IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930 Crl.Rev.Pet.No. 2437 of 2008() ------------------------------ CRA.589/2007 OF SESSIONS COURT, ERNAKULAM CC.287/2006 of CHIEF JUDL.MAGISTRATE COURT, ERNAKULAM .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------- BABU @ KOCHUBABU, S/O.BASHEER, C.NO.6155, CENTRAL PRINSON, VIYYUR, THRISSUR-10. (HOUSE NO.25, UDAYA COLONY, GANDHI NAGAR, KADAVANTHRA, ERNAKULAM) BY ADV. M.SINDHU THANKAN (STATE BRIEF) RESPONDENT/COMPALINANT & STATE: --------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. AMJAT ALI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO.2437 OF 2008 ------------------------------------------ Dated this the 16th day of September, 2008 O R D E R Petitioner was convicted and sentenced for the offence under Section 394 of Indian Penal Code by the Chief Judicial Magistrate Court, Ernakulam in C.C.287 of 2006. Prosecution case was that on 12.11.2006 at about 10.30 a.m. while PW1, the lottery ticket vendor was engaged in his employment at the southern road margin near Sreekumareswaram Subrahmanya Temple, which is situated near to K.S.R.T.C. Bus stand, Ernakulam, petitioner approached him and asked for Rs.100/-. When PW1 refused to give the money, petitioner forcibly took away the money from the pocket of PW1 and when he resisted, petitioner inflicted injuries on him with MO1 blade and took away lottery tickets worth Rs.175/- and also Rs.900/- thereby committed the offence under Section 394 of Cr.P.C. The injured PW1 was admitted to General Hospital, Ernakulam on the same day. On getting information, PW4 the Assistant Sub Inspector went to the hospital and recorded Ext.P1 F.I. Statement. PW3, CRRP2437/08 2 the Sub Inspector of Police, based on Ext.P1 F.I. Statement recorded Ext.P3 F.I.R. and registered the crime. On the next day in the presence of PW3 the attesting witness he prepared Ext.P2 scene mahazar. Petitioner was arrested and MOs 1 and 2 were recovered. After completing the investigation, charge was laid. Petitioner was under detention from the date of his arrest on 15.11.2006. He pleaded not guilty. Learned Magistrate on the evidence of PW1 to 5, Ext.P1 to P6 and MO1 and MO2 convicted the petitioner and sentenced him to rigorous imprisonment for three years and a fine of Rs.3,000/- and in default simple imprisonment six months. Set off was allowed as provided under Section 428 of Cr.P.C. Petitioner from jail preferred criminal appeal 589 of 2007. A State Brief was appointed to argue the appeal on his behalf. Learned Sessions Judge, on reappreciation of the case, confirmed the conviction and sentence and dismissed the appeal. A revision was filed from the jail. Advocate Smt. Sindhu Thankan was appointed the counsel for appearing for petitioner. 2. Learned counsel appearing for petitioner and learned public prosecutor were heard. 3. Learned counsel submitted that as per Ext.P3 F.I.R., CRRP2437/08 3 the incident was not on 12.11.2006 but on 13.11.2006 and therefore Courts below should not have believed the prosecution case and found that there is no evidence to prove that petitioner inflicted the injuries on PW2 or robbed the cash and lottery tickets. It was argued that though PW2 was examined as eye witness, he did not support the prosecution case and the only evidence available in support of prosecution case is PW1. It was argued that as no test identification parade was conducted, courts below should not have relied on the evidence of PW1 to fix the identity of assailant and though MOs 1 and 2 were recovered, the witnesses to Ext.P5 recovery mahazar were not examined and courts below on the evidence should not have found petitioner guilty and therefore the conviction and sentence are not sustainable. 4. Ext.P3 F.I.R. was prepared based on Ext.P1 F.I.Statement of PW1 recorded by PW4. The evidence of PW4 with Ext.P1 F.I.Statement establishes that on getting information that PW1 was admitted in the hospital on the previous day sustaining injury, PW4, the Assistant Sub Inspector proceeded to General Hospital and recorded Ext.P1 F.I. Statement and thereafter returned to the police station. CRRP2437/08 4 Evidence of PW5, Sub Inspector establishes that Ext.P3 F.I.R. was prepared based on Ext.P1 F.I. Statement. True, Ext.P3 shows that the gist of the prosecution case was that the incident was on 13.11.2006. As rightly found by Courts below, when the evidence of PW4 with Ext.P1 F.I. Statement establishes that PW1 sustained injury and was admitted in the hospital on the previous day and PW4 reached the hospital and prepared Ext.P1 F.I. Statement on 13.11.2006 and in the statement of PW1 his case was that he was attacked on 12.11.2006, evidence of PW5 that the date was mistakenly shown in Ext.P3 as 13.11.2006 could only be accepted. Therefore based on the mistake committed by PW5 in showing the gist of the statement of PW1 recorded by PW4 in Ext.P3 prosecution case cannot be disbelieved. 5. Though PW2 the independent witness turned hostile to the prosecution and the doctor who prepared Ext.P6 wound certificate was not examined, evidence of PW1 establishes that he sustained injury when he was attacked by the petitioner on the previous day to the date of recording Ext.P1 F.I. Statement. Though test identification parade was not conducted, trial Court and the Sessions Court relied on the evidence of PW1 to fix the CRRP2437/08 5 identity. The evidence of PW1 establishes that PW1 could identify the assailant who first demanded money from PW1 and on his refusal caught hold of his pocket and thereafter inflicted injuries with a blade like weapon. There is no reason to disbelieve the evidence of PW1. The appreciation of evidence by the Courts below cannot be said to be perverse warranting interference in exercise of the revisional powers of this Court. The evidence of PW1 establishes that the petitioner robbed Rs.900/- from his pocket, apart from the lottery tickets on 12.11.2006 at about 10.30 a.m. as alleged by the prosecution and also inflicted injuries on PW1 in the course of that transaction. In such circumstances, conviction of the petitioner for the offence under Section 394 of Indian Penal Code is perfectly correct. 6. Then the question is whether the sentence awarded by the Courts below is to be modified. The learned Magistrate awarded a sentence of rigorous imprisonment for three years apart from a fine of Rs.3,000/-. Section 394 of Indian Penal Code provides for a sentence of imprisonment for life or rigorous imprisonment for a term which may extend to 9 years and also fine. The petitioner was in detention from the date of CRRP2437/08 6 apprehension on 15.11.2006. There is no case for prosecution that he was involved in any other offence of similar nature. In such circumstances interest of justice will be met if the substantive sentence is reduced to rigorous imprisonment for two years from three years. The revision is therefore allowed in part. While confirming the conviction fro the offence under Section 394 of Indian Penal Code, the substantive sentence alone is modified by reducing to rigorous imprisonment for two years. M. SASIDHARAN NAMBIAR, JUDGE Okb/-