IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA TUESDAY, THE 22ND DAY OF MARCH 2011/1ST CHAITHRA 1933 CRL.A.No. 702 of 2003 ( ) ------------------------- AGAINST THE JUDGMENT IN SC.212/1999 of ADDITIONAL SESSIONS COURT (ADHOC), THRISSUR DATED 29-04-2003 APPELLANT(S): ------------------------ 1. T.R. MOHANAN, S/O THATTAN RAGHAVAN, CHITTANADA VILLAGE CHITTANADA DESOM, THALAPPILLY TALUK, THRISSUR DISTRICT. 2. A.A. MOHANAN, S/O. ALATHUR MANAPPADY AYYAN, CHITTANADA VILLAGE, DESOM, THALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV. SRI.K.A.SREEJITH RESPONDENT(S): ------------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. P.A. SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-03-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. HEMA, J ---------------------- Crl.Appeal.No. 702 OF 2003 ----------------------------------- Dated 22nd March, 2011 J U D G M E N T This appeal arises from the conviction and sentence passed against appellant under sections 457 and 392 of Indian Penal Code ('IPC' for short). 2. According to prosecution on 25.10.1996 at about 7.55 pm. Appellants 1 and 2 along with 11 other persons formed themselves into an unlawful assembling and in prosecution of common object of that assembly to commit dacoity in the house of CW1 father in law of PW1, committed house trespass by entering into his house and commit dacoity by taking away various articles from the house of CW1 which were marked as MO1 to MO20. 3. To prove prosecution case, prosecution examined PW1 to PW17, marked Ext.P1 to P29 and MO1 to MO20. Accused denied the allegations and stated that first accused had filed a complaint against PW12, who is the son of PW1 and that he was convicted by Vigilance court. Therefore, he has got enmity towards first Crl.A. No.702/03 2 accused. It is also stated by first accused that PW12 had collected Rs.40 lakhs on promise to supply visa and he cheated people in the locality. First accused is a member of CPM and he requested the authorities to take action against PW12. PW12 was convicted in three criminal cases by Magistrate court. According to second accused PW12 has enmity towards him since he raised allegations against him regarding the misappropriation of the funds while he was working as a teacher in a school. 4. While questioned under section 313 of Code of Criminal Procedure, it is stated that first accused is a worker of CPM and CW21, who is the husband of PW1 is the State Secretary of Kerala State Teachers Association and also a CPM worker. A statement was given by first accused to the Dy.S.P. secretly since he came to know that CW21 was misappropriating huge sum of money while he was the Manager of a U.P. School. 5. The accused further stated that a case was registered by Vigilance and he was convicted also. It is also stated that CW21 and his close relatives and the Secretary collected about Rs.40 lakhs from about 40 persons, promising to arrange Visa and job. CW21 did not act as promised. The party decided to take action against CW21. First and second accused pasted posters calling upon people to isolate such persons like CW21. Therefore, CW21 Crl.A. No.702/03 3 and his family members have great enmity towards first accused and thereby he was falsely implicated. Criminal cases were registered against CW21 and others and accused were convicted also. Second accused also stated that he had pasted posters making allegations against CW21 and also raised slogans against him and that is the reason why CW21 was motivated against second accused. The trial court after considering the evidence in detail held that here is evidence to show that appellants (A1 and A2) had removed the articles from the house. It was also found that the evidence was convincing and hence convicted first and second accused. It was further held that there is no evidence regarding identity of other accused and hence they are acquitted. The trial court also held that prosecution case cannot be thrown out because of some discrepancy in the statement made in first information statement. 6. On hearing both sides and on going through the records and evidence, I find that appellants were convicted for offence under section 457 and 392 of IPC., even though they were charged for offence under Section 395 IPC. To constitute offence under section 392 IPC there must be theft or extortion. Theft is “robbery” if, in order to the committing of theft, or in committing the theft, accused voluntarily causes hurt or wrongful restraint to Crl.A. No.702/03 4 any person. In this case, there is no allegation that any hurt was caused to any person in the course of incident. But an allegation is made that PW1 who was present in the house was tied up with a towel by second accused and thereby wrongful restraint was caused to PW1. But the evidence regrading the above aspect is shabby. 7. It is true that PW2 gave evidence in court that she was wrongfully restrained by tying her hands to staircase with a towel by second accused. But the said allegation came to light only at a highly belated stage. A perusal of Ext.P28 First Information Statement given by CW1 who is the master of the house shows that such allegations were not there in the first information statement which was given in about 24 hours after the incident. (date of occurrence is 25.10.1996, date of FIR is 26.10.1996 at 6.15 pm) 8. According to CW1, as per First Information Statement, PW1 was standing close to him when the incident occurred. He had no case that PW1 was in any way wrongfully restrained. CW1 is not examined in court, without assigning any reason. An adverse inference can be drawn against prosecution because if CW1 is examined, a very vital contradiction could be brought out Crl.A. No.702/03 5 from his evidence, which will go against the version given by PW1. 