BIJU Vs. STATE

JUDGEMENT

(1.) THE Criminal Appeals arise out of the judgment of conviction and sentence, dated 7.10.2002 in S.C.Nos.28 of 2000 and 253 of 2001 on the file of the Additional District and Sessions Court (Fast Track Court No.2), Coimbatore, whereby, the appellant (A.1) in Crl.A.No.1478 of 2002 and the appellant (A.4) in Crl.A.No.1580 of 2002 were convicted for the offence under Section 457 IPC and each sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1,000/- each, in default, each to undergo simple imprisonment for six months and A.1 and A.4 were also convicted for the offence under Section 392 read with 397 IPC and each sentenced to undergo rigorous imprisonment for ten years. THE sentences imposed on A.1 and A.4 were directed to run concurrently. THE appellant (A.2) in Crl.A.No.1446 of 2002 and the appellant (A.3) in Crl.A.No.1490 of 2002 were convicted for the offence under Section 414 IPC and each sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/- each, in default, to undergo simple imprisonment for six months.

(2.) THE case of the prosecution is as follows: On the fateful day, on 3.6.1996 at about 8.30 p.m., when P.W.1 Ambi, his wife P.W.3 Omana, his daughter P.W.4 Usha @ Nisha and other two daughters Rajeswari and Vishnupriya, were inside the house/workshop, owned by the parents of P.W.9 Thilaka and when P.W.5 Raja, P.W.6 Rajesh, P.W.7 Sathish and one goldsmith Gopal, were doing their gold ornamental work/manufacturing work of the gold jewellery, A.1, A.4 and one Sibu (absconding accused) entered into P.W.1's house/workshop. As soon as they entered the house/workshop, they bolted the door. At that time, P.W.1, his wife and children were watching television. Sibu (absconding accused) was armed with revolver. A.4 Benny Kuriakose was armed with knife. A.1 Biju possessed cycle chain and chilli powder. When Sibu, the accused who possessed revolver directed the workers to handover the jewelleries, P.W.1 who was watching television, questioned as to what was the problem. Immediately, A.1 sprinkled the chilli powder on the eyes of P.W.1 and he immediately rushed to the kitchen to wash his eyes. A.4 entered the kitchen and removed the chain worn by P.W.3 Omana. THE third daughter of P.Ws.1 and 3, namely Vishnupriya started crying. A.4 used knife and threatened Vishnupriya not to cry. At that time, they heard the knocking sound of the door in the workshop. Immediately, A.4 went and opened the door and P.W.1's brother's son, Sivan returned to the house/workshop after handing over the jewelleries to Ashok Jewellers. THEn, A.4 bolted the door from inside. A.4 took P.Ws.1 and 3 and their daughters and also took Sivan into the place where P.W.1 and his family were lodged. Within 15 minutes, P.W.8 Santhosh knocked the door and once again, A.4 went and opened the door and pushed P.W.8 inside the house and bolted the door. After 15 minutes, one Arumugham, the grinder mechanic knocked the door. Again, immediately, A.4 took him inside the house and bolted the door. Sibu (absconding accused) took all the jewelleries in the workshop in one yellow bag and directed all the persons to enter into the kitchen and then the accused locked the door and threatened the witnesses not to shout and if they shout, they will kill them. THEn, the accused left the place. P.W.1 took 'aruval' and tried to open the kitchen door and they came to the workshop, but the workshop door was locked from outside. THEn, they opened the windows and made an alarm and then only, P.W.9 Thilaka, the house owner's daughter came to the first floor and opened the workshop. P.W.9 came to know about the robbery and she intimated the same to her mother. P.W.1 intimated the robbery to his brother Chellappan and immediately Chellappan rushed to the place of occurrence. THEn, P.W.1 gave a complaint Ex.P-1, to the Police Station at 9 p.m. Since P.W.1 was not well-versed in Tamil, he narrated the incident to Chellappan, who wrote the complaint, which was handed over to P.W.14 Marthandan, Inspector of Police and he received the complaint and registered a case in Crime No.1170 of 1996 for the offence under Section 392 IPC and prepared the printed FIR Ex.P-13. P.W.14 Marthandan, Inspector of Police went to the place of occurrence and prepared observation mahazar Ex.P-14 and drew the rough sketch Ex.P-15. He examined P.Ws.1, 3 to 7 and 9 and others recorded their statements. P.W.15 Kannan Kanagaraj, Inspector of Police arrested A.4 on 26.1.1997 and A.1 on 