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2018 Supreme(Mad) 4463
IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.N. Prakash, J.
L. Anthony Raj @ Soorapuli - Appellant
Versus
State by the Inspector of Police, Coimbatore - Respondent
CRL.A. Nos. 11 & 186 of 2011 & Cr.No. 1112 of 2004
Decided On : 10-12-2018
For the Appellant :D. Elangovan, S. Ashok Kumar, Advocates.
For the Respondent:P. Kritika Kamal, Govt. Advocate (Crl. Side).
Headnote:
Criminal Procedure Code - Section 37 – Indian Penal Code - Section 324 and 307 - Investigation was in progress - Challenging judgment - Weapons and gold ornaments were recovered – Thereafter same gang went to house of nearby his family members were watching television they brandished their weapons and demanded inmates to part with jewels brother of resisted and hence, one of them attacked him with an - When mother intervened she was also attacked immediately rushed into bedroom with her infant and locked herself - On seeing that accused broke open door, entered bedroom took away a pair of gold earring and ring worn by child. They also took away the chain (MO-4) from - After robbery they left place – Held, Defense was not able to shake testimony in cross-examination - There is no reason for these witnesses to foist a case on accused – However this Court is not satisfied with the evidence regarding seizure of weapons evidence of Investigating Officer with regard to seizure of weapons is not very clear - On this score, this Court is unable to sustain conviction under Section 397 IPC - Though this Court has sentenced undergo 4 years Rigorous Imprisonment in present appellants do not deserve same indulgence in view of manner in which they had removed ring that was worn by the child - In result these appeals are partly allowed - Conviction and sentence against appellants passed by learned Additional District and Sessions Judge Coimbatore at in under Section 394 r/w 397 IPC is set aside, but appellants are convicted for the offence under Section 394 IPC each sentence Rigorous Imprisonment is reduced to Rigorous Imprisonment for each count under Section 394 IPC for each appellant fine amount and default sentence imposed by trial Court for offence under Section 394 r/w 397 IPC shall remain same for offence under Section 394 IPC - Conviction and sentence for offence under Section 454 IPC (2 counts) stands confirmed – Appeal allowed
JUDGMENT :
(Prayer: Criminal Appeals filed under Section 374(2) of Cr.P.C. praying to set aside the judgment dated 25.09.2009 passed by the Additional District and Sessions Judge, FTC-IV, Coimbatore at Tiruppur in S.C.No.188 of 2007.)
1. Anthony Raj @ Soorapuli and Kumar @ Mayakumar, A1 and A3 respectively in S.C.No.188 of 2007 on the file of the Additional District and Sessions Court (FTC-IV), Coimbatore at Tiruppur have preferred these appeals challenging the judgment dated 25.09.2008 passed therein.
2. Heard Mr.D.Elangovan and Mr.S.Ashok Kumar, learned counsel for the appellants and Mrs.P.Kritika Kamal, learned Government Advocate (Crl. Side).
3. The factual matrix of the prosecution case is as under:
On 30.11.2004, around 8.15 p.m., while Palanisamy and his wife Deivathal (PW5) were in their house watching television, four persons armed with weapons entered their house. One of them assaulted Palanisamy, they cut the telephone wire, made the couple sit in the bedroom, searched the steel almirah, took away ½ sovereign earring from there and 7 sovereigns of thali chain that was worn by Deivathal (PW5), bolted the door from outside and fled.
3.1. Thereafter, the same gang went to the house of Rajan (PW1) nearby, where Rajan (PW1) and his family members were watching television, they brandished their weapons and demanded the inmates to part with the jewels. Saravanan (PW4), the brother of Rajan (PW1) resisted and hence, one of them attacked him with an Arival (billhook). When Rajan's mother, Kamalam (PW2) intervened, she was also attacked. Rajan's wife Vijayalakshmi (PW3) immediately rushed into the bedroom with her infant and locked herself. On seeing that, the accused broke open the door, entered the bedroom, took away a pair of gold earring and the ring worn by the child. They also took away the thali chain (MO-4) from Kamalam (PW2). After the robbery, they left the place.
3.2. Within a short time, Palanisamy and his wife Deivathal (PW5) came to Rajan's house for help and therefore, they learnt about the robbery there. Since Kamalam (PW2) and Saravanan (PW4) were injured, Rajan (PW1) took them immediately to Rajeswari Hospital at Palladam and thereafter, came to the Palladam Police Station and lodged a complaint (Ex.P1), based on which, G.P.Arumugam (PW13) Inspector of Police, registered a case in Palladam Police Station Crime No.1112 of 2004 under Section 394 IPC and prepared the printed FIR (Ex.P18). He went to the places of occurrence and prepared the Observation Mahazar (Ex.P2) in the presence of Shanmugam (PW7) and Palanisamy (not examined).
3.3. While investigation was in progress, Arumugam (PW13), the Investigating Officer, received information about the involvement of Kumar @ Mayakumar (A3) in the offence from the Inspector of Police, Manamadurai Police Station. The Inspector of Police, Manamadurai Police Station had arrested Kumar @ Mayakumar (A3) in connection with Crime No.56 of 2005 for the offences under Section 324 and 307 IPC and during the interrogation of Kumar @ Mayakumar (A3), he disclosed about his involvement in the robbery cases.
3.4. Arumugam (PW13) approached the Judicial Magistrate, Palladam and took Kumar @ Mayakumar (A3) into police custody on 24.02.2005 and on the information provided by him, the other accused, viz. Anthonyraj @ Soorapuli (A1), Palani @ Palanikumar (A2) and Nallusamy (A4) were identified and arrested.
3.5. On the disclosures made by the accused, the weapons and gold ornaments were recovered. The recoveries were not only in respect of this case, but also of other cases in which the accused were involved.
3.6. Apart from this case in Crime No.1112 of 2004, the involvement of Kumar @ Mayakumar, Palani @ Palanikumar and one Rajini in a similar incident that had taken place on 08.11.2004 in Palladam Police Station Crime No.984 of 2004 also came to light.
3.7. The Investigating Officer made arrangements for conduct of Test Identification Parade of the arrested accused by the witnesses and according
