The genuineness of recovery must be proved, and suspicion alone cannot establish legal proof.

P. Devadass, J.

Though appellant Shankar in Crl.A.No.75 of 2012 and appellant Ramesh in Crl.A.No.76 of 2012 were convicted and sentenced by the learned Additional Sessions Judge, (Fast Track Court. I), Erode by separate judgments since they were rendered on the very same evidence, these two criminal appeals were heard together and are being disposed of by this Common Judgment.

2. Actually in Cr.No.39 of 2004, registered by Uthukuli Police Station, there are five accused, namely, 1) Raja, 2) Shankar, 3) Ramesh, 4) Venkatesh @ Venkatasami and 5) Palanivel. Out of them, some of them have appeared before the Committal Court and some of them have absconded. In the circumstances, the case against the absconding accused were split up. The learned Committal Magistrate committed the case against appellants Shankar (A2) and Ramesh (A3) to the Court of Principal Sessions Judge, Erode by separate orders. The learned Sessions Judge took the case against appellant Shankar on file in S.C.No.153 of 2009 and the case against appellant Ramesh (A3) in S.C.No.102 of 2009 and made over them to the Additional Sessions Judge (Fast Track Court No.I), Erode for trial.

3. In both the cases, before the trial court, very same evidence was let in. However, on 11.01.2012, the learned Additional Sessions Judge rendered separate judgments in each case. Thus, the appellants have preferred separate appeals to this Court, namely, Crl.A.No.75 of 2012 and Crl.A.No.76 of 2012.

4. It is pertinent to note that the procedure adopted by the learned Additional Sessions Judge is not correct. After obtaining orders from the learned Principal Sessions Judge, he should have clubbed both the cases and analysed the common evidence and rendered a single Judgment. Be as it may, now, we shall proceed to dispose of these appeals on merits.

5. For convenience sake, let us call appellant Shankar (Crl.A.No.75/2012) as first appellant and appellant Ramesh (Crl.A.No.76/2012) as second appellant.

6. On 11.01.2012, the Trial Court convicted and sentenced the appellants as under:

Sl.No. Appellant Conviction Sentence

1. 1st appellant (i) 449 IPC (i) 10 years Rigorous imprisonment and fine

(Cr.A.No.75/12) (ii) 396 IPC Rs.5,000/-, in default 1 year Rigorous

Imprisonment

(ii) Life and fine Rs.5,000/-, in default, 1 year

Rigorous Imprisonment

(iii) Since Sec.396 includes Sections 302,

395 r/w 397 IPC, no separate sentence is

awarded

2. 2nd appellant (i) 449 IPC (i) 10 years Rigorous imprisonment and fine

in (Cr.A.No.75/12) (ii) 396 IPC Rs.5,000/-, in default 1 year Rigorous

(iii) 302, 395 (ii) Life and fine Rs.5,000/-, in default, 1 year

r/w 397 IPC Rigorous Imprisonment

Since Sec.396 includes Sections 302, 395 r/w 397

IPC, no separate sentence is awarded

All the sentences were directed to run concurrently.

7. The case of the prosecution, in brief, runs as under:-

(i) In Erode District, in Uthukuli, in a lonely place, on a hillock, there is Vetrivelayuthasamy Temple. P.W.1 Dhandapani Gurukal is its priest. Every day, at about 6 a.m., in the temple, he perform pooja and leave the temple at about 8 p.m. Deceased Murugan @ Murugasamy was its Night watchman.

(ii) As usual, on 27.01.2004, at about 6 a.m., P.W.1 came to the temple. He had seen some ropes hanging over the temple wall. Near the pial, there was a wooden reaper. He called the deceased. There was no response. Entertaining some suspicion, P.W.1 brought the temple clerk, P.W.2 Saravanan. They have seen the temple door found open. Inside the temple, the deceased was found dead with injuries. The Table-drawers, Hundi were found broken. Inside the sanctum sanctorum, the deity's coronet, chest-armour, feet-armour, hand-armour were found missing. The TVS-50 of the deceased was also found missing.

(iii) At about 8 am, at the Uthukuli police station, P.W.1 gave Ex.P.1, complaint to P.W.12-Duraisamy, Sub-Inspector of Police. He registered this case (Ex.P.24 FIR). He send the F.I.R. through constable Duraisamy to t