In re: Rayar

M.N. Moorthy, J.—Crl. R.C. No. 304 of 1980 is a reference under S. 395 read with S. 397, Crl. P.C. by the learned Sessions Judge, South Arcot. The reference arises under the following circumstances:-The accused was charged by the Inspector of Police, Chidambaram, for offences under Ss. 394 and 397, I.P.C. The accused was committed to sessions in P.R.C.10 of 1978, on the file of the Judicial Second Class Magistrate, Chidambaram and it was numbered as S.C. No. 16 of 1979 and made over to the Assistant Sessions Judge, Chidambaram, for trial.

The learned Assistant Sessions Judge ''accepted the case of the prosecution and convicted the accused under Ss. 394 and 397, I.P.C. and sentenced him to undergo rigorous Imprisonment for three years under each of the sections, sentences to tune concurrently.

Against the said conviction and sentence, the accused preferred an appeal from jail and the same was pending in C A. No. 286 of 1979.

Under S. 397, I.P.C., the minimum sentence is seven years. Having convicted the accused under S. 397, I.P.C. the trial Court has failed to pass the minimum sentence prescribed for the said offence. Under the circumstances, while the appeal of the accused was pending before the learned Sessions Judge, the reference was made to the High Court under S. 395, Crl. P.C read with S. 397, Crl P.C. and the same is numbered as Crl. R.C. No. 304 of 1980.

When the matter came up for bearing before the High Court on 10th April. 1981, the High Court transferred C.A. No. 2X7 of 1979 on the file of the Sessions Judge, South Arcot, filed by the accused the file of the High Court to be heard along with Crl. R.C 304 of 1980. The High Court further issued notice to the accused to show cause why the sentence imposed on him should not be enhanced. The appeal transferred is numbered as Tr.C.A. No. 292 of 1981. As the appeal itself is before me, the criminal revision need not be considered separately. The case against the accused briefly is as follows:

Susila, P.W. 2, belongs to Keezhanatham village. As usual, at about 5 a.m. on 16th June, 1978, she went out to answer calls of nature in Sabanayagam Pillai garden, which is very near her house. At that time, she saw the accused coming from west towards east. On seeing him she tried to return home but the accused dragged her by the neck and pushed her into the garden. She fell down hitting against a stone and sustained injuries on her left knee and neck. When she attempted to raise an alarm, the accused took out a knife and threatened to stab her. He snatched her band gold chain, another minor chain and the thread entraining thali and gundu and ran away from the place. P.W. 2 returned home weeping. She told P.Ws.4 and 5 about the occurrence. They went to the spot and found a torch light M.O.I and a broken chain piece M.O.2.

P.W. I is the husband of P.W. 2. He had been to Chidambaram and returned home at about 8 a.m. on the day of the occurrence. He came to know about the occurrence from his wife. When they searched for the accused, he was not to be found. Then, he along with P.W. 2 went to Chidambaram Taluk police station and gave a report, Ex. P1. P W 10, the Sub Inspector of Police, registered a case at 9 p.m. on I6th June, 1978, under Ss. 394 and 397, I.P.C. and sent P.W. 2 to the hospital for treatment as she had injuries. P.W 3, the doctor, examined P.W. 2 at 9:45 p.m. on 16th June, 1978, and found on her two injuries; one irregular multiple small abrasion in front of neck and sides of neck dried blood and the other, an abrasion on left elbow 1/2"" x 3/4"" inch dried blood. Ex. P2 is the accident register extract.

P.W. 8 deposes that he was a goldsmith working in Povur, that at about 6 p.m in the last week of June 1978, the accused came to him and asked him to repair M.O.3 chain as it was found broken and that accordingly he repaired it and gave it to the accused after two days.

P.W. 11, Inspector of Police, Chidambaram Taluk, took up investigation in the case and arrested the accused at about 10:15 p.m on 24th August, 1978, in Selvapuram colony, Nannilam taluk, in the presence of P.W. 7. The accused made a voluntary confessional statement, the admissible portion of which is Ex. P4. In pursuance of Ex. P4 the took P.Ws. 11 and 7 to Motteri village, produced certain articles and then took them to Kumarakudi and produced the minor chain, thali and gundu M.Os.3 to 5 from his wife and the same were recovered under Ex P5, mahazar attested by P.W. 7. P.W. 1 produced M. Os. 1 and 2 and P. W. 11 recovered the same under Ex. P3 mahazar attested by P.W. 6. On 25th August, 1978, P.W. 2 identified the accused as the person who snatched the jewels from her. P. W.9 was present in the police station at that

time. After completion of the investigation, charge sheet was laid against the accused.

