LAWS(MAD)-1972-1-42

IN RE: DAKSHINAMOORTHY Vs. STATE

Decided On January 06, 1972
In Re: Dakshinamoorthy Appellant
V/S
STATE Respondents

JUDGEMENT

(1.) THIS is an appeal by the Appellant Dakshinamoorthy (A -l) against his conviction for an offence under Section 392, I.P.C. and the sentence of five years rigorous imprisonment. Mariappan, P. W. 1, is the complainant. He is an employee under Muthiah Konar, P. W. 2 on a monthly wage of Rs. 60. P. W. 2 the employer of P. W. 1, is engaged in the milk trade. P. W. 1, has got the duty of supplying the milk to the customers at Virudhunagar. He used to take the milk from the village of Vellakulam to Virudhunagar every morning and evening in milk cans on a cycle. Such supply of milk was to one Anjaneyar Hotel owned by P. W. 4. The two hoteliers, P. Ws. 4 and 5 speak to such regular supply by P. W. 1. The cycle belongs to P. W. 2. On 6th January, 1971, when P. W. 1 was returning on the cycle owned by his employer, P. W. 2, with the milk cans, he received Rs. 6 from P. W. 4 being the arrears due to the supply of milk. After attending the first show cinema, he was returning at about 11 p.m. to his village after leaving Virudhunagar. As he was proceeding on the main trunk road, two persons came from the western side and blocked the cycle. The time was 11.30 p.m . The place of occurrence was near the car track leading to one Nallamanickenpatti. The accused directed P. W. 1 to get down from the cycle and threatened him to take the money he had with him. The first accused had an aruval, M. Order 2. He beat P. W. 1 with the portion of the aruval, on the left shoulder and asked P. W. 1 to take the money. The first accused relieved P. W. 1 of the cash of Rs. 6 he had in his side pocket: The second accused had a small stick. There was a dynamo light, M. Order 1 in the cycle. The second accused pulled and removed it. Thereupon P. W. 1 was directed to proceed by walk with the cycle. The accused turned back. P. W. 1 walked on for some distance and then reached the village. After informing his employer P. W. 2, he gave a complaint Ex. P -1 at about 7 a.m. on 7th January, 1971 to the Sub -Inspector of Police, P. W. 9. In substance, the plea of the accused is one of denial. The learned trial Judge held that P. W. 1 was the victim of highway robbery, that he had been relieved of the sum of Rs. 6 and the dynamo light M. Order 1, at that time and that one of the two culprits had also used an aruval in the course of the occurrence. But, the learned Judge also held that these accused have not been properly identified by P. W. 1 at the identification parade. But, he acted on the testimony of P. Ws. 6 and 7 and the recovery of M. Order 1 and found the first accused -Appellant guilty under Section 392, I. P. C, after acquitting him under Section 392 read with S. 397, I. P. C. He also acquitted the second accused.

(2.) MR . Kumar Rajaratnam (amicus curiae) argued that inasmuch as the trial Judge has disbelieved the testimony P. W. 1 in respect of the identity of the Appellant at the identification parade, the conviction under Section 392, I. P. C. cannot be sustained. I have no doubt that when once the learned Judge chose to disbelieve the evidence of P. W. 1 in regard to identification of the Appellant there is no other material for him to convict the Appellant of the offence under Section 392, I.P.C.

(3.) MR . Kumar Rajarathnam was unable to cite any authority in support of his contention noticed above already.