Juli @ Juliet @ Arockiaraj... v. State through represented by The Inspector of Police, Thiruverumbur Police Station, In Crime No.26/2009, Trichy District...

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED : 25.04.2012CORAMTHE HONOURABLE MR.JUSTICE A.ARUMUGHASWAMYCrl.A.(MD) No.191 of 2011Juli @ Juliet @ Arockiaraj...Appellant/accused Vs.State through represented byThe Inspector of Police,Thiruverumbur Police Station,In Crime No.26/2009,Trichy District...Respondent/complainantPRAYER: Criminal Appeal is filed by the appellants under Section 374of the Criminal Procedure Code, against the judgment of convictionmade by the learned Additional District Sessions Judge, Fast TrackCourt No.1, Trichy-3 for the offence under Section 392 I.P.C. toundergo three years simple imprisonment and to pay a fine ofRs.500/- in default to undergo three months simple imprisonment andfor the offence under Section 392 to undergo three years simpleimprisonment passed in S.C.No.20 of 2010 dated 16.05.2011.For Appellants: Mr.C.M.ArumugamFor Respondent: Mr.K.S.Duraipandian Additional Public Prosecutor***JUDGMENTThe present appeal filed filed by the appellant/accused againstthe judgment of conviction dated 16.05.2011, passed in S.C.No.20 of2010, made by the learned Additional District Sessions Judge, FastTrack Court No.1, Trichy-3 for the offence under Section 392 I.P.C.to undergo three years simple imprisonment and to pay a fine ofRs.500/- in default to undergo three months simple imprisonment andfor the offence under Section 397 I.P.C. to undergo three yearssimple imprisonment and to undergo the sentence concurrently.2. The case of the prosecution is that P.W.1 is the complainantand on 02.02.2009 at about 07.30a.m. While he was walking inKailash Nagar near the ration shop, at that time theappellant/accused appeared before him with small knife and demandedmoney and then P.W.1- complainant gave money and the neck chain- https://hcservices.ecourts.gov.in/hcservices/ 2minor chain weighing of 20 grams has been cut by the accused and hehas run away. Thereafter P.W.1 raised alarm. At that time, P.W.2who is a 75 years old man, chased the accused-who is 25 years oldand P.W.3 also witnessed the occurrence and thereafter produced theaccused along with the material object before the P.W.5-theInspector of Police, who registered F.I.R. in Cr.No.26 of 2009 andinvestigating the matter. Thereafter he went to the scene ofoccurrence. Thereafter, he laid a charge sheet under Sectionagainst the accused under Section 392 r/w 397 I.P.C. Taking thecognizance of the offence, it has been taken on file by way ofS.C.No.20 of 2010 before the learned Additional District SessionsJudge, Fast Track Court No.1, Trichy-3.3. During trial, the prosecution in order to prove its casebeyond reasonable doubt, has examined P.W.1 to P.W.5 and markedExs.P.1 to P.4. and M.O.1 and 2. The trial Court, after consideringthe oral and documentary evidence, has convicted the accused forthe offence under Section 392 I.P.C. to undergo three years simpleimprisonment and to pay a fine of Rs.500/- in default to undergothree months simple imprisonment and for the offence under Section397 I.P.C. to undergo three years simple imprisonment and to undergothe sentence concurrently. 4. Against which, the present Criminal Appeal has been filed bythe appellant/accused.5. The vehement contention of the learned Counsel for theappellant/accused is that the present case has been picked up and itwill be seen from the evidence of P.W.1 and P.W.2 and thedescription of the material object of gold chain does not tally withthe mahazar as well as from the complaint. Hence he prayed that theappeal has to be allowed.6. The learned Additional Public Prosecutor appearing for therespondent contended that the prosecution has proved the case byexamining two other independent witnesses and the recovery ofmahazar will clearly clinch the issue and hence he prayed that theappeal has to be dismissed by confirming the sentence and convictionpassed by the trial Court.7. Heard the learned Counsel for the appellant/accused and thelearned Additional Public Prosecutor appearing for the respondentand perused the materials available on record.8. As per the evidence