IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 1ST AUGUST 2011 / 10TH SRAVANA 1933 CRL.A.No. 1685 of 2006() ------------------------ SC.35/2003 of ADDL. SESSIONS COURT (ADHOC), THODUPUZHA CP.118/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KATTAPPANA .................... APPELLANT(S): ACCUSED ---------------------- BIJU, S/O. KUTTAPPAN, AGED 30, VALIYAPARAMBIL HOUSE, THANKAMANY VILLAGE, KAMAKSHI KARA, IDUKKI. BY ADV. SMT.SEEMA.T.J (STATE BRIEF) RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/08/2011, THE COURT ON 01/08/2011 DELIVERED THE FOLLOWING: V.K.MOHANAN,J ------------------------------ Crl.A. No.1685 of 2006 -------------------------------------------- Dated this the 1st day August, 2011 JUDGMENT The appellant is the accused in Crime No.224/1999 of Kattappana Police Station and the challenge in this appeal is against the conviction and sentence imposed on him for the offence u/s. 392 of IPC. 2. The prosecution case is that, the accused 3 in numbers on 7.6.1999 at about 5.00 p.m., in furtherance of their common intention, got into an autorickshaw of PW1 at Kattappana and traveled to a place Vazhavara and on the way at the road near the house of Korottuchirackkal Jose at 7th mile area at Vazhavara, accused Biju attempted to murder PW1 by putting coir trap on the neck of PW1 which on being obstructed by the victim the accused stabbed PW1 with a knife and caused injury to him and thereafter forcibly took away the autorickshaw bearing Registration No.KL7-T-7166 and the accused thereby guilty of robbery and the attempt to cause grievous hurt in committing robbery as well as causing of hurt with deadly weapon and therefore, the accused are punishable u/ss.307, 392, 397 and 324 r/w Section 34 of IPC. Crl.A. No.1685 of 2006 2 3. On the basis of the above allegation, crime No.224/99 was registered in the Kattappana Police Station for the said offences and on completing the investigation, Police filed report before the Judicial First Class Magistrate Court, Kattappana and on taking cognizance for the said offences, CP No.16/99 was instituted against accused Nos.2 and 3 in the above crime and the case against the present appellant, who is the 1st accused has built as he was absconding and refiled the same as CP No.52/2000. Thus, when CP.No.16/99 was committal on 22.11.2000 and the trial was proceeded against A2 and A3, in the very same trial court, during which the prosecution adduced evidence consists of the deposition of Pws.1 to 9 and the documentary evidence of Ext.P1 to P8 and also identified MO1. The accused produced Ext.D1 and D2. By judgment dated 21.1.2003, A2 and A3, in the very same crime convicted for the offence u/s.379 of IPC and but they were released u/s.4(1) of the Probation of Offenders Act on probation of good conduct for a period of two years on executing bond. 4. Thus, the case against A1-the appellant was split up and refiled as CP No.52/2000. As the 1st accused is absconded steps initiated u/s.82 and 83 and the case was transferred to Crl.A. No.1685 of 2006 3 L.P.No.1/2000. Subsequently, the absconding accused, the present appellant was arrested and produced before the committal court and thus, the case against him refiled as CP.No.118/2002. Subsequently, by order dated 9.12.2002. The learned Magistrate committed the case to the Sessions Court wherein the same received as SC No.35/2003 and thereafter the case was made over to the Asst. Sessions Court, Kattappana and subsequently, the case made over to the trial court for trial and disposal. 5. Thus, when the accused produced from custody, a formal charge was framed against him which read over and explained to the accused but he pleaded not guilty and denied the entire charge. As the accused has no counsel of his choice, the trial court appointed one Animol, counsel for the defence. Thus, during the trial the prosecution has examined PW1 to 8 and marked as Exts.P1 to P9 and identified MO1, material object. During the 313 questioning the accused took a stand that there was a dispute, regarding the rent, arose between himself and a police constable in whose house he was residing on rent at Cheruthoni, and when he was staying at the house of his mother's younger sister at Murikkassery, there occurred a theft Crl.A. No.1685 of 2006 4 and the Police arrival therefore, for investigation. According to him, there was some ill will between him and the police came there. It is the further case of the complainant that out of that rivalry, about 40 cases were filed against him. However, on conclusion of the trial, the trial court has found that the prosecution has succeeded in proving only an offence u/s.392 of IPC against the appellant and accordingly, the trial court found the accused is not guilty of offences u/s. 397,324,327 and r/w Section 34 of IPC and convicted him only u/s.392 of IPC. On such conviction, the accused/appellant is sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.1,000/- and default to undergo simple imprisonment for 3 months. Set off was allowed. It is the above conviction and sentence, challenged in this appeal. 6. As the accused is undergoing imprisonment in pursuance to the sentence imposed as per the impugned judgment, he preferred the appeal from the jail and on receiving the same as ordered by this court, the Registry appointed Smt. Seema.T.J, a counsel from the panel of State Brief to prosecute the appeal for and on behalf of the appellant. Thus, I have heard Smt. Seema.T.J., the learned counsel appearing for the appellant Crl.A. No.1685 of 2006 5 and the learned Public Prosecutor. 