IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 22ND DECEMBER 2009 / 1ST POUSHA 1931 CRL.A.No. 1602 of 2003() ------------------------ SC.127/2003 of ADDL.SESSIONS COURT (ADHOC), KOTTAYAM .................... APPELLANT(S): ACCUSED. ---------------------- RADHAKRISHNAN, S/O.VASU MENON, KULANGARA VEEDU, KARAPPUZHA, KOTTAYAM. BY ADV. SRI.RAJEEV V.KURUP RESPONDENT(S): COMPLAINANT. --------------------------- THE STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.Appeal.No.1602 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of December, 2009 JUDGMENT The challenge in this appeal by the accused in S.C. No.127/2003 is to the judgment of the Additional Sessions Court (Adhoc-I), Kottayam dated 30.8.2003 convicting the accused under secs.452 and 397 of IPC and sentencing him to undergo rigorous imprisonment for seven years under sec.397 of IPC and rigorous imprisonment for three years under sec.452 of IPC. The substantive sentences were ordered to run concurrently. 2. The case of the prosecution as shaped in evidence before the lower court is that on 16.10.2002 between 6 p.m. and 7.15 p.m. the accused trespassed into the house of PW.2 Saraswathy Amma, aged 72 years, bearing door No.9/231 of Aymanam Panchayath and committed robbery of a gold chain and two gold bangles worth Rs.15,000/- after inflicting bodily injuries to her and that thereby committed the offences punishable under secs.452 and 397 of IPC. Crl.Appeal No.1602/03 Page numbers 3. PW.5 Chandrasekharan Nair is a neighbour of PW.2. On 16.10.2002 when he went to see PW.2 at her house, she was found lying injured in her kitchen. He informed PW.6, another neighbour, and took her to Grace Hospital at Parippu and then from there to the Medical College Hospital. On the basis of the information given by PW.5, PW.9, the then Sub Inspector of Kottaym West Police Station, went to the hospital and recorded the statement of PW.5 and registered a case. He arrested the accused on 4.2.2003 and produced him before the Judicial First Class Magistrate Court-III with a remand report. The accused was in judicial custody from that day onwards. 4. When the accused was produced before the committal court, copies of documents relied on by the prosecution were furnished. As the offence under sec.397 of IPC is exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Sessions Court, Kottayam, which was made over to the trial court for trial and disposal. The accused when produced before the lower court pleaded not guilty to the charge under secs.452 and 397 of IPC. PWs.1 to 10 were examined and Exts.P1 to P9(a) and M.Os.1 to 3 were marked on Crl.Appeal No.1602/03 Page numbers the side of the prosecution. When questioned under sec.313 Cr.P.C. by the trial court, the accused denied the entire incident. On the side of the accused, Ext.D1 was marked. 5. The lower court on an appreciation of evidence found the accused guilty of the offences punishable under sec.452 and 397 of IPC., convicted him thereunder and sentenced him as aforesaid. The accused has now come up in appeal challenging his conviction and sentence. 6. Heard the counsel for the appellant and the Public Prosecutor. 7. The following points arise for consideration:- I. Whether the conviction of the revision petitioner under secs.452 and 397 of IPC can be sustained? II. Whether the sentence imposed is excessive or unduly harsh? Point No.I 8. PWs.1 to 10 were examined and Exts.P1 to P9(a) and M.Os.1 to 3 were marked on the side of the prosecution to prove the guilt of the accused. PW.1 is the then Lecturer in Surgery of the Medical College, Crl.Appeal No.1602/03 Page numbers Kottayam, who examined PW.2, the de facto complainant on October 16, 2002 at about 7.50 p.m. and noted the injuries described in Ext.P1 wound certificate. The evidence of PW.1 shows that on the date of the incident she sustained the injuries described in Ext.P1. 9. PW.2 is the injured and de facto complainant in this case. She testified before the trial court thus:- In 2002 on the relevant date a person came to her house. On peeping through the window, she found the accused standing there. The accused is a distant relative of PW.2. Therefore she opened the door and the accused came into the house. PW.2 went to the kitchen for taking tea. At that time the accused came from behind and hit her on her head and caught hold of her by her neck. She fell down and sustained injuries on her eyebrow and forehead and became unconscious. When she regained conscience, the gold chain and the two gold bangles which she was wearing were found missing. She identified MO.1 as the gold chain which was robbed from her neck. 10. She was elaborately cross -examined by the defence counsel before the trial court, but nothing was brought out during her cross- Crl.Appeal No.1602/03 Page numbers examination to discredit her evidence. Her evidence was mainly criticized on the ground that she would not have recognized the accused as she stated that she was hit from behind. I am unable to agree. PW.2 has categorically stated that it was the accused who hit her. Further, the accused is a distant relative of her and previously known to her. He is the son of her mother-in-law's younger sister. That being so, the above argument advanced by the counsel for the appellant that PW.2 might not have recognized the accused at the time of the incident has only to be rejected. The learned counsel for the appellant took me through the deposition of PW.2. No serious discrepancies or inconsistencies were brought out in cross-examination to discredit her evidence. Further, PW.2 has absolutely no enmity towards the accused. For all these reasons I find that the trial court is perfectly justified in believing her evidence regarding the incident. 