of P.W.1 it is seen that while he wasgoing for walking in Kailash Nagar at about 07.30 a.m. near rationshop, the accused suddenly appeared before him with a small knifeand demanded the money and he paid Rs.200/- and thereafter he cutthe neck chain and attempted to disappear. P.W.1 raised a noise and https://hcservices.ecourts.gov.in/hcservices/ 3P.W.2 who is 75 years old man chased the accused and caught him andP.W.3 also witnessed the occurrence.9. The contention of the leaned Counsel for theappellant/accused is that 75 years old man could not have beencaught the accused and it has been clearly admitted by P.W.2 duringthe cross examination. Therefore, he prayed that the evidence ofP.W.2 and P.W.3 has to be disbelieved. From the very well scrutinyof the evidence of P.W.2, during the cross examination, he hasspecifically admitted that he could not run and he went to the sceneof occurrence after hearing the noise. From this, it is very clearthat P.W.2 would not have seen the occurrence and further he wouldnot have chased and caught the accused.10. P.W.3 is yet another person claims to be eye witness. Fromthe evidence of P.W.1 is also it is very clear that he has partedaway a sum of Rs.200/- to the accused. From this it is very clear Iam of the view that as per the stand taken by the defence counsel,it is a case which has been put up against the accused/appellantonly to put the accused under the Tamil Nadu Prevention of DangerousActivities of Bootleggers, Drug-offenders, Forest-offenders,Goondas, Immoral Traffic Offenders and Slum-grabbers Act, 1982 isprobabilising and it has to be accepted.11. The next contention is that material object does not tallywith the description of gold chain as well as the from the evidenceof P.W.1 Hence, he prayed that the appeal has to be allowed.12. During the cross examination of P.W.1, he has admitted thatin the complaint he has given as gold chain with pattai vadavam,whereas in the material object, it is described as murukku chain.In the complaint no description is given about the gold chain andit is only mentioned as 20gms gold chain, whereas in the recoverymahazar, it has been mentioned as 20gm thanga pattaivadiva chain.But P.W.1 in his cross examination, he claims as follows:"Gfhhpy; gl;il tbtj;jpy; cs;s nrapid vjphp mWj;jjhf jhd; nrhy;ypcs;Nsd;. rh.ngh.1 KWf;Fnrapd;."From this it is very clear that the description of gold chaindiffers from the description of gold chain in the complaint. HenceI am of the view that this portion of the evidence as well as thematerial object also does not tally with the case. Hence, theprosecution has miserably failed to prove the case. These aspecthas not been properly appreciated by the trial Court.13. Under these circumstances, I am of the view that the offenceunder Section 392 r/w 397 I.P.C. as against the accused has not beenproved beyond reasonable doubt. Hence, the appellant/ accused areentitled is entitled for the benefit of acquittal. https://hcservices.ecourts.gov.in/hcservices/

414. In fine, the Criminal Appeal is allowed and the convictionand sentence imposed against for the offence under Section 392I.P.C. to undergo three years simple imprisonment and to pay a fineof Rs.500/- in default to undergo three months simple imprisonmentand for the offence under Section 397 I.P.C. to undergo three yearssimple imprisonment and to undergo the sentence concurrently videjudgment passed in S.C.No.20 of 2010 dated 16.05.2011 by the learnedlearned Additional District Sessions Judge, Fast Track Court No.1,Trichy-3 is set aside and the appellant/accused is acquitted of thecharges levelled against him and the fine amount paid, if any, shallbe ordered to be refunded to the appellant/accused. The bail bondshall stand cancelled. Sd\-Assistant Registrar(AS)\\True copy\\Sub Assistant Registrar To1. The Additional District Sessions Judge, Fast Track Court No.1, Trichy-32. The Judicial Magistrate No.VI Trichy3. The Inspector of Police Thiruverumbur police Station (Crime No.26/2009)4. The Superintendent central prison Tiruchirapalli.5. The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.+1CC to Mr.C.M.Arumugam, Advocate in SR.No.13962/12sslna/28/05/2012/p4/7cCrl.A.(MD) No.191 of 201125.04.2012