IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 Crl.Rev.Pet.No. 2438 OF 2008() ------------------------------ CRA.(J).196/2006 of SESSIONS COURT, ERNAKULAM SC 252/2002 OF ADDL. ASST. SESSIONS COURT, NORTH PARAVUR .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------- SIVADMAJAN,S/O.KUTTAN, C.NO.5147, CENTRAL PRISON, VIYYUR, THRISSUR. BY ADV. PREETHA P.S.(STATE BRIEF) RESPONDENT/RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. NAZER THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 2438 OF 2008 ------------------------------------------ Dated this the 19th day of November, 2008 O R D E R Revision petitioner was convicted and sentenced for the offence under section 397 of Indian Penal Code by Assistant Sessions Judge, North Parur in SC 252 of 2002. Conviction was confirmed by Sessions Judge in Crl.Appeal 196 of 2006. Revision is filed from jail challenging the conviction and sentence. Advocate Smt. Preetha P.S. was appointed the counsel to argue the revision for the revision petitioner. 2. Learned counsel appearing for revision petitioner and learned Public Prosecutor were heard. 3. Prosecution case was that on 31.3.2000 at about 2.15 p.m. PW2 Annakkutty alone was in her house. One of her sons was in foreign country and the daughter was in her husband's house and the youngest son had gone to college. PW1 and his wife PW5 are her neighbours. By about 2.15 p.m. hearing the cry of PW2 from her house, PWs 1 and 5 rushed there. They found revision petitioner running away from the house. PW1 followed the revision petitioner and caught hold of him. By that time people also gathered there and they tied the revision petitioner. The revision petitioner had gone to the house of CRRP 2438/08 2 PW2 earlier on that day and requested to give telephone number of her son. While PW2 was lying on her cot, revision petitioner entered the house and beat her on her head with MO2 iron rod and inflicted grievous hurt on her and snatched MO1 gold chain from the neck of PW2 and ran away. Hearing PW2 cry, PW1 followed PW5 rushed there and finding revision petitioner running followed her and caught hold of him. Ext.P1 F.I. Statement was recorded on the same day and Ext.P1(a) FIR was prepared. PW10, the Sub Inspector, getting information that revision petitioner was restrained by people, reached there and arrested him. On search MO1 concealed on the dhothi worn by him was seized. PW10 prepared Ext.P3 scene mahazar and seized MO2, iron bar, and MOs 3 and 4, the blood stained blankets, MOs 2 to 4 were produced in Court and sent for chemical analysis. After completing the investigation charge was laid. As petitioner did not engage a counsel, a defence counsel was appointed by the Court. Petitioner pleaded not guilty when the charge for offence under section 397 IPC was framed, read over and explained to him. Prosecution examined 11 witnesses and marked 9 exhibits and identified MOs 1 to 4. On the side of the defence, at the time of examination of PW5, CRRP 2438/08 3 Ext.D1 portion of statement recorded under section 161 of Code of Criminal Procedure was marked. Even though petitioner was called upon to adduce evidence, after hearing the prosecution and defence under section 232 of Cr.P.C., petitioner did not adduce any evidence. Learned Assistant Sessions Judge thereafter heard the prosecution and the defence and found the petitioner guilty. After hearing petitioner on the sentence, he was sentenced to rigorous imprisonment for seven years and also a fine of Rs.10,000/- and in default simple imprisonment for six months. Petitioner preferred the appeal from jail. The learned Sessions Judge appointed a counsel for him. After hearing the counsel and on reappreciation of evidence, Sessions Judge confirmed the conviction and sentence. It is challenged in this revision. 4. The argument of the learned counsel is that there is contradiction in the evidence of PWs 1 and 5 and when the evidence of PW5 is that PW2 was found coming out of the house with the injuries when they reached there, evidence of PW1 contradicts that evidence and therefore Courts below should not have accepted the prosecution case. It was also argued that PW4 turned hostile to prosecution and therefore recovery of CRRP 2438/08 4 MO1 from the possession of revision petitioner as spoken to by PW10 should not have been accepted. The learned counsel also argued that prosecution case is artificial and should not have been believed and therefore conviction is not sustainable. It was finally argued that petitioner was not involved in any other case and therefore leniency should have been shown and the sentence awarded is harsh. 