Judgment:
(Prayer: Appeal is filed under Section 374 of Cr.P.C. against the Judgment dated 06.07.2004 made in S.C.No.266 of 2004 on the file of the learned Additional District cum Sessions Judge, Fast Track Judge-I, Chennai.)
1. The appeal arises out of the Judgment of conviction and sentence dated 06.07.2004, made in S.C.No.266 of 2004 on the file of the learned Additional District cum Sessions Judge, Fast Track Court No.1, Chennai, whereby, accused 1 and 2 were convicted for the offence punishable under Sections 364, 394 r/w. 397 IPC. A1 was further convicted for the offence under Section 407 IPC and A2 was further convicted for the offence under Section 407 r/w. 34 of IPC. For the offence under Section 364 IPC, both the accused were sentenced to undergo 10 years Rigorous Imprisonment with fine of Rs.10,000/-, in default, to undergo 2 years Rigorous Imprisonment. For the offence under Section 394 r/w. 397 IPC, both the accused were sentenced to undergo 10 years Rigorous Imprisonment with fine of Rs.15,000/-, in default, to undergo 2 years Rigorous Imprisonment. The first accused was further sentenced for the offence under Section 407 IPC to undergo 7 years Rigorous Imprisonment with fine of Rs.5,000/-, in default, to undergo one year Rigorous imprisonment. The second accused was further sentenced for the offence under Section 407 r/w.34 IPC to undergo 7 years Rigorous Imprisonment with fine of Rs.5,000/-, in default, to undergo one year Rigorous Imprisonment.
2. The respondent Police filed a charge sheet against ten accused, stating that on 24.04.2003, A1 as a driver of Dilli Babu took P.W.1-Subash Chand Jain, who is friend of Dilli Babu, in a car to purchase some jewels at T.Nagar, N.S.C.Bose Road and after purchasing the jewels, P.W.1 got down in his paternal uncle's house at Ayyanavaram. On 25.04.2003, P.W.1, after purchasing the jewels, instructed A1 to come along with diamond and jewels which has to be given by Dilli Babu for dropping him at Egmore Railway Station to board the Trichy Train at 10.15 p.m. As per the instruction of P.W.1, A1 received diamond worth about Rs.1 Lakh from Dilli Babu and came to take P.W.1 for boarding the train in Egmore Railway Station. At that time, A2 was inside the Car. When P.W.1 made enquiry, A1 stated that he is my friend. Thereafter, P.W.1 entered into the car and received diamond and jewels which was handed over by A1. In stead of going to Egmore Railway Station, A1 drove the car in a wrong route. When P.W.1 questioned the same, A2 threatened him at knife point and took away the jewels, which was kept by him. Thereafter, A1 and A2 pushed him out from the Car at Perumbakkam Road Tamil Nadu Hospital and A1 left the place along with A2. The said jewels were handed over to A3 to A10, since they kept the same after knowing very well that the jewels are stolen property. Therefore, the accused 1 to 10 were charge sheeted.
3. The learned Sessions Judge after following the procedure, framed necessary charges. Since the accused pleaded not guilty, he examined P.W.1 to P.W.23 and marked Exs.P1 to P40 and M.O.1 to M.O.216.
