A conviction based on a complaint treated as a dying declaration is unsustainable when the cause of death is not in question and lacks corroborative evidence.

JUDGMENT :

This Criminal Appeal has been filed by A1, challenging the conviction and sentence imposed upon him, vide judgment dated 23.04.2024 in S.C.No.252 of 2023, on the file of the learned V Additional Sessions Judge at Chennai.

2.(i) It is the case of the prosecution that the defacto complainant, was running a petty shop near his house; that on 10.04.2022 at about 8.00 p.m., the appellant/A1 and A2 one Yuvaraj went to the shop of the defacto complainant with an intention to extort money; that they asked for a cigarette packet; that the defacto complainant asked for money; that the appellant/A1 and A2 asked him as to how dare he could ask for money as the other shopkeepers in the market were frightened of them and abused him in filthy language; that thereafter they robbed Rs.1,000/- from the cash box and attacked the defacto complainant with a knife and thereafter, fled from the scene.

(ii) On the complaint given by the defacto complainant, marked as Ex.P1, an FIR [Ex.P5] was registered on 10.04.2022 by PW5, the Sub Inspector of Police, attached to the respondent police for the offences under Sections 294(b), 336, 427, 324, 307 and 392 r/w 397 of the IPC. PW7 took up the investigation, went to the scene of the occurrence, prepared the observation mahazar [Ex.P8] and rough sketch [Ex.P9], examined the witnesses, obtained the Accident Register [Ex.P6] for the injuries sustained by the defacto complainant and filed the final report against the accused for the offence under Sections 294(b), 427, 324, 392 r/w 397 and 506(ii) of the IPC, before the learned II Metropolitan Magistrate, Egmore, Chennai.

(iii) On the appearance of the appellant, the provisions of Section 207 Cr.P.C., were complied with, and was committed to the Court of Sessions i.e., Principal Sessions Judge, Chennai, and the case was made over to the learned V Additional Sessions Judge, Chennai, for trial. The trial Court framed charges against the appellant/A1 for the offences under Sections 294(b), 392 r/w 397, 394 and 506(ii) r/w 34 of the IPC and against A2 for the offences under Sections 294(b), 427, 392 r/w 397 r/w 34 and 506(ii) r/w 34 of the IPC , and when questioned, the accused pleaded 'not guilty'.

(iv) To prove the case, the prosecution examined 7 witnesses as P.W.1 to P.W.7, marked 19 exhibits as Exs.P1 to Ex.P19 and marked 2 material objects as M.O.1 and M.O.2. When the accused were questioned, u/s.313 Cr.P.C., on the incriminating circumstances appearing against them they denied the same. The accused neither examined any witness nor marked any document on their side.

(v) On appreciation of oral and documentary evidence, the trial Court found that the prosecution had established its case beyond reasonable doubt and held the appellant/A1 guilty of the offences under Sections 294(b), 392 r/w 397, 394 and 506(ii) r/w 34 of the IPC and sentenced him as follows:

However, the trial Court acquitted A2, as he was not found guilty of the charges levelled against him. Hence, A1 has preferred the appeal challenging the said conviction and sentence.

3. Heard, Mr.F.Wellington, learned counsel appearing for the appellant/A1