7. PW1 is the victim, through whom Ext.P1 FI Statement given by him before the Kattappana Police is proved. According to PW1, during 1999 on Monday after 3.00 p.m the accused with two others ride his autorickshaw bearing Registration No.KL7-T- 7166 to Vashavara, the 2nd accused Shyju also boarded the autoriskshaw from a place Parappu. According to him, one litre petrol was taken from Madaprambil pump at Idukki junction. According to him, at the Nellippara road on a bent at 7th mile, he saw through the side glass mirror a rope being put around his neck which he managed to avert. Thereafter 3 persons beat him and the appellant Biju stabbed him with a knife causing an injury. He cried loudly, on hearing the same peoples gathered there. Thus, according to PW1, the accused then drove away with the autorickshaw. According to him in a jeep himself and others chased the autorickshaw and thus, at Erattayar they caught hold of A2 and A3 and the appellant-Biju ran away. The rope is identified as MO1 by PW1. Ext.P2 is the certificate of the kychit proved through him, as per which the Auto rickshaw released from the Police Station. During the cross examination of PW1, he failed to identify the person as to who inflicted the Crl.A. No.1685 of 2006 6 stab injury on him and he said, during cross examination that one among the 3 inflicted the injury. PW2, is a person who was one among the persons gathered on hearing the hue and cry of PW1 and according to him, he saw the rope, and he was told by PW1 that his autorickshaw was robbed and thus, he depose that he seen the autorickshaw driven towards 7th mile. According to PW2, PW1 informed him about the attempt from the part of the accused to trap his neck with rope. He had deposed in terms of PW1 that, PW1 chased the autorickshaw in a jeep. PW2 declared as hostile and his 161 statement of the Police is marked as Ext.P3. He had also identified MO1 rope as similar to as one he found at the place of occurrence. PW3 deposed that he had seen PW1 raising alarm alleging that his autorickshaw being robbed. According to PW3, he saw an injury like that of a stabbed one with knife that on the hand of PW1. He had also identified MO1 rope. According to PW3, himself and others chased the autorickshaw and at Erattayar he saw an autorickshaw being pushed forward by 3 persons and the same was identified by PW1 as his own autorickshaw and when they approached them, appellant/accused raising a knife towards them, escaped from the spot, but the other two persons and the autorickshaw were Crl.A. No.1685 of 2006 7 caught hold and produced before the Kattappana Police Station. PW4 is an attester to P4 mahazar for recovery of autorickshaw and PW5 is the Village Officer, who prepared Ext.P5 scene plan. PW6 is the doctor who examined PW1 at 11.00 a.m on 8.6.1999 and he issued Ext.P6 medical certificate noting abrasion on the right arm of PW1 with the alleged cause of stabbing at 7th mile. PW6 further deposed that the injury can be caused as alleged. Ext.P7 certificate is also proved through PW6. It is pertained to Biju, wherein the doctor has noted 5 abrasions which according to the doctor, are minor and superficial and the same can be caused by a fall on a rough surface. PW7 is the Police Constable, attached to Kattappana Police Station, who recorded Ext.P1 FI Statement of PW1 at 6.30 p.m on 7.6.99 and he registered Ext.P8 certified copy of the FIR. PW8 is the Circle Inspector of Police, Kattappana who undertook the investigation and he prepared scene mahazar and Ext.P9 is the certified copy of the same. PW8 is the person, who arrested the accused. MO1 is the piece of rope used for trapping PW1. According to him, the accused was medically examined and obtained Ext.P7 certificate. According to PW8, the knife could not be recovered since the same was thrown away. He had deposed that PW2 has Crl.A. No.1685 of 2006 8 given Ext.P3 statement. PW8 has categorically stated that the accused/appellant was known to him previously since he was an accused in a case of attempt to commit murder. It was PW8, who laid the charge after investigation. It is on the basis of the above evidence and materials, the trial court found the appellant guilty u/s.392 of IPC. 8. Smt. Seema.T.J., counsel appearing for the appellant vehemently submitted that the conviction and sentence imposed against the appellant is not sustainable either on law or on facts. According to her, the identity of A1 is not proved. In support of the above point, learned counsel submitted that there is no independent evidence examined by the prosecution. It is also the submission of the learned counsel that the contradiction that contained in the deposition of PW1 render his evidence as unreliable. Thus, according to the learned counsel there is no cogent evidence to establish the identity of the accused/appellant. The further submission of the learned counsel is that the evidence adduced by the prosecution is insufficient to warrant, the conviction against the appellant since the evidence of PW1 is not free or doubt and infirmities. Thus, according to the learned counsel, the prosecution has miserably Crl.A. No.1685 of 2006 9 failed to prove the guilt of the accused beyond reasonable doubt. It is also the submission of the learned counsel that the accused/appellant was not questioned properly u/s.313 of Cr.P.C. 9. On the other hand, Mr.Sivakumar, learned Public Prosecutor submitted that the evidence of the victim, PW1 is alone is sufficient to prove the identity of the accused and his evidence is in tact. In support of his contention, the learned Public Prosecutor has pointed out that the accused numbers 2 and 3, who are the co-accused in the very same crime has already been convicted by the same trial court, and the present appellant was absconding as a result of which the trial court was constrained to undertake, the second trial. According to the learned Public Prosecutor, the substantial evidence of PW.1, the injured and PW3 and PW4 the independent witnesses are supported the findings of the trial court. Thus, according to the learned Public Prosecutor the conviction recorded by the trial court is fully supported by the evidence and materials and no interference is warranted. 10. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the learned Public Prosecutor. I have perused the evidence and materials on Crl.A. No.1685 of 2006 10 record. 11. In the light of the above pleadings and in the light of the evidence and materials on record, the point to be considered is whether the conviction and sentence imposed by the trial court against the appellant is correct or not. In the present case, the crux of the prosecution allegation is that the accused 3 in numbers hired the Auto rickshaw bearing registration No.KL-7- 7166 of PW1 and when the autorickshaw was on the way, PW1 saw the accused/appellant putting the coir trap around his neck and he managed to avert the same and thereafter, the accused stabbed him with a knife which resulted in a small injury and Pws.2 and 3, who approached PW1 has seen a rope at the place of occurrence. It is true, that PW2 was declared hostile, but he had deposed that as similar to MO1 rope was found at the place of occurrence. PW3, during his deposition has categorically stated that he had seen an injury like that of stab injury on the hand of PW1 and also deposed about the presence of MO1 rope at the place of occurrence as he had seen. It is the further deposition of PW3 that he himself and others, along with PW1, after obtaining a jeep, chased the autorickshaw and the same was detected from Erattayar and PW1 identified the Crl.A. No.1685 of 2006 11 autorickshaw as his own autorickshaw. PW3 further deposed that the appellant/accused by raising knife towards them escaped from the place, where they detected the autorickshaw, and according to PW3, the accused 2 and 3 as well as the autorickshaw were taken to their custody and produced before the Police. PW6, the doctor, who examined PW1 issued Ext.P6 wound certificate wherein he had noted injuries sustained on the body of PW1. He had also deposed that he had noted certain abrasions different parts of the body of the accused also. The evidence of the injured, PW1 and the evidence of PW3 clearly established the identity of A1. Though PW3 had reached at the place of occurrence after the removal of the autorickshaw, he along with PW1 and other chased the autorickshaw and subsequently, they traced out the same at Erattayar junction and thereafter PW3 also identified the appellant/accused as the person who waived knife against PW1, PW3 and others. PW1 has also categorically deposed that it was the accused/appellant who hired the autorickshaw and it was he who put coir trap over his neck from his behind. Thus, the evidence of PW1, PW2 and PW3 and other attendant circumstances are sufficient to establish the identity of the accused and his role in the Crl.A. No.1685 of 2006 12 commission of offence. Therefore, the argument advanced by the learned counsel for the appellant regarding the identity of the accused are not sustainable and liable to be rejected. 12. Another point taken by the learned counsel is that the evidence are in sufficient to connect the appellant/accused with the incident. In this juncture, it is relevant to note that the trial court was forced to undertook two trial as the appellant was absconding. On the basis of the evidence adduced during the first trial the court below has found that the accused therein are guilty of the offence u/s.379 of IPC. During the trial of the present case, the same witness has deposed without any deviation from their earlier statement. As I indicated earlier, the identity of the accused, the appellant is clearly established by the evidence of PW1, the victim and PW3. Connected with the incident, PW1 and PW3 produced the accused Nos.2 and 3 and the autorickshaw before the Police Station immediately after the incident. The crime was registered on the basis of Ext.P1 FI Statement given by PW1, the injured based upon which PW7 registered Ext.P8 FIR. The investigation was undertaken by the Circle Inspector of Kattappana Police Station, who is examined as PW8 and he had prepared the scene mahazar and Crl.A. No.1685 of 2006 13 subsequently arrested the accused/appellant. It is also on evidence that PW6, the doctor examined as PW1, immediately after the incident and issued Ext.P6 wound certificate. Thus, the documentary evidence and the substantial evidence of PWs.3 and 4, according to me, are sufficient to prove the guilt of the accused/appellant and therefore, it cannot be said that the evidence adduced by the prosecution are insufficient. 13. In the light of the above facts and evidence and the forgone discussions, I am of the view that the trial court has fully justified and legal and correct in convicting the accused u/s.392 of IPC. Considering the criminal background of the appellant and the overt act of the appellant in the commission of the present crime, I find no reason to interfere with the sentence as well. In the result, the conviction and sentence imposed against the appellant is confirmed and the appeal is dismissed as devoid of any merit. V.K.MOHANAN, JUDGE pm