Chitti alias Chittibabu v. The State

BAIL SLIP----The Accused Chitti @ Chittibabu was directed to bereleased on bail as per the order of this Court dated 25.2.2004 inCrl.M.P.No.775 of 2005 and made in Crl.R.C.No.141 of 2004.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 25.11.2010CORAMTHE HONOURABLE MR.JUSTICE T.SUDANTHIRAMCRL.R.C.No.141 of 2004Chitti alias Chittibabu ...Petitioner/appellant/accusedVersusThe State represented by itsInspector of PoliceGummidipoondi Police StationThiruvellore District.(Crime No.194 of 1999) ...Respondent/respondent/complainantPetition filed under Section 397 r/w 401 Cr.P.C., against theJudgment in Crl.A.No.84 of 2002, on the file of the Additional FastTrack Court at Chengalpattu dated 17.04.2003, confirming theJudgment passed in S.C.No.12 of 2000 dated 22.10.2002, on the fileof the learned Assistant Sessions Judge, Ponneri. For Petitioner: Mr.C.V.Kumar For respondent: Mr.A.Saravanan Government Advocate (Criminal side)ORDERThe revision petitioner herein is the third accused inS.C.No.12 of 2000, on the file of the Assistant Sessions Judge,Ponneri and he was convicted by the trial Court along with twoother accused for the offence under Section 392 r/w 34 IPC andsentenced to undergo five years rigorous imprisonment and to pay afine of Rs.1000/- in default to undergo six months rigorousimprisonment and also was convicted under Section 397 r/w 34 IPCand sentenced to undergo seven years rigorous imprisonment and thesentence of imprisonment were ordered to run concurrently. Thethird accused preferred an appeal before the Additional SessionsJudge (FTC-I), Chengalpattu in C.A.No.84 of 2002. The appellateCourt confirmed the conviction on the third accused under Section392 r/w 34 IPC and confirmed the sentence also, but acquitted theaccused under Section 397 r/w 34 IPC. Challenging the said https://hcservices.ecourts.gov.in/hcservices/ conviction and sentence, the petitioner/third accused had preferredthis criminal revision petition before this Court.2. The case of the prosecution, in brief, is that on31.05.1999, P.W.1 who was working as a Physical Director in aschool went to Chennai along with his father, mother and sister topurchase certain articles for his marriage and they were allreturning in the train from Chennai Central Station at about10.40p.m. In the night at about 12.00, while the train wascrossing between Ponnery and Kaverapet, the accused 1 to 3 whowere in the coach showed their knives and threatened them. Theyalso snatched the gold chain, gold ring, watches from P.W.1 and agold ring and also a cash of Rs.2500/- from P.W.2 – father of P.W.1and they also snatched one gold ring from P.W.3 – Sister of P.W.1.They also snatched two watches from two other persons. While thetrain reached near Kaverapet railway station, all the threeaccused escaped. P.W.1 gave complaint Ex.P.1 to P.W.8 - SubInspector of Police, Gummidipoondi Police Station. P.W.8 – SubInspector of Police on receiving the complaint registered a case inCrime No.194 of 1999 under Section 397 IPC and prepared Ex.P.8First Information Report. P.W.7, Inspector of Police took up theinvestigation. He arrested the accused at 02.30 hours and herecorded the confession statements from the accused and recoveredone Classic gold chain watch and 5 grams of gold ring and 1½sovereign gold chain and a knife from the first accused. Herecovered a gold ring with green colour stone and a cash amount ofRs.2500/- and a knife from the second accused. He also recovered 3grams of gold ring with red colour stone, one Timex Watch and aSamsung Watch from the third accused. He recorded the statement ofwitnesses and the accused was sent for remand.3. P.W.10 – Judicial Magistrate, Ponnery, conducted a TestIdentification Parade on 03.08.1999 and in the Test IdentificationParade, P.W.1 identified all the three accused, P.W.2 identifiedthe first and the second accused. P.W.7 after completing theinvestigation, laid the final report against all the accused.4. In order to establish the case, the prosecution examinedP.Ws.1 to 10, marked Ex.P.1 to P.12 and produced material objectsM.Os.1 to 10. When the accused were questioned under Section 313Cr.P.C, they denied their complicity. On the side of the defence,neither any witness nor any document was marked. The trial Courtand the appellate Court after analysing the evidence found theaccused guilty.5. Mr.C.V.Kumar, learned counsel appearing for the petitionersubmitted that though among P.Ws.1 to 3, it was only P.W.1 who hadidentified the third accused in the Test Identification Parade andeven P.Ws.1 to 3 had admitted in the cross examination that he hadseen the third accused in the police station on the next daymorning and as such the Test Identification Parade losses itsvalue. https://hcservices.ecourts.gov.in/hcservices/