5. Learned Public Prosecutor argued that revision petitioner was apprehended from the spot and evidence of PW2 that revision petitioner had worked for her earlier was not challenged and therefore identification of the revision petitioner by PW2 cannot be challenged. It was pointed out that PW2 identified revision petitioner as the person who inflicted the injuries on her and evidence of PW9, the doctor, with Ext.P6 wound certificate establish that she sustained grievous hurt and when PW2 deposed that the injuries were inflicted by the revision petitioner and he snatched MO1 chain from her after inflicting the injuries, there is no reason to disbelieve her evidence. It was also argued that PWs 1 and 5, who reached the scene on hearing the cry of PW2 establish that revision petitioner was found running away from the house immediately CRRP 2438/08 5 after the incident and petitioner was caught hold of by PW1 and recovery of MO1, which is proved to be the gold chain which was snatched from PW2, establish that it was the revision petitioner who inflicted the grievous hurt on PW2 and therefore conviction of the petitioner for the offence under section 397 of IPC is perfectly correct. 6. Section 397 of IPC provides the punishment for the offence of robbery or dacoity with attempt to cause death or grievous hurt. Section 390 defines robbery. Theft is robbery if in order to the committing of the theft, or in carrying away or attempting to carry away the property obtained by theft, the offender voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt, or of instant wrongful restraint, he is said to have committed robbery. If at the time of committing robbery the offender used any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, then he is liable for the punishment provided under section 397 of IPC. 7. The evidence of PW2 establishes that she sustained the injuries on her head when she was lying on the cot inside her CRRP 2438/08 6 house on 31.3.2000 at about 2.15 p.m and it was inflicted by revision petitioner with MO2. Evidence of PW9 the doctor with Ext.P6 wound certificate establish that PW2 was examined by the doctor at 3.35 p.m. on the same day from San Joe Hospital, Perumbavoor and found a multiple located wound on the scalp, lacerated wound on the right pinna with tear of cartilage and oedema on the angle of right eye. The evidence also establish that as the injuries were serious she was referred to a major hospital. In the light of evidence of PW9 corroborated by Ext.P6 wound certificate the injuries sustained by PW2 cannot be disputed. The alleged cause of injury disclosed by PW9 is an assault by robber. Evidence of PW2 is that it was the revision petitioner who inflicted the injuries and snatched away her MO1 gold chain. PW2 identified MO1 as the gold chain which was snatched away from her, after inflicting injury, by the revision petitioner. There is no serious challenge with regard to the identity of MO1 being the gold chain as belonging to PW2. Though PW2 was cross-examined, nothing was brought out to disbelieve her evidence as to how she sustained the injuries. If in fact the injuries were not inflicted by the revision petitioner, PW2 would not have falsely implicated revision petitioner and CRRP 2438/08 7 thereby allowed the real culprit to escape. It is more so when evidence of PW2 establish that she had acquaintance with the revision petitioner as he had worked for her earlier and PW2 had even prepared food for him while he was working as a carpenter. Evidence of PWs 1 and 5 corroborates the evidence of PW2. Their evidence establish that hearing the cry of PW2 they rushed to the house of PW2 and found the revision petitioner running away through the kitchen side. The evidence of PW1 establish that he followed the revision petitioner and caught hold of him. By that time hearing the cry other people also gathered there and they tied the revision petitioner and informed the police. The evidence of PW10 establish that PW10 after arresting the revision petitioner recovered MO1 from his possession. Evidence therefore conclusively establish that the revision petitioner committed robbery as he committed theft of MO1 and theft was committed causing injury. As petitioner inflicted injuries while committing robbery with a deadly weapon MO2, iron bar, conviction of the petitioner for the offence under section 397 of Indian Penal Code is perfectly legal and correct. 8. Then the question is regarding the sentence. Section 397 provides a minimum of sentence of imprisonment for seven CRRP 2438/08 8 years and fine. The learned Assistant Sessions Judge only awarded the minimum sentence provided under section 397 in addition to a fine of Rs.10,000/-. In such circumstances I find no reason to interfere with the sentence also. Confirming the conviction and sentence revision is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-