4. The case of the prosecution on the basis of the evidence let in by the prosecution is as follows:
(i) P.W.1-Subash Chand Jain, who is the complainant and victim, is the owner of the Jewellery Shop at Trichy. Usually, he comes to Chennai and purchases jewels from the whole sale dealers. Likewise, on 24.04.2003, he came to Chennai for purchasing jewels. Dilli Babu who is the friend of P.W.1 and brother of P.W.4, sent M.O.210-Santro Car bearing Registration No.TN05F 100 for P.W.1 to his paternal uncle's house at Ayyanavaram. The said car was driven by A1/first appellant and the same had been corroborated by P.W.4-Saravanan, brother of Dilli Babu, who is having jewellery work shop at Anna Nagar, Chennai. Thereafter, he went to Usman Road, T.Nagar by car, driven by A1, where he visited Harihant Gold House and selected jewels by saying that he will come tomorrow to get the jewels as he is going to Trichy tomorrow only. In the same manner, he went to G.N.Chetty Road, where he selected the jewels from Srinivasan and Subbarao's house. While P.W.1 went to Sowkarpet at 1.30 p.m., he sent back A1, where he visited Lakshmi Jewellery and selected the jewels. Besides, he selected jewels at Dhanalakshmi Jewellery, R.M.Jewellery, Dinandra Jewellery at N.S.C.Bose Road and Surgam Jewellery where, he selected silver jewels and then, he selected diamond weighing 125 carrot and Gold weighing 1300 grams at J.M. and Co. Thereafter, he went to Silpi Jewellery at 9.30 p.m. to meet the owner of the jewellery shop. At that time, A1 came by car . P.W.1 and his friend, Rakesh, got into the car for going to Rakesh's house, where P.W.1 stayed that night.
(ii) The next day morning, i.e. 25.04.2003, he went to his paternal uncle's house. At 9 O'clock, A1 came by Car to P.W.1's uncle's house. Thereafter, P.W.1 entered into the car and went to Usman Road, T.Nagar, Sowkarpet and collected the jewels, which was selected by him on 24.04.2003, i.e gold weighing 15 kgs and diamond weighing 125 carrot. He handed over 6 kgs. of goldbars to R.M.Jewellers. Thereafter, P.W.1 alighted at N.S.C.Bose Road at 1.30 p.m. and directed A1 to come at night by 9 O'clock, after receiving diamond nose screw and diamond earrings from Dilli Babu. When P.W.1 was waiting in Sargam Jewellers at N.S.C.Bose road from 9.00 p.m., A1 came by Car at about 10.00 p.m. At that time, A2 was sitting in the back seat of the car. When he made an enquiry about A2, A1 had stated that he is his friend and he will get down before Egmore. Then, P.W.1 sat in the front seat of the car and kept his suitcase containing gold jewels, white cloth bag containing silver anklets and other silver articles and Rexin Bag containing silver jewels and his clothes, near A2 at the back seat of the Car. Then, A1 played a song in the Tape Recorder, immediately, P.W.1 directed him to stop the music and enquired about the diamond earrings and diamond nose screw given by Dilli Babu. Immediately, A1 handed over the same to P.W.1 and he kept the same in his pocket along with the Ticket. Thereafter, they proceeded on a car towards Egmore Railway Station through Flower Bazaar and Central Railway Station to catch the Rockfort Train scheduled at 10.30 p.m.
(iii) When the vehicle was proceeded to Gandhi Irwin Bridge instead of turning to right side to go to Egmore Railway Station, A1 drove the car in a straight manner. When P.W.1 made a question as to why he is proceeding the car directly instead of turning to right side, A2, who was sitting behind him at back seat had placed the knife on his neck and threatened him at knife point as to what he had with him. He wanted to escape from the car and since all the window glass were made with fiber class, he is unable to escape. A1 also played the musical system in a very loud manner. Immediately, A2 took Diamond nose screw and Diamond earrings and Rs.415/- from his pocket. Thereafter, A2 searched P.W.1 and he has not find any jewels on P.W.1. A2 also assaulted P.W.1 with hand and knife and he tightened P.W.1's neck. A2 parged his mouth with his hand kerchief. At that time, A1 directed A2 to kill P.W.1. P.W.1 was assaulted with knife in various parts of the body. Immediately, P.W.1 told them to take the jewels whatever they need and leave to live him. At that time, A1 and A2 had not left him and they stated that if he alive, he will intimated the same to the Police. Hence, A2 assaulted P.W.1, resulting in, P.W.1 became unconscious. Thereafter, when the vehicle reached at Thuraipakkam near Velacherry, A1 and A2 pushed down P.W.1 from the vehicle into Bush. They left the place at 11.00 p.m. After P.W.1 regained conscious, he tried to move. Since P.W.1 sustained injury on his leg, he was unable to move. Thereafter, he slowly came to the Bridge and screamed to save him. But, no one stopped the vehicle. After one hour, a boy came there. At that time, P.W.1 requested the boy to save him. But, the boy wanted some amount. As he promised to give money, the boy stopped a on going vehicle and requested to give information to the Police Station. After some time, the Police Jeep came there and P.W.1 was taken to the Government Royapettah Hospital, where P.W.3-Dr.Nazeer Ahamed treated him at 1.30 p.m. and issued Ex.P3-Accident Register by pointing out the injuries. Then only, P.W.1 gave information to his relatives. Thereafter, P.W.1 was referred to the Appollo Hospital, where P.W.2-Dr.Maheswaran treated him and issued Ex.P2-wound Certificate.
