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IN THE COURT OF SESSIONS (FAST TRACK MAHILA) JUDGE, NAMAKKAL
Present: Tmt. S. Sashirekha M.L.,
Sessions Judge
Friday the 20th day of November 2020
Criminal Appeal No.24/2020
...
From what court the appeal is : Additional Assistant Sessions Judge
preferred Court, Namakkal.
Number of the case in that court : Sessions Case No.7/2019
Name and description of the : 1. Satheesh (34 years)
appellants/Accused s/o late Muthu
2. Annavi @ Pasupathi (23 years)
s/o Sannasi
Name of the Respondent/Complainant : State: Inspector of Police, Mohanur
Police Station. Cr.No.63/2014
The sentence and law under which it : A1 is convicted and sentenced to
was imposed in the lower court. undergo imprisonment of 7 years and
to pay a fine of Rs.1,000/- in default
of payment of fine to undergo a
punishment of 6 months simple
imprisonment for the offence under
section 392 IPC.
A2 is convicted and sentenced to
undergo imprisonment of 7 years and
to pay a fine of Rs.1,000/- in default
of payment of fine to undergo a
punishment of 6 months simple
imprisonment for the offence under
section 394 r/w 397 IPC.
Whether confirmed, modified or : Confirmed.
reversed and if modified, modification
Date of presentation : 12.02.2020
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Date of filing : 14.02.2020
Date of notice issued by the court to : ---
appear
Date of bail bond if the appellant has : ---
been let out on bail
Date of the appellant ordered to : ---
appear
Date of hearing : 07.11.2020
Date of judgement / order : 20.11.2020
This criminal appeal came up before me 07.11.2020 for final hearing in the
presence of Tr. Pazha.Sankar advocate for the appellants and the Special Public
Prosecutor for the respondent and upon hearing the arguments of both side and
perusing the connected case records and having stood over till this day for
consideration this court delivered the following:
JUDGEMENT
1. This appeal filed by the appellants/accused u/s 374 (3)(A) CrPC against
the judgement of conviction in SC. No.7/2019 on the file of the Additional Assistant
Sessions Judge Court, Namakkal on 29.01.2020.
2. The appellants are the accused and the respondent is the complainant
before the trial court. For the sake of convenience, the parties would be referred as
referred in the trial court.
3. The case of prosecution case in short is as follows:
That on 10.02.2014 around 02.15 p.m the victim Nirmala was returning from
her work in the Valayapatti road, a white colour TATA Indica car stopped near her
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and restrained her from moving further, that a person got down from the car and
showing an aruval threatened her to enter into the car, and Nirmala frightened by the
act of that person she entered into the rear side of the car and when the both the
persons in the car asked her to give her chain, she removed the chain and kept it in
her hand and said that she would give the chain to them only if they set her free.
That the persons asked her to remove the ear rings also and she holding the chain in
her hand, opened the back door and jumped out of the moving car and at that time,
the person inside the car snatched her hand bag which had a Nokia cell phone, one
ATM card, and Rs.100/- in it. By falling out of the car Nirmala sustained injuries on
the right wrist, both elbows, on the ankle, forehead and nose. She had informed her
husband about the occurrence, through the cell phone of the lorry driver Nagaraj.
Nirmala’s husband has taken her to M.M hospital. The doctor who has treated
Nirmala in the said hospital states that she has sustained grievous injury. Hence the
1st accused has committed offence punishable under section 392 and 2 nd accused
has committed offence punishable under section 394 r/w 397 IPC.
4. The trial court after hearing both side and considering the available records,
found the both accused were guilty and A1 Satheesh is convicted and sentenced to
undergo imprisonment of 7 years and to pay a fine of Rs.1,000/- in default of
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payment of fine to undergo a punishment of 6 months simple imprisonment for the
offence under section 392 IPC. A2 Annaavi @ Pasupathi is convicted and
sentenced to under go imprisonment of 7 years and to pay a fine of Rs.1,000/- in
default of payment of fine to undergo a punishment of 6 months simple
imprisonment for the offence under section 394 r/w 397 IPC. The period already
undergone by the accused as the remand period shall be set off as against their
conviction under section 428 of Cr.P.C. On the side of prosecution PW1 to PW7
have been examined and P1 to P10 and MO1 to MO3 are marked. On the side of
defendants DW1 is examined. No documents marked on the side of defence.
5. Having been aggrieved against the judgement of conviction by the trial
court the appellant / accused has preferred this appeal on the following grounds:
That the judgement of the trial court contrary to law and weight of evidence.
