THE HONOURABLE MR v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 04.04.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.A.No.625 of 2006 and M.P.No.3 of 2006Mohammed Ali @ Puttan ..Appellant/Accusedvs.State by:The Inspector of Police,B-2, R.S.Puram Police Station,Coimbatore City,(Crime NO.232/2005) ..Respondent/ComplainantPrayer: This Revision has been preferred under Section 374(2) ofCr.P.C., against the judgment dated 30.5.2006 made in S.C.No.13of 2006 on the file of the Additional Sessions Judge, FTC.No.I,Coimbatore.For Appellant : Mr.P.M.DuraiswamyFor Respondent : Mr.Muniyappa Raj, Govt Advocate (Crl.Side)ORDER This revision has been preferred against the judgment inS.C.No.13 of 2006 on the file of the Additional Sessions Judge,FTC.No.I, Coimbatore. The accused has been charged under Section392 r/w 397 IPC. 2. According to the prosecution on 28.2.2005 at about 6.00pm the accused at the point of knife had robbed a cell-phone fromP.W.1 while he was alighting from a bus. Ex.P.1 is the complaintpreferred by P.W.1. P.W.7 is the then Inspector of Police, B-2,R.S.Puram Police Station, who had registered the complaint inCr.No.232 of 2005 under Section 392 r/w 397 IPC. Ex.P.7 is theFIR. On the same day at about 8.30 pm P.W.7 visited the place ofoccurrence and prepared Ex.P.2-observation mahazar in thepresence of P.W.5. Under Ex.P.2, glass pieces of soda-bottles,from the scene of occurrence were recovered in the presence ofP.W.5 by P.W.7. Ex.P.8 is the rough sketch drawn by P.W.7.P.W.7 has also examined the witnesses and recorded theirstatements. https://hcservices.ecourts.gov.in/hcservices/

3. P.W.2 is an eye witness to the occurrence. According toP.W.2 while P.W.1 was alighting from 1C bus, the accused by namePuttan @ Mohammed Ali had snatched the cell-phone from P.W.1 andwhen P.W.1 raised distress call the accused had shown a knifethreatening him to stab him and when people gathered at the sceneof occurrence the accused immediately took a soda-bottle from hisTVS-50 moped and had broken the same on the ground on the streetwhich made the people goes hither and thither. P.W.2 would statethat he knows the accused since he is a prisonmate of him. P.W.2would categorically state that he cannot identify the cell-phonewhich was found in possession of P.W.1 at the time of occurrence.4. Another ocular witness relied on by the prosecution isP.W.3, who is a panpoori vendor. According to P.W.3 on 28.2.2005at about 5.30 pm from 1C bus P.W.1 got down and was proceeding onthe road and at that time the accused came in a TVS-50 blackmoped and snatched the cell-phone used by P.W.1 and immediatelyP.W.1 raised alarm and when he and others neared the accused, theaccused slashed a knife and criminally intimidated by saying thatif any one attempts to approach him, he will stab him andthereafter the accused took out a soda-bottle from TVS-50 and hadbroken the same on the road, which made the people who gatheredthere to ran away in panic from the scene of occurrence. P.W.3has identified M.O.2 as the knife used by the accused at the timeof occurrence. But P.W.3 would state that he is not in aposition to identify the broken pieces of soda-bottle.5. P.W.4 is a roadside vendor of chicken. P.W.4 has alsocorroborated the evidence of P.W.1 to 3 to the effect that theaccused had snatched the cell-phone from P.W.1 while he wasalighting from 1C bus on the occurrence day and that the accusedhad took out a knife and threatened him and the other witnessesand also broken a soda-bottle to scare the gathering. P.W.4 hasidentified M.O.2 as the knife used by the accused at the time ofoccurrence.6. P.W.7 had arrested the accused on 1.3.2005 at 5.30 pm andwhen he enquired the accused, he voluntarily gave a confessionstatement which was recorded by P.W.7 in the presence of P.W.6.P.W.6 would state that Ex.P.4 is his signature in the confessionstatement of the accused. P.W.7 would state that in pursuance ofthe confession statement, the accused had produced falsemustache, beard, cap, gloves, cell-phone, torch, knife,screwdriver, iron rod and plastic knife, which were recoveredunder Ex.P.6-mahazar in the presence of P.W.6. P.W.6 wouldidentify M.O.2 as the button knife recovered from the accusedbesides M.O.4 torch, M.O.5 iron rod, M.O.6 pair of socks, M.O.7cap, M.O.8 screwdriver, M.O.9 false beard, M.O.10 falsemustache, M.O.11 plastic knife and M.O.3 motor cycle. Ex.P.9 https://hcservices.ecourts.gov.in/hcservices/ is the admissible portion of the confession statement of theaccused. P.W.7 took the accused with the seized articles to thepolice station and sent the accused for judicial remand and aftercompleting the investigation, P.W.7 has filed the charge sheetunder Section 392 r/w 397 IPC.7. The case was taken on file by the learned JudicialMagistrate No.I, Coimbatore, as PRC.No.28 of 2005. On appearanceof the accused on summons, copies under Section 207 of Cr.P.C.,were furnished to the accused. Since the case is triable by theCourt of Sessions, the learned Magistrate has committed the caseto the Court of Sessions under Section 209 of Cr.P.C. When theaccused appeared before the Court of Sessions, the learnedSessions judge has framed charges against the accused underSection 392 r/w 397 IPC and when questioned the accused pleadednot guilty. On the side of the prosecution P.W.1 to 7 wereexamined and Ex.P.1 to Ex.P.9 were exhibited and M.O.1 to M.O.11were marked. 8. When the incriminating circumstances were put to theaccused under Section 313 of Cr.P.C., the accused denied hiscomplicity with the crime. The accused has examined his motheras D.W.1 and marked Ex.D.1, death certificate of his fatherIbrahim dated 18.3.2005. After going through the evidence bothoral and documentary learned Sessions Judge has come to theconclusion that the guilt against the accused under Section 392r/w 397 IPC has been proved beyond any reasonable doubt andaccordingly convicted and sentenced the accused to undergo 7years RI. Aggrieved by the findings of the learned SessionsJudge, the accused has preferred this appeal.9. Now the point for determination this appeal is whetherthe conviction and sentence of the learned Sessions Judge inS.C.13 of 2006 on the file of the Additional Sessions Judge,FTC.No.I, Coimbatore, is sustainable for the reasons stated inthe memorandum of appeal?10.The Point:- Heard the learned counsel for the appellantThiru.P.M.Duraisamy and the learned Government Advocate (CriminalSide) Mr.R.Muniappa Raj and considered their rival submissions.The learned counsel for the appellant focus the attention of thisCourt on the evidence of P.W.1, that P.W.1, the complainant, hasnot identified the accused and that he would depose in the chief-examination that only at the police station he had identified thecell-phone and the knife, but when the police asked him toidentify the accused, he had stated that he could not identifythe accused. Under such circumstances the prosecution ought tohave conducted the identification parade as soon as the accusedwas arrested and remanded to the judicial custody. The learned https://hcservices.ecourts.gov.in/hcservices/ Government Advocate (Criminal side) would contend that theaccused has been identified by ocular witness viz. P.W.2, who isa prisonmate of the accused. In the chief-examination itselfP.W.2 would depose that he cannot identify the cell-phone whichis said to have been robbed from P.W.1 by the accused. But in thecross-examination P.W.2, to our surprise, would depose that hehad seen P.W.1 at the police station and that P.W.1 is the ownerof two wheeler workshop. Even though in the chief-examinationP.W.1 would identify his cell-phone as M.O.1, in the cross-examination he would state that M.O.1 is not the said cell-phoneand that he fell unconscious for about 30 minutes and that hecould not recall what had happened during the said period of hisunconscious condition. But in the chief-examination he has notgiven any details as to when he became unconscious and when heregained consciousness and who gave first aid to him etc.,.P.W.1 has not stated in the chief-examination to the effect thatthe occurrence was witnessed by P.W.2 or P.W.3 or P.W.4. P.W.1has not identified the accused before the Court. The reasoninggiven by P.W.1 for this is that he had undergone an eye surgery,but he has identified the knife as M.O.2. In Ex.P.1-complaintP.W.1 would state that the accused was identified to him byP.W.2-Anandan. Under such circumstances, the failure to conductidentification parade by the prosecution, in my opinion, is fatalto the case of the prosecution. Yet another point goes againstthe case of the prosecution is that the failure of P.W.1 toidentify even the cell-phone in the cross-examination. P.W.3,another ocular witnesses relied on by the prosecution, in thecross-examination would depose that he used to go to the policestation every month to pay mamool (bribe). In the cross-examination he would categorically admit that for the first timehe saw the accused in the Court. P.W.4, another eye witness, inthe cross-examination would depose that the accused had followedP.W.1 for about 10 feet and snatched the cell-phone. Butaccording to P.W.1 and as per Ex.P.1-complaint, after P.W.1 gotdown from 1C bus and was proceeding on the road about 10 feet,from the opposite side the accused came in TVS.50 moped andstopped the vehicle near him and snatched the cell-phone. So theevidence of P.W.4 is diametrically opposite to the narration ofincident in Ex.P.1-complaint. Under such circumstances, itcannot be said that prosecution has proved the guilt of theaccused beyond any reasonable doubt and certainly the doubt inureto the benefit of the accused. Point is answered accordingly. https://hcservices.ecourts.gov.in/hcservices/

11. In fine, the criminal appeal is allowed and the judgmentin S.C.No.13 of 2006 on the file of the additional Session Judge,FTC.No.I,Coimbatore, is set aside, and the accused is to be setat liberty forthwith, if he is not required in connection withany other case. Connected C.M.P.No.3 of 2006 is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarssvTo1.The Additional District Sessions Judge, FTC.No.I, Coimbatore.2.The Principal Sessions Judge, Coimbatore.3.The Superintendent, Central Prison, Coimbatore.4.The Inspector of Police, B-2, R.S.Puram Police Station, Coimbatore District.5.The Public Prosecutor, High Court, Madras.6.The District Collector, Coimbatore.7.The Director General of Police, Chennai.+1cc to Mr.P.M.Duraiswamy, Advocate Sr 21551KA (CO)km/16.4. Crl.A.No.625 of 2006