In his S. 313, Crl. P.C. statement, the accused denied the offence arid he had no witnesses to examine on his behalf. The Learned Counsel Thiru Sudanthiram, appearing for the accused, at the instance of the Madras District Committee for Legal Aid Advice urged before me that the identification of the accused by PW.2 is suspect and therefore, the benefit of doubt should be accorded to the accused. I am not able to agree with

him. The evidence adduced shows that the offence has taken place at about 5 am. Very near the place, there was a light burning. While P.W. 2 was entering the garden, to answer calls of nature, she saw the accused. She tried to return, but the accused dragged and pushed her down causing her injuries. When she tried to raise an alarm, the accused took out the knife and threatened her. He snatched the jewels and ran away.

The sequence of events clearly show that P.W. 2 had ample opportunities to identify the accused. When she was taken to the police station during the investigation she had no hesitation in identifying the accused as the person who took her jewels.

The Learned Counsel cited before me the decision reported in Kanan and Others Vs. State of Kerala, wherein their Lordships of the Supreme Court held that where a witness identifies an accused who is not known to him in the court for the first time, his evidence is absolutely valueless, unless there has been a previous identification parade held to test his powers of observations. They further held that it is wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in court.

In the instant case the identification in court is not for the first time. P.W. 2 had identified the accused in the police station on 25th August, 1978, during the investigation in the presence of P. W. 11. Alter such identification, no useful purpose would have been served if there was an identification parade held by the Magistrate.

The clinching circumstance against the accused is his statement under S. 27 of the Evidence Act given in the presence of P.W. 7, the admissible portion of which is Ex. P4, and in pursuance of which P.W. 11 and others were taken to Kumarakudi Village and M.Os.3 to 5 jewels belonging to P.W. 2, were recovered from the wife of the accused. P.W. 2 had identified the said jewels as hers. I have no hesitation in accepting the evidence of P.W. 2 that M.Os.3 to 5 were hers and they were the subject matter of robbery which were later recovered from the wife of the accused on the information furnished by the accused through his statement under S. 27 of the Evidence Act. Thus, it is clear that the accused was responsible for committing the said offence on the day in question.

It is in the evidence of P.W 2 that, when she tried to raise an alarm, the accused, threatened her with a knife. He snatched the jewels and ran away from the place. It is thus clear that the accused used the knife at the time of committing the robbery. Hence, the offence committed squarely falls under S. 397,I.P.C.

S. 397, I.P.C. is not a substantive offence. It is a rider to S. 392, and a single charge alone should have been framed by the trial court for an offence under S. 392 read with S. 397, I.P.C. In this case, two charges were framed under S. 394 and 397, I.P.C. S. 397 cannot form the basis of the charge. The appellant herein should have been charged for an offence under Ss. 392 read with S. 397, I.P.C. To convict him under S. 392 read with S. 397, I.P.C without a charge might cause him prejudice, though I am fully satisfied that the offence committed by the accused is one under S. 392 read with S. 397, I.P.C. Though the trial court has wrongly framed a charge under S. 397 and found him guilty and given an illegal sentence of three years rigorous imprisonment, I do not think the ends of justice require that I should convict the accused now under S. 392 read with S. 397, I.P.C without a charge and enhance the sentence to seven years rigorous imprisonment. I am not prepared to rectify the defect in the charge and the illegal sentence at this stage. Sense of fair play and justice in my view does not demand it. The Learned Counsel for the accused cited before me the decision in State Vs. Rangaswami and Others, wherein Nainar Sundaram, J. held that in all cases where minimum sentences are not awarded in accordance with law, it is not necessary that the High Court should enhance it in revision. It should be borne in mind that provisions of law are meant to be obeyed. Contraventions of provisions are not called for and the trial courts are to carefully and strictly adhere to the provisions and not ignore them, hoping the High Court will come to their rescue to condone the defects. Sometimes contraventions may be such that ordering of a retrial becomes necessary which is an unnecessary harassment to the accused as veil as a waste of the court's time.

In these circumstances, the conviction of the accused under S. 397, I.P.C imposed by the trial Court is set aside and the conviction for an offence under S. 394 is confirmed, as the accused while committing the robbery voluntarily caused hurt to P.W. 2. The sentence of three years rigorous imprisonment is also confirmed. In the result, while acquitting the accused for the charge under S. 397 , I.P.C., I confirm the conviction and sentence passed on him under S. 394, I.P.C. The transferred criminal appeal is accordingly dismissed. I place on record the valuable assistance rendered to me by Thiru T. Sudanthiram.

In view of the orders passed in Cr. Ap. No. 292 of 1981, Cr. R.C. 383 of 1981 is dismissed.