JUDGMENT :

(Prayer: Criminal Appeal is filed under Section 374 of Criminal Procedure Code, to set aside the judgment of the learned Assistant Sessions Judge, Gingee, Villupur District made in S.C.No.185 of 2011 dated 01.08.2014 and acquit the accused/appellant herein from the charge.)

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

2. Convicted A1 to A4 are the appellants herein.

3. This criminal appeal is filed against the order dated 01.08.2014 passed by the learned Assistant Sessions Judge, Gingee, Villupur District, in S.C.No.185 of 2011, convicting the accused under Section 395 r/w 398 of IPC and sentencing them to undergo 10 years rigorous imprisonment with fine of Rs.2,000/- each, in default, to undergo rigorous imprisonment for a period of one month.

4. The respondent/police has filed a charge sheet against the five accused. A5/Siva died during trial and the trial was conducted as against the four accused, for the alleged offence under Section 395 r/w 398 of IPC.

5. The trial Court framed charges for the offence under Section 395 r/w 398 of IPC against the accused and the accused denied the same. In order to prove the charges, on the side of the prosecution, P.W.1 to P.W.16 were examined, Exs.P.1 to P.38 were marked and material objects MO.1 to MO.14 were produced.

6. After trial, by judgment dated 01.08.2015, the learned Assistant Sessions Judge, laid the conviction and sentence as stated supra.

7. Aggrieved over the said judgment of the conviction and sentence passed against the accused, they have preferred an appeal and they were also granted bail, in the year, 2017.

8. The learned counsel for the appellants would contend that the prosecution witnesses P.W.1, P.W.2 and P.W.4 to P.W.9 have not supported the prosecution case and supported the defence case and they have not declared as hostile witnesses. In support of his contention, the learned counsel also relied upon a decision of the Hon’ble Supreme Court reported in 2004(9) SCC 193 (Kunju Mohammed Vs. State of Kerala), wherein, the Hon’ble Supreme Court has held as follows:-

“In Criminal trial, while Prosecution Witness is not treated hostile, but his evidence helping the defense, the benefit of such evidence should go to the accused and not to the prosecution.”

9. The learned Government Advocate (Crl.side) appearing for the State would contend that all the prosecution witnesses were examined and there was no cross examination at the first instance. After completion of 313 proceedings, by way of recalling, P.W.1 and other prosecution witnesses mentioned by the counsel for the defence were recalled for cross-examination. After nearly 2 years, they have not supported the case of the prosecution and hence, they are won over by the defence and made submissions in support of the judgment of the trial Court.

10. Heard both sides and perused the records.

11. The defacto complainant namely, Senthilkumar was examined as P.W.1 and his wife Vijayasanthi was examined as P.W.2. P.W.3/S.Prakash, learned Judicial Magistrate, Tindivanam, who has conducted the identification parade, has submitted the Identification parade report under Ex.P2. While P.W.4 is the Village Administrative Officer (revenue witness) attested in the various seizure mahazar, P.W.5/Sundarajan is the Pawn Broker. P.W.6/Vijay, is the person, who pledged the jewels with P.W.5/Pawn Broker. P.W.7 and P.W.8 are the persons, who helped and withdrawn money through ATM from the account of the father-in-law of P.W.1. The another Village Administrative Officer, who is the attestor of the observation mahazar and seizure mahazar, was examined as P.W.10. P.W.11 is the private witness, who had also attested the observation mahazar and seizure mahazar. P.W.12/Elumalai, is the photographer, who took photos from the Bank CCTV footage. P.W.13/Harinath is the Branch Manager of the Indian Bank and P.W.14/Radhakrishnan, is the another Branch Manager of the State Bank of India. P.W.15/Dr.Uma, is the Assistant Surgeon, who has given treatme