JUDGMENT :

(Prayer: Criminal Appeal is filed under Section 374(ii) of Criminal Procedure Code, to call for the records in S.C.No.174 of 2008, dated 12.08.2010 on the file of the Additional Special Judge, Krishnagiri and set aside the conviction and sentence.)

1. The matter is heard through “Video Conference”.

2. Convicted second accused is the appellant herein.

3. The appellant was convicted for the offence under Section 397 of IPC and sentenced to undergo rigorous imprisonment for 7 years and also to pay a fine of Rs.300/- in default to undergo two months rigorous imprisonment. Thereafter, the appellant was convicted for the offence under Section 450 of IPC and sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.200/-, in default to undergo two months rigorous imprisonment and further the appellant submits that he was convicted for the offence under Section 342 of IPC and sentenced to undergo rigorous imprisonment for six months in S.C.No.174 of 2008 on the file of the Additional Special Judge, Krishnagir, judgment dated 12.08.2010.

4. The respondent-police filed a final report in crime No.250/2002 for the offence under Section 395 r/w 397, r/w 394, 342 of IPC and Section 27 of Arms Act. Initially, the final report was laid against A1 to A7. A6 and A7 died. Pending trial, the charges stands abated against A6 and A7. Thereafter, in view of the non bailable warrant pending against A3 to A5, the case against A3 to A5 was split up and renumbered as P.R.C.No.39/2008. Before the trial Court, A1/Irsad Ahamad @ Aslam and A2/Anil Kumar Sharma, were tried and the trial Court had convicted and sentenced them as stated supra and hence, the appeal by A2. Whether, A1 has filed appeal or not was not known.

5. The record reveals that the judgment passed by the Sessions Judge was delivered on 12.08.2010, after lapse of 5 1/2 years from the date of the judgment of the Sessions Judge, the appellant/accused no.2, appears to have moved the High Court and filed the appeal with the delay of 1510 days, the same appears to have been condoned. Since he was in custody.

6. The learned counsel for the appellant would contend that on the date of the occurrence, the accused/appellant was working in the Uttar Pradesh Road Transport Corporation and the Attendance Register was marked in another case, was marked before the lower Court, during the questioning under Section 313(b) of Cr.P.C., the same was not considered.

7. The learned Government Advocate (Crl.side) for the respondent would contend that from the intimation received from the respondent-police, the accused has already underwent the sentence period and hence nothing survives. In reply thereto, the appellant counsel would contend that in the event of appeal being allowed and acquitted, he well get service benefit from the concern State Government.

8. The case of the prosecution as could be seen from the prosecution witnesses are as under:

i) The accused A1 to A7 are close associates and they are involved in High Way Petrol Bunk dacoity. On 11.06.2002 at about 1.35 am at I.B.P., Petrol Bunk near Gurubarapalli on the Krishnagiri to Hosur National High Ways, the accused 1 to 7 conjointly committed dacoity, A1, A2, A3 armed with “Kathi” and A6 armed with revolver while committing decoity A1, A2, A3 and A6 criminally trespassed into the cabin of the I.B.P., Petrol Bunk and threatened the witnesses Boopathi, Gundappan, Madheswaran, Noormohamed and Sankaran with dire consequence and locked them in the room and wrongfully confined them and voluntarily caused hurt while committing dacoity to witness Boopathi, Gundappan and Madheswaran with a stick the accused in the course of the same transaction conjointly committed dacoity of Rs.6,000/- which was kept in the Table Drawer the accused A4, A5, A6 were standing outside the petrol bunk and were watching and aiding A1, A2, A3 and A6 to committing the offence of decoity and thereby A1 to A7 appear to committed an offence punishable under S