(iv) P.W.19-Rathinamani, Inspector of Thuraipakkam Police Station, came to the Appollo Hospital at 6.30 a.m. and recorded Ex.P1-complaint. Thereafter, P.W.19 returned back to the Police Station and registered a case in Crime No.333 of 2003 under Section 397 IPC and prepared Ex.P19-FIR. Since the occurrence allegedly took place in the jurisdiction of the Egmore Police Station, he took steps to transfer the case to the Egmore Police Station. Thereafter, P.W.19 went to the place where P.W.1 was lying down after sustaining injuries and drew Ex.P20-Rough sketch in the presence of Baskar and Ashok Kumar/P.W.16. He also prepared Ex.P14-Observation Mahazar and seized M.Os.213 and 214 under Ex.P15, i.e. blood stained sand mixed with thar sand and original sand in the presence of above witnesses. In the meanwhile, he received information that M.O.210-santro car was at Ulundurpet Bus stand. Thereafter, he confirmed the said information through Villupuram District Crime Branch and he also gave information to the Forensic Department. P.W.19, at 16.15 hours, went to that place and prepared Ex.P21-observation mahazar in the presence of P.W.17-Durai Raj and P.W.14-Kannabiran, where he recovered M.O.210. He also recovered M.O.211-Chappels, M.O.212-blood stained panties, blood stained kerchief, four buttons and blood stained rubber, which was found in the car in the presence of the same witnesses under Ex.P9.
(v) P.W.23-Mani, Inspector of Police, Egmore, after receiving the copy of FIR in Crime No.333 of 2003, registered a case at Egmore Police Station in Crime No.688 of 2004 under Section 397 of IPC and prepared Ex.P28-FIR. Thereafter, he went to the place of occurrence, where he prepared Ex.P30-Observation Mahazar in the presence of Raja and Nagesh and drew Ex.P29-Rough Sketch. He examined the witnesses and recorded their statements. Thereafter, P.W.23 went to the Appollo Hospital, where, he examined P.W.1 and recorded his statement. He examined Dilli Babu, who gave M.O.210-Santro Car. Further, he examined other witnesses, from whom, P.W.1 gave orders for making jewels and purchased the jewels. He also recorded their statements. Since A1 and A2 were absconding, he took steps to form a special team. On that basis, P.W.20-Rangarajan, Investigating Officer was appointed as Special Officer.
(vi) On 11.05.2003 at 3.00 p.m., P.W.20 arrested A1 at Mumbai Kalyana Railway Station in the presence of K.V.Samy and Dinesh Kumar Singh, at that time, A1 gave confession statement. He recorded the confession statement of A1. The admissible portion of the confession statement was marked as Ex.P23. On the basis of confession statement given by A1, he seized jewels, chains and one pair bangles under Ex.P24.
(vii) P.W.23 examined Kannabiran, who was present at the time of seizing M.O.210-Santro Car. He also examined one Meena, who is the sister of A1. P.W.21-Ashok Kumar, Investigating Officer has seized some jewels. On 29.05.2003, P.W.22-Venkatraman, Investigating Officer, on receiving information, went to Kerala and at about 11.40 a.m., he arrested A2 in the front of C.K.News Mart at Kannanur Police Station and recorded his statement in the presence of Latheep and Sathiyamoorthy. The admissible portion of A2 was marked as Ex.P25. P.W.22 seized some jewels, a hat, one cooling glass and the receipt for pledging the jewels at Co-operative Bank, Kannanur under Ex.P26. A2 also handed over the jewels, which was hidden in a Switch Box at his house, resided at P.B.House, Kottakunnu and the same was seized by P.W.22 under Ex.P27. Thereafter, P.W.22 returned back to Chennai and handed over A2 to P.W.23.
