IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 19TH SEPTEMBER, 2008 / 28TH BHADRA, 1930 CRL.A.No. 1592 of 2007 [SC.688/2006 of ADDL. SESSIONS COURT (ADHOC), PATHANAMTHITTA CP.149/2006 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. SMT.SANGEETHA LAKSHMANA(STATE BRIEF) RESPONDENT: ----------------- STATE OF KERALA REPRESENTED BY A PUBLIC PROSECUTOR BY PUBLIC PROSECUTOR SMT.K.L.LAKSHMI RANI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.A.No. 1592 of 2007 --------------------------------------------- Dated this the 19th day of September, 2008 J U D G M E N T This is an appeal preferred by the accused from jail, who are undergoing sentence as per the judgment dated 30.6.2007 in S.C.No.688 of 2006 in the Court of Additional District and Sessions Judge (AD HOC) Court-I, Pathanamthitta. By the impugned judgment, the trial court found that the accused/appellants, who are three in number, were guilty under Section 397 read with Section 34 of the Indian Penal Code and accordingly, they were sentenced to undergo rigorous imprisonment for seven years. 2. The prosecution case is that on 30.8.2005, at 1 a.m., the accused, in furtherance of their common intention to commit robbery, knocked at the door of the house wherein PW1 resides with family and when PW1 opened the door, the first accused snatched away a gold chain weighing 3½ sovereigns worn on the neck of PW2 who was standing with PW1 on the steps on the west of CRL.A. NO.1592 OF 2007 :-2-: the door. When the first accused snatched the chain, PW2 sustained abrasion on her neck. When PW1 intervened, the third accused caused a blow on his forehead with the stick of a rubber tree and the same was resisted by PW1 with his right hand thereby resulted in causing fracture to the bone of the palm adjacent to the little finger of PW1. The second accused aided accused Nos.1 and 3 in the commission of the offence. For the above incident, PW1 gave Ext.P1 F.I.statement which was recorded by PW7 on the basis of which Ext.P1(a) F.I.R. was registered for the above offence as Cr.No.590 of 2005 in the Adoor Police Station. PW7 conducted investigation and filed a final report before the Judicial First Class Magistrate Court, Adoor wherein the case was numbered as C.C.No.1039 of 2005. Subsequently, a mistake came to the notice of the learned Magistrate that the case is triable by a court of Sessions and thus the case was renumbered as C.P.No.149/06 and subsequently, by order dated 16.10.2006, the case was committed to the court of CRL.A. NO.1592 OF 2007 :-3-: Sessions wherein cognizance was taken and made over to the trial court for disposal. During the trial, a formal charge was framed against the accused which is read over to which the accused pleaded not guilty and trial was further proceeded. During such trial, Pws.1 to 9 were examined from the side of the prosecution and Exts.P1 to P8 were marked as documentary evidences. No defence evidence was adduced. Material objects are marked as Mos.1 to 3. Based upon the materials and evidence on record and the rival contentions advanced during trial, the trial court formulated three issues for its consideration. After evaluation of the evidence on record and consideration of the entire case, the trial court came into a conclusion that the accused were guilty of the offences charged against them and accordingly, they were convicted. On conviction, after hearing on sentence, the trial court sentenced the accused to undergo rigorous imprisonment for seven years each for the offence under Section 397 read with Section 34 I.P.C. Set off was also allowed by the court CRL.A. NO.1592 OF 2007 :-4-: below. It is the above conviction and sentence challenged in this appeal. 3. The appeal is prosecuted by Smt.Sangeetha Lakshmana who appeared as State Brief and the same is defended by the learned Public Prosecutor. 4. To substantiate the allegation with respect of the incident, the prosecution depends upon the oral testimonies of Pws.1,2 and 8. Pws.1 and 2 are the injured in this case. They deposed before the court in terms of the prosecution case. According to the deposition of Pws.1 and 2, on 30.8.2005 at about 2 a.m. the incident occurred. Pws.1,2 and 8 are the inmates and they went to bed between 11 pm and 12 midnight. According to them, on hearing the knocking sound of the door, all the inmates wake up and they could see through the window three persons outside the house and when there was no response from those persons, Pws.1 and 2 opened the front door. By that time, the accused rushed towards them and one of them caught hold on the hair of PW-2 and when tried to snatch away the CRL.A. NO.1592 OF 2007 :-5-: gold chain, PW1 intervened. Then PW1 was beaten with a piece of firewood which caused injury to his right little finger and forehead. The gold chain weighing 3½ sovereigns was snatched away during which PW2 sustained injury on her neck and all the accused escaped from the scene. The prosecution witnesses Pws.1 and 2 identified all the accused. PW1 identified the first accused as the person who caught hold on the hair of PW2, second accused who caught hold on his hand when he tried to interfere with the attempt of first accused to snatch away the ornament from PW2. and the third accused who had beaten him with a piece of firewood, which caused injuries to PW1. Evidence of PW2 corroborated with the evidence of PW1 regarding the overt acts of the accused. PW8, who was a maid servant with Pws.1 and 2 and deposed in terms of the prosecution, identified accused 1 to 3. Though a contention was taken that the