SHAHUL HAMEED Vs. STATE

JUDGEMENT

(1.) The revision petitioners are accused 2 and 5 in SC No. 77 of 1986 on the file of the III Assistant Sessions Judge, Coimbatore and appellants 2 and 5 in C. A. No. 268 of 1986 on the file of the I Additional Sessions Judge, Coimbatore.

(2.) In the trial Court totally ten persons were tried for the offence under Sections 395, IPC. The learned trial Judge found all the ten guilty for the said offence and sentenced each one of them to undergo rigorous imprisonment for seven years. All the ten accused questioning the judgment of the trial court filed an appeal as stated earlier. Pending appeal, it is reported that the 4th appellant/ 4th accused died, and therefore the appellate court was called upon to decide the correctness of the judgment of the trial court with reference to only nine accused. The appellate judge on going through the entire evidence found that the prosecution had proved it's case for the offence under Section 395, IPC only against A2, A4 (since dead) and A 5 and confirmed the sentence of imprisonment is imposed on them by the trial Court. By the said judgment the appellate judge found that the other accused viz., A1, A3 and A6 to A10 are not guilty of the said offence and acquitted them. Aggrieved by the judgment of the appellate Court, accused 2 and 5 have filed this revision.

(3.) A few facts may be necessary to be set out for a proper appreciation of the issue involved in this case. P.W. 1 is the Driver of lorry bearing No. MDR 4183. P.W. 2 is the cleaner of the said lorry. It is the evidence of PW. 1 and 2 that on 15-11-1985 when they were proceeding to Ernakulam from Madurai in the said lorry to transport oil, the vehicle was intercepted immediately after mid-night on 15-11-1985 i.e., in the early hours of 16-11-1985 in a road near Jameen Uthukuli in Pollachi. They noticed ten people standing on the road and according to PWs. 1 and 2 one among the 10 pushed a cycle (marked as M.O. 1 in this case) in front of the lorry which made P.W. 1 to stop the lorry abruptly. Thereafter, according to PWs. 1 and 2 one among the 10 entered into the lorry and pushing P.W. 1 to the side, drove the lorry to the side of the road and parked it. Then he relieved P.W. 1 of M.O.s 2 - watch and some currency. While doing the above mentioned acts some injuries were caused to P.W. 1. Besides the above two accused the third person among the ten is stated to have assaulted PW.2. PWs. 1 and 2 claim that after committing the offence as referred to above the accused fled the scene. PWs. 1 and 2, who are the victims of the crime above referred to state that after the offence was perpetrated on them, they happened to meet a lorry coming in the opposite direction. PW. 4 is the cleaner of the said lorry. It is in evidence that PWs. 1 and 2 stopped the on coming lorry and told them about what had happened a little earlier. On the advice of the driver of the lorry, who is not examined in this case, PWs. 1 and 2 proceeded to the police station. Since they did not know the place where the police station is situated, PW. 1 enquired a taxi driver and he guided them to the police station. Enroute PWs. 1 and 2 are stated to have met two constables to whom also the witnesses disclosed the offence. On hearing the same the constables advised them to go to the police station and lodge the complaint. PW. 1 claims to have spoken to his employer over phone and thereafter the complaint came to be lodged at about 7.00 a. m. on 16-11-1985 in the police station, of which PW. 10 is the Sub-Inspector of Police. PW. 10 commenced the investigation.