IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.01.2019 CORAM THE HONOURABLE MR.JUSTICE M.DHANDAPANI Crl.A.No.6 of 2005 Madan ... Appellant Vs.

State: by Inspector of Police, P.6 Kodungaiyur Police Station, Chennai.

(Crime No.121 of 2001) ... Respondent Prayer:

Appeal filed under Section 374 of Cr.P.C., against the judgment of the learned Additional Sessions Judge, Fast Track Court No.2, Chennai made in S.C.No.77 of 2002 on his file dated 20^th October 2004, convicting the appellant herein under Section 392 read with 34 and 109 I.P.C. and sentencing him to undergo seven years R.I. And to pay fine of Rs.1000/- in default to undergo 3 months S.I.

For Appellant : Mr.S.Pushpakaran Legal Aid Counsel For Respondent : Mr.R.Ravichandran Government Advocate (Crl. Side)

J U D G M E N T

The appellant has filed this appeal seeking to set aside the judgment dated 20.10.2004 made in S.C.No.77 of 2002 by the learned Additional Sessions Judge, Fast Track Court No.2, Chennai.

2.The appellant is the fourth accused in the case in S.C.No.77 of

2002. The brief facts of the case is as follows: On 16.02.2001 at about 10.00 a.m., two un-known persons entered into the house of P.W.1 at No.72, 4^th Street, Eveready Colony, Kodungaiyur; one through the front gate and another through the backside gate. P.W.2/ mother – in – law of P.W.1 saw the person who entered through the backside gate and enquired as to whom he is and why he has entered the house through the backside gate. He replied that he has come in search of house on rental basis and thereafter he along with the other person entered the house through the front side gate.

3.Thereafter, P.W.2 asked them to see the house at the upstairs of the house and also interacted with the persons as to the rent and advance for the house. Thereafter, the two persons went saying that they will come later. P.W.2 was working in ESI hospital and hence she left the house for her employment. At about 4.00 p.m. in the evening when P.W.1 was alone in the house and was giving Kanji for her child, the two unknown persons who came in the morning came again and enquired as to whether the rent and advance would be reduced. P.W.1 replied that it should be asked to her mother – in – law.

Thereafter, they asked for water.

4.When P.W.1 brought water, one of the persons took the child from her and kept knife at her child's neck. Thereafter, they tied her hands, shut her mouth and committed robbery of a sum of Rs.2,400/- and stone studded necklace weighing five sovereigns, chain weighing two sovereigns, two bangles weighing two sovereigns, stone studded ear-ring weighing one sovereign, mattal weighing half sovereign, two finger ring weighing quarter sovereign, bracelet weighing two sovereigns, two finger ring weighing one sovereign, two finger ring weighing half sovereign, one finger ring weighing quarter sovereign, chain weighing half sovereign, three small finger rings, one doller, in her house. Hence, P.W.1 lodged Ex.P1 complaint. P.W.7 received the complaint and registered a case in Crime No.121 of 2001 under Section 392 of IPC under Ex.P6/ FIR.

5.Thereafter the Investigating Officer took up the case for investigation and went to the place of occurrence and prepared observation mahazer and rough sketch/ Ex.P7. However the said observation mahazer was not marked as exhibit. Thereafter, P.W.7 arrested accused 1 to 4 on 19.02.2001 and recorded their confession statements and recovered the theft articles from the accused and also seized the vehicle and weapons used for committing robbery under seizure mahazers/ Ex.P10 and Ex.P11 in the presence of one Gulasekaran and one Amirjan/ P.W.4. However, the said Gulasekaran was not examined as witness.

6.After completing investigation, the Investigating Officer laid final report as against the accused before the learned X Metropolitan Magistrate, Egmore, Chennai. The case was committed to the Court of Sessions by the learned X Metropolitan Magistrate, Egmore, Chennai and made over to the Trial Co