(viii) During the investigation, P.W.23 came to know that A3 to A10 has already possessed the stolen property. Therefore, he arrested A3 to A10 and recorded their confession statement and seized jewels under various seizure mahazar. P.W.22 also examined the Doctors and recorded their statement and received the report from Forensic Department. He handed over all the material object to the Court. After concluding investigation, he filed a charge sheet against the accused under Sections 364-A, 394, 397, 216-A, 414, 407 r/w. 109 IPC.
5. The learned Sessions Judge placed the incriminating evidence against the accused, but, the same was denied by him in toto. On the side of the accused, Exs.A1 to A8 were marked. The learned Sessions Judge, on considering the oral and documentary evidence, acquitted A3 to A10 and convicted A1 and A2 and sentenced as stated above.
6. Challenging the conviction and sentence passed by the learned Sessions Judge, the learned counsel for the appellants raised the following points:
a) there is no evidence to show that P.W.1 is running jewellery shop at Trichy;
b) the prosecution had not proved that P.W.1 purchased jewels and no receipt was produced before the Court for purchasing the jewels.
c) Non-examination of the owner of Jewellery Shop, from whom, P.W.1 is allegedly said to have purchased the jewels is fatal to the case of the prosecution.
d) As there was a contradiction between the oral and documentary evidence, the same will vitiate the conviction.
e) The prosecution had not sent Blood stained clothes for chemical analysis.
f) There is a delay in preferring the complaint and dispatching the same.
g) No identification parade had been conducted.
h) P.W.1 was not examined by the Inspector while he was admitted in the Government Stanely Hospital.
i) Non-examination of Finger print experts.
He further submitted that the trial Court has not considered all those points and wrongly convicted A1 and A2. While A3 and A10 were acquitted, appellants/A1 and A2 ought to have been acquitted from the charges levelled against them. To substantiate the argument of this case, he relied upon the following Judgments:
i) AIR 2007 SC (Supp) 634 (State of Rajasthan Vs. Netrapal and Ors.)
ii) AIR 2008 Supreme Court 2343 (Mahabir vs. State of Delhi)
iii) AIR 1971 Rajasthan 184 (V.58 C 43) (Pritam Singh and another vs. The State of Rajasthan)
iv) AIR 2007 Supreme Court 1729 (Ravi @ Ravichandran vs. State Rep. By Inspector of Police)
v) AIR 2008 Supreme Court 2222 (Viswanathan and Ors. Vs. State, Rep. By Inspector of Police, Tamil Nadu)
vi) 2011 (3) Crimes 61 (SC) (State of Rajasthan vs. Talevar and Anr.)
vii) 1993 Madras Law Journal (Cri) 62 (Ravanan vs. State (Inspector of Police), Kumbakonam and another.
7. Resisting the same, the learned Government Advocate (Crl. Side) for the state submitted that while P.W.1 was admitted in the Government Royapettah Hospital, he was in an unconscious stage and for further treatment, he was subsequently admitted to the Appollo Hospital, where, the complaint had been recorded and the case had been registered. He further submitted that P.W.4-Saravanan, brother of owner of the vehicle, in his evidence, deposed that A1 alone drove M.O.210-Car and when A1 was questioned under Section 313 Cr.P.C., he himself admitted that he drove the car on that day. Therefore, non-examination of Finger Print Experts is not fatal to the case of the prosecution. He further submitted that the evidence of P.W.1, who is eye-witness, had been corroborated by the evidence of P.W.4. So, the identification parade is not necessary. He further submitted that non production of receipt for jewels is not fatal to the case of the prosecution. To substantiate the same, he relied upon the Judgment of the Apex Court reported in 1993 SCC 242 (State of Karnataka vs. Deja K. Shetty). He further submitted that the trial Court has considered all the aspects in a proper perspective and came to the correct conclusion and he prayed for dismissal of the appeal.