6. Per contra, learned Government Advocate (Criminal side)submitted that even though P.Ws.2 and 3 have not identified thethird accused in the Test Identification Parade, P.W.1 hadidentified the third accused and P.Ws.1 to 3 have identified thethird accused in the court which is a substantive piece ofevidence. The learned Government Advocate (Criminal side) furthersubmitted that immediately after the occurrence within a few hours,all the three accused have been arrested by the police and all theproperties were also recovered which is a strong piece of evidenceagainst the accused to prove that the accused have committed therobbery.7. This Court considered the submissions and perused therecords. It is the evidence of P.Ws.1 to 3, while they weretravelling in the night hours in the train, all the three accusedsnatched the jewels, wrist watches and cash from them bythreatening with knives. According to their evidence in the crossexamination, accused 2 and 3 were holding knives in their hands.From the evidence of P.Ws.1 to 3, all the three accused havecommitted robbery by showing knives is established. The questionnow arises for consideration is whether the revision petitioner isone among three culprits. Though in the test identificationparade, it was only P.W.1 who had identified the petitioner/thirdaccused, as it was admitted by P.Ws.1 to 3 that they had seen theaccused in the early morning in the police station, to some extent,it is to be accepted that test identification parade losses itsvalue. But at the same time, it does not exclude the involvementof the accused in the occurrence. The occurrence took place in themid night and all the three accused have been arrested by thepolice at 2.30a.m., and the properties have been recovered. Fromthe third accused, M.Os.7 to 10 have been recovered and otherproperties were recovered from the other accused 1 and 2. As therobbed properties have been recovered from the accused within afew hours from the time of occurrence, it is very clinchingmaterial to draw the presumption under Section 114 of the IndianEvidence Act and to conclude that the accused have committed theoffence of robbery, especially in the absence of any explanationfrom the accused for the possession of the robbed properties.Hence the conviction on the petitioner under Section 392 r/w 34 IPCis confirmed.8. At this juncture, the learned counsel for the petitionerprayed for reduction of sentence of imprisonment imposed on thepetitioner. Though originally the trial Court convicted thepetitioner for the offence under Section 397 r/w 34 IPC andsentenced to undergo 7 years rigorous imprisonment along withconviction under Section 392 r/w 34 IPC for which he was sentencedto undergo five years rigorous imprisonment, the appellate Courthad acquitted the petitioner from the offence under Section 397 r/w34 IPC observing that no separate conviction could be made underSection 397 r/w 34 IPC, and no separate charge ought to have beenframed under Section 397 IPC. https://hcservices.ecourts.gov.in/hcservices/

9. This Court feels that the trial Court has not understoodthe concept of Section 397 IPC while framing charges against theaccused. The trial Court framed two charges against the accused 1to 3, one charge for Section 392 r/w 34 IPC and another charge forSection 397 r/w 34 IPC. 10. Section 392 IPC is as follows:"392. Punishment for robberyWhoever commits robbery shall be punished withrigorous imprisonment for a term which may extend toten years, and shall also be liable to fine; and, ifthe robbery be committed on the highway betweensunset and sunrise, the imprisonment may be extendedto fourteen years."Section 397 IPC is as follows:"397. Robbery, or dacoity, with attempt to cause death or grievous hurtIf, at the time of committing robbery or dacoity, theoffender uses any deadly weapon, or causes grievoushurt to any person, or attempts to cause death orgrievous hurt to any person, the imprisonment withwhich such offender shall be punished shall not beless than seven years."11. Section 397 IPC is only a rider to Sections 392 IPC and395 IPC - 'Punishment for robbery' and 'punishment for dacoity'respectively. No substantive charge can be framed under Section397 IPC. The substantive charges can be only under Section 392 IPCor 395 IPC and in cases where the deadly weapon is used by theoffender either at the time of robbery or dacoity or causedgrievous hurt to any person, it prescribes only the minimumsentence of seven years. Therefore, the object to Section 397 IPCis that while punishing the offender under Section 392 or 395IPC, the sentence should not be less than seven years. Therefore,while framing charges either under Section 392 IPC or 395 IPC, ifthe additional ingredients of Section 397 IPC are attracted, thenthe charges should be framed as Section 392 r/w 397 IPC or 395 r/w397 IPC.12. Though the petitioner ought to have been sentenced notless than seven years, as he had used knife while committingrobbery, the appellate Court having set aside the sentence of sevenyears, this Court does not want to further reduce the sentence ofimprisonment imposed on the petitioner.13. For the above said reasons, the criminal revision petitionis dismissed. The learned Assistant Sessions Judge, Ponneri, is https://hcservices.ecourts.gov.in/hcservices/ directed to issue warrant and take steps to secure the thirdaccused in order to undergo the remaining period of sentence. Sd/-Asst. Registrar//true copy//Sub Asst.RegistrarksrTo1.The Additional Sessions Judge, FTC -I, Chengalpattu.2.The Assistant Sessions Judge, Ponneri.3.The Public Prosecutor, High Court, Madras.4.The Inspector of Police, Gummidipoondi Police Station, Thiruvallur.5.The Judicial Magistrate NO.I, Ponneri.6.The Chief Judicial Magistrate, Chengalpattu.7.The Principal Sessions Judge, Chengalpattu.8.the Superintendent, Central Prison, Vellore.1 cc to Mr.C.V.Kumar, Advocate, Sr.No.84023CRL.R.C.No.141 of 2004MS {CO}TP/20.12.2010.