IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 22ND JANUARY 2008 / 2ND MAGHA 1929 CRL.A.No. 1593 of 2007 -------------------------------------- SC.687/2006 of ADDL. SESSIONS COURT (ADHOC), PATHANAMTHITTA CP.150/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ADOOR .................... APPELLANTS: 1. RAJENDRAN, C.NO. 1921 CENTRAL PRISON, TRIVANDRUM. 2. MAHALINGA MUTHU, C.NO. 1922 CENTRAL PRISON, TRIVANDRUM. 3. VADIVELU, C.NO. 1923 CENTRAL PRISON, TRIVANDRUM. BY ADV. BANI P (STATE BRIEF) RESPONDENT: STATE OF KERALA REPRESENTED BY A PUBLIC PROSECUTOR BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 1593 of 2007 --------------------------- JUDGMENT The accused (three in number), convicted for offences under Sections 457 and 397 IPC read with Section 34 thereof and sentenced thereunder to undergo rigorous imprisonment for two years each for offence under Section 457 IPC read with Section 34 thereof and to undergo rigorous imprisonment for seven years each for offence under Section 397 IPC read with Section 34 thereof, with, however, benefit of concurrency and right of set off, vide judgment of the Additional Sessions Judge (Adhoc- I), Pathanamthitta dated 30.6.2007 in S.C.No. 687/06, are the appellants in this criminal appeal, filed from the Central Prison, Thiruvananthapuram. They are respectively Convict Nos.1921, 1922 and 1923. 2. Adv.Sri.P.Bani was appointed on State Brief to argue the appeal on behalf of the appellants, as they had not engaged any lawyer of their choice. CRA 1593/07 2 3. The prosecution case is that at about 1.15 a.m. on 17.6.2004, the appellants committed lurking house trespass into the residential building Koottumkal House bearing Door No.X/34 of Adoor Municipality in the occupation of PWs 3 and 4 by removing the window of the western bathroom and attempted to commit theft of the ornaments of PW4. When she raised alarm, PW3, who is her husband, who was sleeping in the bedroom on the west of the hall, woke up and intervened; that the appellants thereupon inflicted blows in quick succession with MOs 1 to 3 sticks of rubber trees and that when PW5, the nephew of PW3, who was sleeping in the said house during that night, intervened, the third appellant dealt a blow with the stick held by him on his left elbow causing fracture of lower end of left humerus of PW5 and thereby the appellants have committed offences punishable under Sections 457 and 397 IPC read with Section 34 thereof. 4. PW3 gave Exhibit P3 F.I. Statement at 2.45 a.m. on 17.6.2004 itself and on the basis thereof, CRA 1593/07 3 PW6 registered the case as Crime No.432/04 of Adoor Police Station, drawing up Exhibit P3(a) FIR in that behalf. He prepared Exhibit P2 scene mahazar on the same day, questioned the witnesses and conducted investigation in the case. MOs 1 to 3 sticks used in the commission of the offence and abandoned by the appellants were taken into custody, while preparing the scene mahazar. The case was included in the list of undetected cases, as the investigation did not reveal the identity of the offendors. 5. While so, on 3.10.2005, PW7 effected arrest of the appellants in connection with Crime No.665/05 under Section 41(2) of the Cr.P.C. finding them under suspicious circumstances. He produced them in court and thereafter obtained custody of the appellants from court and questioned them. On receipt of information from them of their having committed the offences involved in this case as well, the appellants were got identified by him through PWs 3, 4 and 5 and completed the CRA 1593/07 4 investigation in this case. 6. On completion of the investigation, he laid final report, charge sheeting the case against the appellants for offences under Sections 457 and 397 IPC read with Section 34 thereof before the Judicial First Class Magistrate's Court, Adoor, where the case was registered as C.P.No.150/06. On production of the appellants and after complying with all legal formalities, the learned Magistrate committed the case to the Sessions Division, Pathanamthitta, where, the case was registered assigning the number as S.C.No.687/06. The Sessions Judge made over the case to the Additional Sessions (Adhoc) Court-I, Pathanamthitta for trial and disposal. 7. On issuance of production warrant, the appellants were produced before the court below. They engaged their own Lawyer to defend the case on their behalf. Thereafter preliminary arguments were heard, charge was framed for offences under Sections 457 and 397 IPC read with Section 34 CRA 1593/07 5 thereof, particulars of the offences were read over and explained to the appellants in Malayalam and they were questioned. Thereupon, they pleaded not guilty and consequently, a trial of the case was conducted by the court below. 