9. It is brought out from the evidence of PW1 that immediately after the incident PW12, who is her son came home and she told the entire incident to PW12. She also deposed that she had told PW12 that appellants were involved in the offence and she was wrongfully restrained by second accused. PW12 also deposed in court that such information was given by PW1 also. That means, PW12 must be aware that PW1 was wrongfully restrained by tying up by second accused immediately after the incident. 10. But in the first information statement given after about 24 hours of the incident, none of the accused were named. No names were mentioned in the first information statement, Ext.P28. If the version given by PW1 is accepted, there is no reason why the names of the appellants are not stated in the FIR. According to PW1, herself, her father CW1 was present in the house at the time of incident. So, the circumstances under which the names of accused 1 and 2 were later brought to light is to be looked into. 11. Even otherwise, going by evidence of PW1 herself, first accused has not committed any robbery. She has no case that Crl.A. No.702/03 6 first accused either voluntarily caused hurt to her or committed any overtact or wrongfully restrained her. Therefore, accused cannot be said to have committed robbery individually. He is convicted under section 392 IPC, which is not sustainable. The person who commits theft alone cannot be said to be committed robbery. The allegation of wrongful restraint made by second accused comes at a belated stage much after recording of first information statement. Unless there is evidence to corroborate evidence of PW1, it is not safe to act upon evidence of PW1 alone to convict the accused for offence under section 392 IPC. 12. According to prosecution the neighbours witnessed the incident. PW3 has given evidence that PW3 has come to the house and asked to go away, but PW2 has no such case. She did not say that accused had committed any offence at all. Of course, PW3 stated that second accused was found standing in the court yard. But, she has no case that PW1 was wrongfully restrained by second accused or any hurt was caused by him to PW1 or any theft was committed by him. 13. Learned public prosecutor pointed out that PW2 had seen the first and second accused standing near the jeep in which fridge, washing machine etc. were loaded. This version is corroborated by evidence of PW1, it is submitted. A close reading Crl.A. No.702/03 7 of evidence of PW2 will show all what is stated was that a jeep was found loaded with fridge and washing machine and that accused 1 and 2 were standing. He had not even stated that those persons were standing close to the jeep or whether he had any connection with the articles loaded in the jeep. 14. There is nothing in evidence of PW2 to show whether accused 1 and 2 had anything to do with the jeep or loading of articles in the jeep. The mere presence of accused itself is not sufficient to come to a finding that those persons were involved in the alleged offence, especially since their names were brought to the array of accused at a very belated stage. 15. It is also pertinent to note that there was every occasion for registering first information statement immediately after the incident and also for implicating at least first and second accused in the offence. PW1 and PW12 deposed that immediately after the incident, PW12 went home while PW1 disclosed to him that first accused had tied her up with the staircase and all the articles were taken up by about 20 other persons. According to PW12, he had gone to police station immediately. He had got information that his father was in police station. Father was released, since he went to the police station. He was detained in the police station, since he was found quarreling with one Thomas. Crl.A. No.702/03 8 16. PW12 has given evidence that he did not tell the police anything about what transpired in the house, even though about 20 persons came into the house, out of which two persons were identified by his mother at the time of occurrence and they took most of the house hold articles. It is highly unbelievable that he did not make any complaint to the police. No reason is stated why he did not make any complaint to the police even though he was in the police station immediately after the incident. All these facts will raise a doubt whether the incident as alleged has taken place because PW12 had reasons to know about involvement of first and second accused. 17. Taking all these facts into consideration, I think that a reasonable doubt is cast on the testimony of PW1 and it is not safe to act upon the same to convict the appellants for alleged offences. Even if it is held on the basis of evidence given by PW1 and various other witnesses that the article were taken away and those were later recovered etc., it is doubtful whether appellants were involved in the offence and they were identified at the scene. Absence of making any allegation against appellants at the earliest point of time and the absence of any mention about the involvement of first and second accused in the offence, the only reasonable conclusion will be that PW1 would not have Crl.A. No.702/03 9 identified the persons who took away the articles at the time of offence. 18. It is in evidence that there was power cut when the incident had occurred. As per FIR, incident occurred at 8 pm and as per evidence of PW1 there was power cut from 8 pm to 8.30 pm. Before the light came, incident was over. Hence conviction entered against appellants cannot be sustained. In the result the following order is passed : (i) The conviction and sentence passed against appellants under sections 457 and 392 of IPC are set aside. (ii) The appellants are found not guilty and they are acquitted of offence under sections 457 and 392 of IPC. (iii) Appellants are set at liberty forthwith. This appeal is allowed. Sd/- K. HEMA, JUDGE. Sou. // True copy //