in proper perspective https://hcservices.ecourts.gov.in/hcservices/ and came to the correct conclusion. Hence, the conviction andsentence passed against the revision petitioner/A1 do not warrant anyinterference and he prayed for dismissal of the Crl.R.C.6. Considering the rival submissions and the materials availableon record, this Court has to consider the evidence of P.Ws.1 to 3.P.W.1 is the victim and P.W.2 who is the attestor to the confession,has turned hostile. P.W.3 is the investigating officer. Now, thisCourt has to decide as to whether the evidence of P.W.1 is reliable.While considering the evidence of P.W.1, there is contradiction inhis evidence both in chief examination and cross-examination. P.W.1in his chief examination, stated that A1 and A2 and another personwho was not before Court, committed the offence. But, in cross-examination by the counsel for A-3, he stated that he did not see A3on the date of occurrence. Admittedly, on the date of examination ofthe witness P.W.1, A3 was not present before Court. In suchcircumstances, I do not find any reason as to how P.W.1 has statedabout the person who was not before Court, by stating that he hasseen him at the time of occurrence. Hence, I am of the view that theevidence of P.W.1 is not trustworthy. 7. Furthermore, in chief examination, he has stated thatimmediately, he was admitted in Malar Hospital, where the Police hasexamined him and they recorded the complaint Ex.P-1. In cross-examination, he has stated that he has written the complaint only atMalar Hospital and was treated as an out-patient and does not knowthe name of the Doctor who treated him. In his cross-examination, hehas specifically mentioned that he has not visited the Police Stationand so, his evidence is not trustworthy and hence, not reliable. 8. P.W.3 in his evidence, stated that P.W.1 appeared before himon 19.1.2006 and gave the complaint, which was received and the casewas registered. So, there is major discrepancy with regard to therecording of complaint. The trial Court and the first appellate Courthave given reasonings for accepting the same. Considering these factsalong with the evidence of P.Ws.1 and 3, I am of the view that theevidence of P.W.1 is not trustworthy and it is not reliable. In hisevidence, he has fairly conceded that he has not identified thematerial objects and he has not given identification mark of thewrist watch and cell phone.9. At this juncture, it is appropriate to consider theingredients of Section 394 IPC, which reads as follows:"Section 394 IPC: Voluntarily causing hurt in committingrobbery: If any person, in committing or in attempting tocommit robbery, voluntarily causes hurt, such person, andany other person jointly concerned in committing orattempting to commit such robbery, shall be punished withimprisonment for life, or with rigorous imprisonment for https://hcservices.ecourts.gov.in/hcservices/ a term which may extend to ten years, and shall also beliable to fine."10. It is rightly pointed out by learned counsel appearing forthe revision petitioner/A1 that no Doctor has been examined and noaccident register has been marked to show that P.W.1 sustainedinjury. In such circumstances, one of the ingredients of Section 394IPC, has not been proved by the prosecution beyond reasonable doubt,which was not considered by both the Courts below. 11. It is also pertinent to note that P.W.1 has not given anyidentification mark for his wrist watch and cell phone. Furthermore,it is appropriate on the part of this Court to consider the evidenceof P.W.2 who is one of the attestors to the confession, who turnedhostile. The other attestor has not been examined before Court. Theadmitted portion of the confession of A-1 is marked as Ex.P-4 throughthe investigating officer. But the seizure mahazar has also not beenmarked before the Court below. In such circumstances, both the Courtsbelow have not considered the recovery under Section 27 of the IndianEvidence Act in proper perspective. 12. As per Section 27 of the Indian Evidence Act, the recoveryhas to be proved by concrete evidence and not by the investigatingofficer. In this case, it is pertinent to note that the recovery ofM.Os.1 and 2 have not been proved and also the seizure mahazar notmarked. Both the Courts below have not considered this aspect inproper perspective.13. For these reasons, the revision petitioner/A1 is entitled tobe given the benefit of doubt and hence, I am of the view that theprosecution has not proved the guilt of the revisionpetitioner/accused under Section 394 read with 34 IPC, beyond allreasonable doubt. Giving the benefit of doubt to the revisionpetitioner/A1, he is acquitted of the charge levelled against him.14. For the above reasons:(a) The Crl.R.C. is allowed.(b) The conviction and sentence passed by both the Courts belowagainst the revisions petitioner/A1, are set aside. He is acquittedof the charge.(c) The bail bond, if any executed by him, shall stand cancelled.(d) The fine amount, if paid by the revision petitioner/A1 shallbe refunded. https://hcservices.ecourts.gov.in/hcservices/ (e) The Miscellaneous Petition is closed. Sd/ Asst.Registrar //True Copy// Sub.Asst.RegistrarcsTo1.The Metropolitan Magistrate No.IX, Saidapet, Chennai.2.The Chief Metropolitan Magistrate, Egmore, Chennai (for Information)3. Additional Sessions Court, Fast Track Court No.5, Chennai.4. Inspector of Police, J-4, Kotturpuram Police Station, Chennai-600085.5. The Public Prosecutor, High Court, Madras.copy to:The Section Officer, Criminal Section, High Court, Madras.1 cc to Mr.R.Ganesh , Advocate, Sr.No.32956Crl.R.C.No.1399 of 2008 SAI(CO)PMK.20.6.2011