That the defence of the appellant is not be witnessed by the trial court. That the trial
court has failed to note that the investigation officer has not conducted the
identification parade. That PW1 has not clearly identified the accused. That the trial
court has failed to consider the contradictions in the evidence of the prosecution
witnesses. That PW1's evidence has not been appreciated in proper manner. That
the trial court has wrongly found the accused guilty and hence the trial court
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judgement holding both the accused guilty of the offence and convicting them is to
be setaside.
6. The points for consideration:
a. Whether the judgement of the trial court suffers from any illegality or
infirmity?
b. Whether there is any valid ground to allow the appeal?
7. This court perused the both side evidences, documents and other materials
available on record. It is seen from the records that the appellants/accused were
charged u/s 392 and 394 r/w 397 IPC and after trial the A1 is convicted and
sentenced to undergo imprisonment of 7 years and pay a fine of Rs.1,000/- in
default of payment of fine to undergo a punishment of 6 months simple
imprisonment for the offence under section 392 IPC and A2 is convicted and
sentenced to undergo imprisonment of 7 years and to pay a fine of Rs.1,000/- in
default of payment of fine to undergo a punishment of 6 months simple
imprisonment for the offence under section 394 r/w 397 IPC with default clause.
8. Though PW1 alone is the eye witness to the occurrence, her evidence
before the trial court is clear, cogent and natural. She has specifically stated that on
10.02.2014 around 02.15 p.m when she was returning from her work in the
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Valayapatti road, a white colour TATA Indica car stopped near her and restrained
her from moving further, that a person got down from the car and showing an aruval
threatened her to enter into the car, and PW1 frightened by the act of that person,
entered into the rear side of the car and when the both the persons in the car asked
her to give her chain, PW1 removed the chain and kept it in her hand and said that
she would give the chain to them only if they set her free. That the persons asked
her to remove the ear rings also and PW1 holding the chain in her hand, opened the
back door and jumped out of the moving car and at that time, the person inside the
car snatched her hand bag which had a Nokia cell phone, one ATM card, and
Rs.100/- in it. By falling out of the car PW1 sustained injuries on the right wrist,
both elbows, on the ankle, forehead and nose. She had informed her husband about
the occurrence, through the cell phone of the lorry driver PW5 Nagaraj who has
corroborated the evidence of PW1. PW1’s husband has taken PW1 to M.M hospital.
The doctor who has treated PW1 in the said hospital is examined as PW6 and he
has deposed that PW1 Nirmala had a broken forearm and a broken wrist and that
cut injuries were found on the nose and stomach. Stating the first injury as a
grievous one he has issued the Accident Register exhibit P7 and wound certificate
exhibit P8.
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9. The appellant’s argument is that there is no connecting link of the accused
to the offence, that in the complaint and the FIR the name of the accused does not
find place and that PW1 has not identified the accused in Court is taken up for
consideration.
The offence alleged to be committed by the accused is one of roberry using
deadly weapon and causing hurt. The offence has been committed by persons who
are unknown to PW1. As PW1 does not know about the persons involved in the
offence at the time of the occurrence, she had not mentioned about their names in
the complaint and hence their names does not find place in the FIR also. On perusal
of PW1’s evidence in full it is evident that PW1 Nirmala the de-facto complainant
has specifically identified both the accused in the Trial Court. On seeing both
accused who had appeared in the court PW1 has deposed that the accused with the
beard is the person who had driven the car on the occurrence day and that the
person without the beard is the 2nd accused. PW1 de-facto complainant has also
identified the Material objects 1 to 3, namely the nokia cell phone, two aruvals and
TATA Indica car TN 22 AW 4412 marked through two photos.
10. The defence counsel argued that the prosecution has not proved the case
against the accused. That the accused had not committed any offence as alleged by
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the prosecution, that on request PW1 was given lift in the car and that PW1 by
herself jumped out of the car when she was demanded travelling charge and
thereby sustained injuries. That DW1 has clearly deposed about the real facts and
on the basis of DW1 evidence it is to be decided that the case against the accused
has not been proved by the prosecution. DW1’s evidence is taken up for
consideration. DW1 Chinnakuti is none other than the wife of Sathish who is the 1st
accused herein. DW1 has deposed that on 10.02.2014 she was travelling with her
husband Sathish and her brother and that PW1 had asked for lift and that she was
given lift and when travelling charge of Rs. 30/- was asked to PW1, PW1
expressed that it was very high and got down by herself from the car. That no
occurrence as alleged by the prosecution has taken place. As per the prosecution
case, only two accused were in the car. The 1 st accused driving the car and the 2nd
accused sitting in the seat near the driver. The said DW1 has not produced any
documents to show that she was also travelling with the accused and PW1 on the
occurrence day. No proof is filed to show that the 1 st accused and DW1 were doing
fruit business. No proof for buying the fruits in wholesale for the purpose of selling it
has been filed on the side of defence to substantiate the evidence of DW1. Hence
there is no proof to show that DW1 was also travelling in the same car at the time
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of the occurrence and DW1 being the wife of the first accused Sathish the evidence
of DW1 being that of an interested witness is held to be not admissible.