11. PW.3 is the daughter of PW.2. She has not witnessed the incident. She would say that PW.2 used to wear a gold chain and two bangles of gold. She is not an eye-witness to the incident. PW.4 is an employee of Narasimha Swamy Temple at Aymanam. PW.2 is his Crl.Appeal No.1602/03 Page numbers neighbour and is known to him. On the date of the incident i.e. on 16.10.2002 at about 5 p.m. the accused asked for a loan of Rs.300/- from him. PW.4 told him that he did not have any money with him. On the instruction of one of his friends Saji, PW.4 obtained some liquor for the accused. They went to the backyard of the Aymanam Devaswom Complex and consumed the alcohol. At that time the accused told PW.4 that he was going to the house of PW.2 and left. The evidence of PW.4 was not seriously challenged in cross- examination. His evidence shows that on the date of the incident the accused told him that he was going to the house of PW.2. 12. Pws.5 and 6 are neighbours of PW.2. PW.6 would say that he had seen the accused sitting on a chair in the house of PW.2 at about 7.30 p.m. on the date of the incident. The evidence of PW.6 shows that on the date of the incident the accused had gone to the house of PW.2 which probabilise the case of the prosecution regarding the robbery. PW.8 turned hostile and did not support the prosecution. PW.9 is the Sub Inspector of Police, Kottayam West Police Station, who registered the case Ext.P2 on the basis of the information given by Crl.Appeal No.1602/03 Page numbers PW.5. PW.9 prepared the scene mahazar and got it attested by the witnesses. He conducted the preliminary investigation in the case. PW.10 is the then Additional Sub Inspector of Police, Kottayam West, who arrested the accused and recorded his confession statement. On the basis of the information given by the accused, he recovered MO.1 as per seizure mahazar Ext.P9(a) in the presence of independent witnesses. PW.7 is a goldsmith who allegedly received MO.1 from the accused for Rs.5000/- which he has denied in evidence. Counsel for the appellant argued that as PW2 has testified that she was attacked from behind, her version that she had identified the accused cannot be believed. There is no substance in the above contention. PW2 testified that on hearing the door bell she went near the door and found the accused standing there and opened the door and accused came inside the house and that while she was preparing the tea the accused came from behind and attacked her. Nothing was brought out during her cross examination to discredit her evidence. That apart, the accused is the son of her son-in-law's mother's younger sister. PW3, the daughter of PW2 also identified the accused as her mother- Crl.Appeal No.1602/03 Page numbers in-law's younger sister's son. Therefore the above argument advanced by the counsel for the appellant has only to be rejected. That apart, the presence of the accused in the house of PW2 during the relevant time was proved by the evidence of PWs 4 and 6. PW4, the neighbour of PW2 stated that on 16-10-2002 between 4.30 and 5 P.M. he talked with the accused, that when the accused requested for a loan of Rs. 300/- from him, he refused and accused expressed his idea to go to the house of PW2. PW6 who is another neighbour of PW2 stated that on 16-10-2002 between 5:30 P.M.and 6 P.M., he saw the accused sitting on a chair in the house of PW2 which clearly shows that during the relevant time accused was present in the house of PW2. Counsel for the appellant challenged the recovery of MO1 gold chain on the basis of the information given by accused on the ground that in Ext.P9 (a), the recovery mahazar , the relevant portion of the confession statement recorded by PW10 is not in proper form and that therefore, the recovery of MO1 on the basis of information given by the accused cannot be relied on. There is no substance in the above Crl.Appeal No.1602/03 Page numbers contention. In Ext.P9(a) mahazar, PW10 has extracted the relevant portion of the confession statement made by the accused. I find no infirmity in the same. Further the evidence of PW10 regarding the said recovery has not been shaken in cross examination. Therefore the prosecution has succeeded in proving the recovery of MO1 gold chain on the basis of the information given by the accused which supports the case of the prosecution that it was the accused who committed robbery of the same from the house of PW2, as alleged by the prosecution. No other point is argued before me. For all these reasons, I am inclined to hold that prosecution has succeeded in proving that on 16-10-2002 in the evening accused trespassed into the house of PW2 bearing door No.9/231 and committed robbery of MO1 gold chain and two gold bangles after inflicting grievous injuries to PW2 which are offences punishable under Sections 452 and 397 of IPC. Therefore I confirm the conviction of the accused by the lower court under Section 452 and 397 of IPC. Point No.2 As regards the sentence, the trial court has imposed a sentence of Crl.Appeal No.1602/03 Page numbers rigorous imprisonment for seven years under Section 397 of IPC and rigorous imprisonment for three years under Section 452 of IPC. The substantive sentences were ordered to run concurrently. The accused is still in custody. He was arrested on 4-02-1993. Therefore he is in custody for 6 years and 10 months. Taking into consideration this aspect, I feel that the sentence imposed under Section 397 of IPC can be reduced to the period of imprisonment already undergone by him. In the result, the appeal is allowed in part. The conviction of the appellant/accused under Section 397 and 452 of IPC is confirmed. His sentence under Section 452 of IPC is also confirmed. Regarding the sentence under Section 397 of IPC, it is reduced to the period of imprisonment already undergone by him i.e. from 4-2-1993 to 22-12-2009. As he has already suffered the sentence, he shall be released forthwith , if not required in any other case. Send the records to lower court immediately. P.Q.BARKATH ALI JUDGE mt/sv. Crl.Appeal No.1602/03 Page numbers