8. Considered the rival submissions made on either side and perused the materials on record.
9. On perusal of record, it is seen that A1 was the driver of Dilli Babu, who is having jewellery workshop at Chennai, from whom, P.W.1 purchased jewels for his shop. P.W.1 usually comes to Chennai to purchase jewels for his shop from various Jewellers at Chennai. P.W.1's paternal uncle is residing at Ayanavaram, Chennai. On 24.04.2003, when P.W.1 came down to Chennai by Train, before going to his paternal uncle's house, he had given an information to Dilli Babu to send a car to his paternal uncle's house at Ayanavaram, from there, he went to various jewellery shops at T.Nagar, N.S.C. Bose Road and Sowkarpet. It is an admitted fact that A1 was the driver of the Santro Car/M.O.210 at the time of occurrence. Further, A1 himself admitted that he was driver on 24.04.2003 and 25.04.2003, while questioning him under Section 313 of Cr.P.C. Further, the said factum has been corroborated by P.W.4-Saravanan, who is brother of Dilli Babu and owner of the car. So, I am of the view that on 24.04.2003 and 25.04.2003, A1 / Seetharam @ Selvam, driver of M.O.210, took P.W.1 to the jewellery shops and during the occurrence.
10. Admittedly, the vehicle had been seized at Ulunderpet and the same had been proved by the prosecution by way of examining P.W.23. P.W.23, in his evidence deposed that the said car has been seized in the presence of P.W.14-Kannabiran and P.W.17-Durai Raj. While perusing Ex.P9-seizure Mahazar, wherein, it was mentioned that the said car has been seized on 26.04.2003 at 18.30 hrs. from Ulunderpet bus stand. So, A1 drove the vehicle on the date of occurrence. But, the said vehicle has been seized only at Ulunderpet Bus stand and no explanation has been given by A1 as to why M.O.210 was abandoned at Ulunderpet Bus stand.
11. Now, this Court has to answer to the point raised by the learned counsel for the appellant that no identification parade is conducted. At this juncture, it is appropriate to consider the evidence of P.W.1 since the case is based on the sole eye-witness, i.e. P.W.1.
12. P.W.1, in his evidence, deposed that on 25.04.2003 at 10.00 p.m. when the vehicle came there for pick up him/P.W.1 to Railway Station, he witnessed that A2 was sitting in the back seat. Hence, P.W.1 enquired A1 about A2 and A1 said that he is his friend and he will get down before Egmore. Considering the evidence of P.W.1, it is clear that on the date of occurrence, P.W.1 travelled in the car along with A1 and A2 and they were known to P.W.1. Further, in the FIR itself, the name of A1 and his friend were mentioned. So, I am of the view that P.W.1 accompanied A1 on 24.04.2003 and on 25.04.2003 he travelled along with A1, and A2 was seen by P.W.1 on 25.04.2003 at 10.00 p.m. Since A1 and A2 were known to P.W.1, there is no necessity for identification parade.
13. The learned counsel for the appellant relied upon several judgments with regard to the identification parade. At this juncture, it is appropriate to consider the Judgments relied upon by the learned counsel for the appellants and the same are as follows:
(i) In the case of C.K.Thakker and Lokeshwar Singh, reported in AIR 2007 SC (Supp) 634, wherein, it was held that since the occurrence took place at a dark night and the electric bulb is not shown in the site-plan, it is unbelievable that the prosecution witness has identified the accused. Hence, the identification has been disbelieved. But, in the case on hand, no identification parade has been conducted, since A1 and A2 were known to P.W.1.