28.1.1997, in connection with R.S.Puram Crime No.47 of 1997 for the offence under Section 397 IPC and only on the basis of the confession given by A.1 and A.4 in that case, the Police came to know that the accused and their gang were involved in the present Crime No.1170 of 1996. P.W.15 Inspector of Police sent the copy of the confession to P.W.14 Inspector of Police. THEn, P.W.14 Inspector of Police, on the basis of the confession of A.1 and A.4, seized the material objects and he took steps for identification of the material objects by P.W.1. Accordingly, P.W.1 identified the weapons used by the accused. THEn, P.W.14 Inspector of Police also took steps for conducting test identification parade and gave Ex.P-4 requisition for the same. Ex.P-3 is the order of the Chief Judicial Magistrate for taking necessary action. In pursuance of the same, P.W.2 Judicial Magistrate conducted the test identification parade, after following the formalities and issued Ex.P-5 is the proceedings of the test identification parade. On 28.1.1997, P.W.14 Inspector of Police arrested A.2 and A.3 at about 8 a.m., near the Corporation School at Maa.Naa.Kaa. Street, when A.2 and A.3 were proceeding in Kinetic Honda two-wheeler (M.O.13) bearing Registration No.TN-37-K-2793,, which was seized in the presence of P.W.10 Thangappan and one Kunjuraman. THEn, the Police recorded the confession of A.2 in the presence of the same witnesses. THE admitted portion of the same is Ex.P-6. In pursuance of the same, A.2 Santhosh identified P.W.13 Sivakumar, from whose shop, M.Os.6 to 9 gold ingot and M.O.10 gold bracelet, were recovered in the presence of the same witnesses under Ex.P-9 mahazar. A.3 Srinivasan also gave a confession and the admitted portion of the same is marked as Ex.P-7. In pursuance of the same, A.3 identified P.W.12 Vellingiri, who was residing in Maa.Naa.Kaa. Street and he handed over M.O.1 gold chain and M.Os.2 to 5 gold ingot, which were seized in the presence of the same witnesses, under Ex.P-8 mahazar. P.W.14 Inspector of Police examined P.W.12 Vellingiri and P.W.13 Sivakumar and recorded their statements. On the basis of the confession given by A.2, P.W.14 Inspector of Police also seized TN-37-T-4532 Hero Honda Motor Cycle under Ex.P-12 mahazar and the said Hero Honda Motor Cycle is marked as M.O.12. THEn, P.W.14 Inspector of Police despatched the material objects to the Court and remanded the accused to judicial custody. On the basis of the confession given by A.2 Santhosh, the Police went to Kerala State at Thottupuzha and in the presence of the father of A.2 namely Arunachalam, they made a search and Ex.P-16 is the search list and seized M.O.11 revolver and M.O.3, in the presence of same witness and sent M.O.11 revolver to the Court and with a requisition Ex.P-17, it was sent for ballistic expert's opinion. Since P.W.14 Inspector of Police was transferred, P.W.16 Inspector of Police took up the matter for investigation. He came to know that the accused also committed the offence under Sections 3 and 25 (1-B)(1-A) of the Arms Act and before filing the charge sheet, he obtained sanction from the Police Commissioner and gave a requisition and received the sanction under Ex.P-18. On 18.4.1997, after concluding the investigation, P.W.16 Inspector of Police filed the charge sheet against the accused for the offences under Sections 147, 148, 450, 395 and 397 IPC and Section 25(1-B)(1-A) of the Arms Act.

(3.) LEARNED counsel for A.1 and A.4 further contended that even though the services of the finger print expert were utilised, no finger print expert was examined and the report of the finger print expert was not marked. Though the photographer's services were utilised, but the photographs were not marked and the photographer was not examined before Court. The arrest and recovery from A.2 and A.3 were not proved by way of examining the attestors of the confession and recovery. It is highly doubtful that M.O.10 gold bracelet belongs to P.W.1, because P.W.1 has not stated that M.O.10 bracelet has been stolen by the accused. As per the evidence of P.Ws.5,6,7 and 8, P.W.1, at the time of commission of offence, 800 gms. of gold was not given by P.W.11 on that day. From the said 800 gms. of gold, half portion was converted as chain and the other half portion was converted as gold wire for making a chain, but the recovery was only gold ingot and so far, P.W.11, the owner of gold, has not filed any application for return of M.Os.2 to 9 gold ingot.