8. Prosecution examined PWs 1 to 7, got marked Exhibits P1 to P7 and got identified MOs 1 to 3. On the prosecution closing their evidence, the appellant/accused were questioned under Section 313 Cr.P.C. Thereupon, they generally denied all incriminating circumstances appearing in evidence against them and maintained that they are innocent. According to them, they are natives of Tamil Nadu and they were being falsely implicated in this case, taking them into custody from the their residence. As the Additional Sessions Judge (Adhoc- I), Pathanamthitta, who tried the case, was of the opinion that this is not a fit case for acquittal under Section 232 Cr.P.C., he called upon the appellants to enter upon their defence. However, they did not adduce any evidence in defence, except CRA 1593/07 6 getting marked Exhibits D1 to D3 in the course of examination of PWs 3 and 4. Hence, evidence in the case was closed and arguments were heard. 9. The court below considered the case in the light of the evidence adduced as aforesaid, found that the appellants committed lurking house trespass in furtherance of their common intention to commit theft and that in furtherance of their common intention to commit robbery, on alarm being raised by PW4 and PWs 3 and 5 intervened, the third accused caused grievous hurt to PW5 and hurt to PW3 by beating them with sticks of rubber trees and thereby they committed offences punishable under Sections 457 and 397 IPC read with Section 34 thereof and consequently, convicted them of those offences and sentenced them thereunder as already stated. 10. In this appeal, it is vehemently argued before me by the counsel on State Brief, appearing on behalf of the appellants, that there is no proper identification of the appellants by PWs 3, 4 CRA 1593/07 7 and 5; that there is no convincing evidence that MOs 1 to 3 are dangerous weapons and were used by the appellants and further that there is absolutely no proof of grievous injury having been caused to PW5. It was also argued that arrest being after one year and four months, it is highly probable that as suggested by the appellants when questioned under Section 313 Cr.P.C., they were being falsely implicated in this case after taking them into custody, even it be on suspicion. 11. Elaborate arguments were advanced by the counsel on State Brief with reference to the inconsistency and contradictions in the depositions of witnesses and exhibits marked on the side of the prosecution and the contradictions in the statements of witnesses, marked as Exhibits D1 to D3. But, however, after elaborate discussions, in the light of the arguments advanced by the learned Public Prosecutor, counsel for the appellants, probably on being convinced that he was not able to punch fatal holes in the fabric of the prosecution CRA 1593/07 8 case, contended finally that in any event, as no wound certificate has been produced and what is produced as Exhibit P1 is only an undated treatment summary issued by PW1, which cannot be believed in the absence of a wound certificate recorded at the time of examination of the patient (PW5), there is absolutely no evidence to show that any grievous injury had been caused to PW5 and therefore, in no event, offence under Section 397 IPC is attracted and at best, the offences that can be attracted are only offences under Sections 457 and 394 IPC and that in the absence of any theft having been committed, as admitted by PWs 3 and 4 and giving at least the benefit of doubt with reference to the identity, the conviction of the appellants be converted to offences under Section 457 and 394 IPC read with Section 34 thereof and the sentence reduced. I am not convinced, however, that identity of the appellants are not established on the evidence of PWs 3, 4 and 5. It is true that there is no convincing evidence as regards grievous CRA 1593/07 9 injury having been caused to PW5 in the occurrence. All the same, hurt is caused to both PWs 3 and 5. After hearing the learned Public Prosecutor also, I am of the view that the appellants, after committing lurking house trespass, with a view to commit theft, have caused voluntarily hurt only to PWs 3 and 5, when they intervened hearing the alarm of PW4. Taking the entire circumstances of the case, I am of the view that conviction of the appellants for offence under Section 394 IPC in the place of conviction for offence under Section 397 IPC would be more appropriate. In the result, allowing this appeal in part, I modify the conviction of the appellants to one for offences under Sections 457 and 394 IPC read with Section 34 thereof in the place of conviction for offences under Sections 457 and 397 IPC read with Section 34 thereof. The conviction of the appellants under Section 397 IPC is, thus, set aside. Consequently, I confirm the sentence awarded to the appellants by the court below for offence CRA 1593/07 10 under Section 457 IPC read with Section 34 thereof, and sentence the appellants to rigorous imprisonment for three years each for offence under Section 394 IPC read with Section 34 thereof with benefit of concurrency and right of set off. Communicate a copy of this judgment to the appellants through the Superintendent of Central Prison, Thiruvananthapuram. 22nd January, 2008 (K.P.Balachandran, Judge) tkv CRA 1593/07 11 K.P.Balachandran, J. --------------------- Crl.A.No.1593 of 2007 --------------------- JUDGMENT 22nd January, 2008