(ii) In the case of Mahabir vs. State of Delhi reported in AIR 2008 Supreme Court 2343, wherein it was held that the necessity for conducting parade arise only when the accused persons were not previously known to the witness. But, in the case on hand, as per the evidence of P.W.1, on 24.04.2003, A1, who was the driver, himself only took P.W.1 in a car to purchase jewels and on 25.04.2003, when P.W.1 entered into the car, he witnessed A2 and questioned about A2, at that time, A1 said that he is his friend, then only, P.W.1 permitted A2 to travel along with them. In such circumstances, both the accused were known to P.W.1. Therefore, there is no identification parade in the case on hand.
(iii) In the case of Pritam Singh and another v. The State of Rajesthan, reported in AIR 1971 Rajasthan 184, wherein, it was held that identification parade has been conducted after inordinate delay, is not proper in absence of any convincing explanation for that delay. In the present case, there is no identification parade.
(iv) In the case of Ravi @ Ravichandran Vs. State, Rep. By Inspector of Police reported in AIR 2007 Supreme Court 1729, wherein, it was held that since the FIR is filed against unknown persons, identification parade should be held as early as possible. But, in the case on hand, the name of the first accused and his friend have clearly been mentioned in the FIR.
(v) In the case of Viswanathan and Ors. v. State, Rep. by Inspector of Police, Tamil Nadu, reported in AIR 2008 Supreme Court 2222, wherein, it was held that the test identification parade is necessary since the victim was subjected to a gang rape and named only accused Nos. 1 to 4 and not named accused Nos.5 and 6. But, in the case on hand, A3 to A10, who are allegedly said to have kept the stolen property were not known to P.W.1 and A1 and A2 were known to P.W.1.
(vi) In the case of State of Rajasthan vs. Talevar and Anr. Reported in 2011 (3) Crimes 61 (SC), wherein, it was held that the identification of the accused was not established. So, the conviction on doubtful identification is not permissible. But, in the present case, there is no identification parade at all.
While considering the above citations, it is clear that the above facts of the citations are not relevant to the facts of the present case. Considering the evidence of P.W.1 along with FIR, the name of the first accused and his friend were mentioned and A1 and A2 were known to P.W.1, therefore, there is no necessity for identification parade. So, non conducting identification parade is not fatal to the case of the prosecution.
14. The learned counsel appearing for the appellant raised another two points that there is a delay in preferring the complaint and the complaint has not been recorded at Government Royapettah Hospital, where P.W.1 took treatment at first. The occurrence took place on 25.04.2003 at 10.30 p.m. On receiving the information, Pallikaranai Police admitted P.W.1 to the Government Hospital, Royapettah at 1.10 A.M. on 26.04.2003, at that time, P.W.1 was in an unconscious stage. The occurrence took place at the jurisdiction of the Duraipakkam. P.W.19-Inspector of Police, Duraipakkam Police Station, on receiving the information, went to the Government Hospital, Royapettah, where P.W.1 was in an unconscious stage. Thereafter, P.W.1 was shifted to the Appollo Hospital for further treatment, where, P.W.1 regained conscious and the complaint has been recorded at 6.30 a.m. and subsequently, the case has been registered by Duraipakkam Police at 8.30 a.m. in Crime No.333 of 2003 under Section 397 IPC. Considering the same, I am of the view that there is no delay in preferring the complaint and since P.W.1 was in an unconscious stage at Government Royapettah Hospital, the complaint has not been recorded there. Subsequently, P.W.1 regained conscious at Appollo Hospital, where the complaint has been recorded immediately. So, the non recording of the complaint at Government Royapettah Hospital is not fatal to the case of the prosecution and the delay has been properly explained by the prosecution.
15. The learned counsel for the appellant submitted that the prosecution has not produced any document to show that P.W.1 is the owner of Jewellery shop and no receipt has been produced to prove the purchase of jewels. In this regard, the learned Government Advocate (Crl. Side) produced the Judgment reported in 1993 SCC (Cri) 242 (State of Karnataka vs. Deja K.Shetty) wherein, it was held that merely because, absence of receipt of purchase is not a ground for acquittal, if convincing evidence is available.
