SHETTY ALIAS RAMANUJAM Vs. STATE

JUDGEMENT

(1.) THIS revision is directed against the judgment of the learned First Additional Sessions Judge, Madurai, confirming the conviction and sentence passed by the learned Second Additional Assistant Sessions Judge, Madurai, against the petitioner under Section 341, I.P.C., to undergo simple imprisonment for one month, but altering the conviction under Section 397, I.P.C., into one under Section 392 read with Section 397, I.P.C., but confirming the sentence of seven years rigorous imprisonment with a direction that the sentences would run concurrently.

(2.) THE brief facts of the prosecution case which give rise to this revision can be narrated as follows: P.W. 1 is the resident of Kumbakonam. It is alleged that on 14.5.1981, he came to Madurai in connection with the saree business and he was staying at New Raja Lodge at Thanappa Mudali Street. The fourth accused, who was driving cycle -rickshaw for hire, was employed by P.W. 1 to visit various shops. On 15.5.1981, P.W. 1 sold some of the sarees to P.W.5 at his shop and he gave Rs.286/ - and a cheque (Exhibit P. 19) for Rs.2,000/ -On the same night, he vacated the room in the Lodge and proceeded to the bus stand at Madurai in the cycle -rickshaw driven by the fourth accused, but the fourth accused did not take him to the bus stand straightway. He was driving the cycle -rickshaw along Alanganallur Road and after reaching the railway gate near the bridge, the fourth accused stopped the rickshaw and under the pretext of attending to the natural call, he went underneath the bridge. At that time, another cycle -rickshaw driven by P.W.2 carrying accused 1 to 3 and 5 came there. The said accused got down from the said rickshaw. The fourth accused also joined with them. At the instigation of the fourth accused, the other accused began to attack P.W. 1 while the fourth accused caught hold of the neck of P.W. 1 . The second accused cut P.W. 1 with the aruval (M.O. 48) on his right thigh and waist indiscriminately. The fifth accused beat him with hands on his back. The first accused broke a soda bottle in the rickshaw and attempted to beat him with the soda bottle. When P.W. 1 warded off, it fall on his right hand and caused two injuries. The third accused beat P.W. 1 with M.O. 49 irumbu pattai as a result of which P.W.1 sustained injury in his left palm. While accused 1 and 5 caught hold of P.W. 1, the fourth accused removed the leather bag kept in his cycle -rickshaw and kept it in the cycle -rickshaw of P.W.2. The second accused took the box (M.O. 27) of P.W. 1 and kept in the cycle -rickshaw of P.W. 2. Then accused 2 to 5 proceeded in the cycle -rickshaw towards north. The first accused was running towards south. P.W. 1 chased them raising noise. When they were approaching a banian tree, on hearing the noise of P.W. 1, P.W. 3 and two others caught hold of the first accused and he was taken to the Central Bus Stand in a town bus driven by P.W.10. Then they gave information to the Control Room Police. P.W. 17 and other police constables came there and they took the first accused, P.W. 1 and P.W.3 to B -3 Police Station. P.W. 1 was sent to the Government Rajaji Hospital and he was treated by P.W. 15 for the injuries sustained by him and he was admitted as an inpatient. P.W.20, the S.I. of Police rushed to the hospital and recorded the complaint (Exhibit P -1) given by P.W. 1 at 3 a.m., on the next day. Then he registered a case and arrested the first accused at B -3 Police Station. The second accused was arrested by P.W.21 on 23.5.1981 at Mariamman Theppakula Maiyya Mandapam. He gave a voluntary statement, the admissible portion of which was marked as Exhibit P -7. In pursuance of the said statement, he took P.W.21, the Deputy Inspector of Police and his party to the place behind the bridge near railway gate level crossing at Thathaneri Anaiyur Road and produced M.O.48 aruval, which was seized under the mahazar Exhibit P -8. Then the second accused took P.W.21 and his party to P.W.13, who was put up at Melakailasapuram and from him M.O.27, the box along with sarees (M.Os.3 to 6, 18 to 25, 32 to 38, 41 and 42) were recovered under the mahazar Exhibit P -9. On 25.5.1981, P.W.21 arrested accused 3 and 5 and on the information given by third accused, M.O.49 irumbu pattai was recovered under Exhibit P -12 and M.O. 31, the plastic bag along with M.Os.15 to 17 under Exhibit P. 14. In pursuance of the confession given by the fifth accused, M.O.28, the green bag along with M.Os. 7 to 14, 29, 30, 39 and 44, the sarees, were recovered under Exhibit P.13. On 26.6.1981, an identification parade was held by P.W.11 in which P.W.1 identified four accused except the third accused while P.W.2 identified all the accused. After completing the investigation, charge -sheet was filed against all the accused under Sections 341 and 397, I.P.C.

(3.) THE plea of the accused was one of denial. They further submitted that they were all taken to the police station long prior to their alleged date of arrest and they were shown to P.W. 1 at the hospital, that P.W.2 was undergoing imprisonment in the same jail where the accused were kept and hence no reliance could be attached to the identification parade and that this case has been foisted on them on suspicion.