(1.) This Criminal Revision Case is filed against the judgment of conviction and sentence dated 11.6.2004 passed in C.A. No. 62 of 2002 by the learned Additional District and Sessions Judge, FTC-II, Tuticorin, thereby confirming the conviction and the sentence of fine amount, but modifying the sentence of imprisonment of seven years Rigorous Imprisonment to five years Rigorous Imprisonment, made in S.C. No. 209 of 1995 by judgment dated 4.7.2002 by the learned Sub Judge, Kovilpatti. In so far as the Petitioner/A4 is concerned, the Trial Court convicted and sentenced him for the offence under Section 395 read with 397 of IPC (one count) to undergo seven years Rigorous Imprisonment and to pay a fine of Rs. 1,000/-, in default to undergo three months Rigorous Imprisonment and acquitted the Petitioner/A4 for the offence under Section 395 read with 397 of IPC in so far as the other count is concerned. According to the Prosecution, on 26.9.1992 at about 8.30 p.m. in the Vilathikulam-Sathur Main Road, the accused persons, namely, the Petitioner herein/A4 and A1 to A3 waylaid the witnesses P.W. 1 to P.W. 5 and committed robbery of a cash of Rs. 325 and another cash of Rs. 29700/- from those witnesses and also committed robbery of watch from one Velusamy Thevar and ornaments, namely, ear-stud, gold ring and chain from his wife and accordingly, the accused were charged for the offence under Sections 395 read with 397 of IPC (2 counts).
(2.) The Trial Court placing reliance on the evidence of PW. 1, PW. 3 to PW. 6 found all the accused persons/A1 to A4 guilty under Section 395 read with 397 of IPC (one count only) and convicted and sentenced them as stated above. But, however, the lower Appellate Court, while confirming the conviction and fine amount imposed by the Trial Court, including the Petitioner/A4, modified the sentence of imprisonment to five years Rigorous Imprisonment.
(3.) Mr. K.P.S. Palanivel Rajan, the learned counsel for the Petitioner contended that admittedly, the Petitioner/A4 was not identified by the witnesses P.W. 2 and her husband in the identification parade held in the prison and further, there was no specific overtact attributed against the Petitioner/A4. The learned counsel also submitted that no weapon was recovered from the Petitioner/A4 and there was no evidence that the accused caused any injury to the above said witnesses. The learned counsel would contend that the Petitioner/A4 was convicted on the basis of the recovery of gold ear stud from the house of the accused pursuant to his confessional statement to the Police and that when the Petitioner/A4 has not been identified by any of the witnesses and when there is no evidence to connect the petitioner/A4 with the actual participation in the dacoity, the recovery would not by itself prove that the article recovered at the instance of the Petitioner was the subject matter of dacoity. In support of his contentions, the learned counsel for the Petitioner relied on the decision of the Honourable Supreme Court reported in State of Rajasthan v. Talevar and Another, 2011 3 SCC(Cri) 457.