prosecution witnesses failed to identify the accused, the substantive evidences adduced through the evidences of Pws.1,2 and 8 are CRL.A. NO.1592 OF 2007 :-6-: capable to reject those contentions. The trial court, after considering the facts that Pws.1, 2 and 8 when questioned by the Police stated before them that they were able to identify the accused at sight, and subsequently on arrest of the accused, the witnesses identified the accused during police custody and the identity of the accused was further established during the time of trial, found that there is no doubt regarding the identity of the accused and the prosecution witnesses correctly identified them. 5. After the arrest, the accused, in connection with another crime, were questioned and on that questioning, the first accused disclosed about the sale of ornaments which were robbed from the house of PW.1 to PW.9. According to the prosecution, the recovery was effected as per Ext.P5 recovery mahazar prepared by PW7. Ext.P5(a) is the disclosure statement of first accused on the basis of which the material objects were recovered. After a detailed discussion and considering the legal position settled through the judicial CRL.A. NO.1592 OF 2007 :-7-: pronouncement, the trial court found that the recovery under Section 27 of the Evidence Act stood proved. According to PW7, the seizure was effected with the aid of PW9 who is an accused in S.C.No.228/2006 for offence under Section 411 of I.P.C. While PW9 was examined, in chief examination, he did not support the prosecution case regarding the purchase of gold chain, but in the cross examination, he stated that he was called to the Adoor Police Station and he handed over 70 sovereigns of gold ornaments. PW5, though denied his signature in Ext.P5, had subsequently admitted that he is also a witness in S.C.No.228/2006 in which PW4 is the fourth accused. Though Pws.5 and 9 turned against the prosecution, PW5 admitted that he signed in the Mahazar prepared in the shop of PW7, but the trial court, after comparing the signature of PW5 in Ext.P5 document and his admitted signatures, found that the recovery was effected as per the information gathered from the first accused and the same was accepted. So on analysing the entire evidence on record, it can be CRL.A. NO.1592 OF 2007 :-8-: seen that the prosecution succeeded in establishing the nexus of the accused with the incident mainly based upon the recovery effected under Section 27 of the Evidence Act. It is already established by the prosecution through evidences of Pws.1 ,2 and 8 that the accused were present at the time of the incident and overt acts of each of the accused were thoroughly established beyond any doubt and the evidence under Section 27 of the Evidence Act is further linked the accused with the commission of the offence. 6. The learned counsel appearing for the appellants submits that though PW1 has claimed that he had sustained injury on his forehead, the same has not been proved and it is pointed out that the oral evidence of Pw.3 who examined PW1 and issued wound certificate with respect to PW1 has not mentioned about the head injury. On going through the evidence of PW3, it can be seen that he had noticed the injury on the finger on his hand. It can be seen from the judgment of the trial court that the court below observed that Ext.P2 CRL.A. NO.1592 OF 2007 :-9-: certificate is prepared in a most irresponsible way that one cannot even read what is written there. The trial court found that the evidence of PW3 and PW8 and body note confirmed the injury sustained to PW1 on his forehead. Based upon the decision of this Court, the trial court further found that even if there is some conflict between the expert evidence and the substantive evidence, the substantive evidence is to be weighed and medical evidence need not be considered. Therefore, I am of the view that even though PW3 failed to depose about the injury on the forehead of PW1, it may not affect the prosecution since the contemporary document viz., the body note of PW1 indicates the injury sustained by PW1 both on his forehead and on his finger. Since the identity of the accused is established beyond doubt and recovery of the materials pursuant to the disclosure statement made by the first accused are sufficient to hold that the accused are guilty, I find no reason to interfere with the finding arrived on by the trial court and accordingly, the conviction is confirmed. CRL.A. NO.1592 OF 2007 :-10-: The learned counsel for the appellants submits that the accused are from Tamil Nadu and a lenient view may be taken in the matter of sentence and thus prays to reduce the sentence. The trial court considered the plea of the accused with respect to the sentence and imposed seven years of rigorous imprisonment under Section 397 read with Section 34 I.P.C. Though the prosecution has alleged that the accused are involved in several cases, no material is furnished and nothing brought on record to show their involvement. Considering the above facts, I am of the view that sentence can be reduced from seven years to five years. In the result, this appeal is dismissed while confirming the conviction entered into by the court below, but the sentence awarded against the accused is reduced from seven years to five years rigorous imprisonment. V.K.Mohanan, Judge MBS/ CRL.A. NO.1592 OF 2007 :-11-: V.K.MOHANAN, J. -------------------------------------------- Crl.A.NO. 1592 OF 2007 -------------------------------------------- J U D G M E N T DATED: 19-9-2008 CRL.A. NO.1592 OF 2007 :-12-: