Saleem vs State

R.S. Ramanathan, J.—The first accused in S.C. No.366 of 1998 on the file of the VI Additional Sessions Judge, Chennai is the appellant. He along with five other accused were charge sheeted for the offence under section 392 r/w 397 r/w 34 of the IPC. The learned VI Additional Sessions Judge found them guilty for the aforesaid offence and the appellant was convicted for the offence under Section 392 r/w 397 r/w 34 of the IPC and was sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.500/-, in default, to undergo rigorous imprisonment for 3 months. Aggrieved by the same, the present Appeal is filed.

The case of the prosecution is that on 13.11.1997 at about 12.00 mid night, when PW.1 was driving his Auto TSJ 6069 in Erukanjeri High Way, two persons stopped his Auto by showing knife and asked him to get out of the vehicle and run way and when he stopped the Auto, 3 other persons joined them and all of them fled in his Auto and therefore, he gave a complaint before the respondent police and also informed his owner about the incident and on the next day at about 10.00 a.m., he was informed by the police that the Auto was secured and he was asked to come to the police station to identify his auto and he went to the police station and also identified the Auto and the accused who forcibly drove the Auto on the previous day and therefore, the said accused and the other accused have committed the aforesaid offence.

To substantiate the case of the prosecution, the prosecution examined the Auto driver as PW.1, owner of the Auto as PW.2, Observation Mahazar Witnesses as PW.3 and PW.4, Head Constable as PW.5 and the Investigating Officer as PW.6 and marked 6 Exhibits and besides MOs.1 and 2. On the side of the defence, neither any witness was examined nor any document was marked. When the accused was questioned under Section 313 Cr.P.C., he denied the charge levelled against him.

The learned trial Judge, on the basis of the evidence of the prosecution found the accused/appellant guilty of the offence under Section 392 r/w 397 r/w 34 of the IPC and therefore, convicted and sentenced him for the said offence as stated above. Aggrieved by the same, this Appeal is filed.

It is submitted by the learned counsel appearing for the appellant that there is no corroborative evidence to corroborate the evidence of PW.1, and PW.3 and PW.4 turned hostile and therefore, the trial Court ought not to have believed the evidence of PW.1 and convicted the appellant for the aforesaid offence. He further submitted that PW.1 and PW.2 were not cross-examined and therefore, one more opportunity may be given to the appellant and on that ground, the conviction and sentence may be set aside.

I am unable to accept the contention of the learned counsel appearing for the appellant. It is seen from Ex.P.1 that PW.1 gave the complaint on 14.11.1997 and stated in the complaint that on the midnight of 13.11.1997 i.e. at about 2.30 a.m., on 14.11.1997, when he was driving the Auto in Erukanjeri High Way, two persons intercepted the Auto and thereafter four persons joined them and one of them threatened him with knife and asked him to run away and all of them get into the Auto and went by the Auto and the complaint was received by the police on the night of 13.11.1997, namely, at 3.15 a.m., on 14.11.1997. Ex.P.1 was received by the Court on 14.11.1997 and there is no delay. Therefore, it is seen from the evidence of PW.1 that 6 persons took the Auto by showing knife in the early morning on 14.11.1997 and on the next day, he was asked to come to the police station to identify the Auto and the accused and he also identified the Auto and the accused in the police station and there was no cross-examination of PW.1. Having regard to the time and place, there cannot be any eye-witness and therefore, non-examination of any other eye-witness to corroborate the evidence of PW.1 cannot be taken advantage of by the accused. Further, PW.1 was not cross-examined and in the absence of cross-examination of PW.1, his evidence has to be taken into account and the trial Court rightly convicted the appellant for the aforesaid offence. Though PW.3 and PW.4 were treated as hostile that will not disprove the case of the prosecution having regard to the evidence of PW.1. The trial Court considering all these aspects rightly convicted the accused and sentenced for the said offence. Therefore, I do not find any reason to interfere with the judgment of the trial court.

In the result, the conviction and sentence imposed on the accused / appellant is sustained and the Criminal Appeal is dismissed.

It is seen from the records that the judgment of the trial Court is dated 26.6.2001 and the Appeal was filed in the year 2004 and the sentence was not suspended and the accused / appellant was in jail during pendency of the Appeal. In that case, the appellant must have served the sentence. Hence, if the appellant had already served the sentence and if he is not required in connection with any other case, even though the present Appeal is dismissed, he is directed to be released from the jail forthwith.