11. The trial court has held the first accused guilty under section 392 IPC
and sentenced the first accused to undergo imprisonment of 7 years and pay a fine
of Rs.1,000/- in default of payment of fine to undergo a punishment of 6 months
simple imprisonment and held the second accused guilty under section 394 r/w
397 IPC and sentenced the second accused to undergo imprisonment of 7 years
and pay a fine of Rs.1,000/- in default of payment of fine to undergo a punishment
of 6 months simple imprisonment.
12. Section 390 IPC reads as follows:-
“Theft is ‘robbery’ if, in order to the committing of the theft, or in committing
the theft, or in carrying away of attempting to carry away property obtained by the
theft, the offender, for that end, voluntarily causes or attempts to cause to any
person death or hurt or wrongful restraint”
Section 392 IPC reads as follows:-
"Punishment for robbery “ Whoever commits robbery shall be punished with
rigorous imprisonment for a term which may extend to 10 years and shall also be
entitled to fine."
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Section 397 reads as follows:-
“Robbery or dacoity with attempt to cause death or grievous hurt--- If at the
time of committing robbery or dacoity, the offender uses any deadly weapon or
causes grievous hurt to any person or attempts to cause death or grievous hurt to
any person he shall be punished for not less than seven years”
13. From the evidence of PW1 Nirmala it is evident that on 10.02.2014
around 02.15 p.m when she was returning from her work in the Valayapatti road, a
white colour Tata Indica car stopped near her and restrained her from moving
further, that the second accused Annaavi @ Pasupathi got down from the car and
showing an aruval threatened her to enter into the car, and PW1 frightened by the
act of that person PW1 entered into the rear side of the car and when the both the
persons in the car asked her to give her chain, PW1 removed the chain and kept it in
her hand and said that she would give the chain to them only if they set her free.
That the persons asked her to remove the ear rings also and PW1 holding the chain
in her hand, opened the back door and jumped out of the moving car and at that
time, the person inside the car snatched her hand bag which had a Nokia cell phone,
one ATM card, and Rs.100/- in it. By falling out of the car PW1 sustained injuries
on the right wrist, both elbows, on the ankle, forehead and nose. PW1’s husband has
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taken PW1 to M.M hospital and the doctor who has treated PW1 in the said hospital
is examined as PW6 and he has deposed that PW1 Nirmala had a broken forearm
and a broken wrist and that cut injuries were found on the nose and stomach.
Stating the first injury as a grievous one he has issued the Accident Register exhibit
P7 and wound certificate exhibit P8.
14. It is evident that the prosecution has proved through clear evidence that
A2 brandished the aruval and made PW1 enter into the car and after PW1 entered
into the car due to fear, both the accused had asked PW1 Nirmala to remove her
chain and ear rings and give to them and PW1 resisted and jumped out of the car
and at that time the second accused snatched PW1’s hand bag which had Nokia cell
phone, ATM card and Rs.100/-. PW1 Nirmala has sustained fracture on the
forearm and wrist and in exhibit P8 the said injury is stated to be grievous injury and
thereby the offence under section 392 against first accused and offence under
section 394 r/w 397 and the accused has been rightly held guilty and adequately
convicted by the trial court and it is decided that there is no need of interference.
15. In the result, this appeal is dismissed. The trial court judgement in
S.C.07/2019 dated 29.01.2020 passed by the learned Additional Assistant
Sessions Judge Namakkal is confirmed. The trial court is directed to secure both the
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accused and commit them to prison to undergo the remaining period of sentence
under intimation to this court.
Dictated to the steno typist directly in the computer, typed by her, corrected
and pronounced by me in the open court on the 20th day of November 2020.
sd/-S. Sashirekha
Sessions Judge
Fast Track Mahila Court
Namakkal
Copy to:
Additional Assistant Sessions Court, Namakkal.
(with entire records received)
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Judgement in
Criminal Appeal No.24/2020
20.11.2020.