16. P.W.1, in his cross examination, deposed that he ordered jewels and took the same on the basis of Approval Voucher, then, the person from the jewellery shop, from whom, the jewels were purchased, received money at his jewellery shop and took back the jewels which were not wanted by P.W.1. Therefore, it is appropriate to incorporate the evidence of P.W1, which reads as follows:
“TAMIL”
Considering the evidence of P.W.1, I am of the view that non filing of the receipt is not fatal to the case of the prosecution.
17. The learned counsel for the appellants raised the point that non examination of owner of the jewellery, from whom, P.W.1 purchased the jewels. At this juncture, it is appropriate to consider the evidence of A1. While questioning A1 under Section 313 of Cr.P.C. he himself admitted that he took P.W.1 by Car to the jewellery shop and it is true that P.W.1 had selected jewels from various jewellery shops and taken the same in the very next day morning. Considering the answer given by A1 while questioning under Section 313 Cr.P.C., I am of the view that non-examination of the jewellery shop owner is not fatal to the case of prosecution.
18. The learned counsel for the appellants raised the point that the blood stained cloth of P.W.1 has not been sent for chemical analysis. It is true that the blood stained cloth of P.W.1 has been seized and the same has not been sent for chemical analysis. Since the case is based on the eye-witness for the offence under Sections 364, 394 r/w. 397 IPC and 407 r/w. 34 IPC, so, I am of the view that non sending this blood stained cloth is not fatal to the case of prosecution.
19. The learned counsel for the appellants raised another point that there is a contradiction between oral and documentary evidence of P.W.1. The trival and minor contradiction will not shake the order of conviction considering the gravity of offence. It is pertinent to note that on 25.04.2003 at 10 p.m. A1 took P.W.1 to drop him at Egmore Railway Station to facilitate to board him in Rock Fort Express train. The said factum has been corroborated by A1 and there is no motive for P.W.1 to give a false evidence. Further, A1, who absconded, was arrested at Mumbai, at that time, A1 gave confession statement. On the basis of confession given by A1, jewels were seized. Like wise, A2, who also absconded was arrested at Kannanur, Kerala State and he also gave confession statement. On that basis, the jewels and receipts for pledging the jewels at Co-operative Bank were seized, which shows that some of the jewels have been pledged at Co-operative Bank. So, the evidence of P.W.1 is reliable and the same has been clearly proved that accused Nos.1 and 2 abducted P.W.1 and A1 instructed A2 to commit murder P.W.1 for robbery. So, A2 assaulted P.W.1 with knife and caused cut injury to allover the body of P.W.1. Therefore, the accused are guilty of offence under Section 364 IPC abducting P.W.1 in order to commit murder and guilty under Section 397 IPC causing cut injury at the time of committing robbery. So, the prosecution has proved that the accused are guilty of offence under Section 364 and 394 r/w. 397 IPC.
20. Admittedly, A1 accompanied P.W.1 to take him by car for selecting jewels and A1 himself handed over the jewels to P.W.1, which was given by Dilli Babu, Goldsmith and owner of M.O.210-Car. On 25.04.2003, at 10 O'clock, A1 committed breach of trust that instead of going to right side, he proceeded directly. When the same was questioned by P.W.1, he directed A2 to murder P.W.1. Therefore, A2 assaulted P.W.1 with a knife, which clearly proves that A1 is guilty of offence under Section 407 IPC and A2 is guilty of offence under Section 407 r/w. 34 IPC.
21. Considering the facts of the case, I am of the view that the prosecution has proved the guilt of the accused and the trial Court has considered all the aspects in a proper perspective and came to the correct conclusion that the A1 is guilt of offence under Sections 364, 394 r/w.397 and 407 IPC and A2 is guilt of offence under Section 364, 394 r/w. 397 and 407 r/w. 34 IPC. Therefore, the Judgment of the trial court does not warrant any interference and the same is hereby confirmed.
22. In fine:
a) the appeal is dismissed
b) the Judgment of conviction and sentence passed by the trial Court is hereby confirmed
c) The bail bond, if executed by the accused shall stand cancelled.
d) The trial Court is directed to secure the custody of the accused to undergo the remaining period of sentence.