IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA WEDNESDAY, THE 2ND DAY OF FEBRUARY 2011/13TH MAGHA 1932 CRL.A.No. 1124 of 2002 ( ) -------------------------- AGAINST JUDGMENT IN SC.133/2002 of ADDL. SESSIONS JUDGE, FAST TRACK COURT-II(ADHOC), THRISSUR. APPELLANT(S)/ACCUSED:: --------------------- SURESH @ SHAJI, S/O. PARITHAPILLIVEETTIL VASUDEVAN PUTHENANGADI ALAPUZHA MUNICIPALITY ALAPUZHA DISTRICT, AMBALAPUZHA TALUK, NOW RESIDING AT HOUSE NO.360, KURINJI NAGAR, SUNDARAPURAM COIMBATORE DIST., TAMILNADU STATE. BY ADVS.SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S)/COMPLAINANT:: --------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. PUBLIC PROSECUTOR (SRI. P.A. SALIM) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02-02-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. Appeal No. 1124 of 2002 ----------------------------------------------- Dated this 2nd February, 2011. JUDGMENT This appeal arises from the conviction and sentence passed against the appellant under Section 398 of the Indian Penal Code ('IPC' for short) to undergo rigorous imprisonment for 7 years. 2. According to prosecution, on 9.2.2002 at about 9.15 p.m., during the power cut, PW1 was sitting in the veranda of her house near the door and candle was kept burning near her. While so, appellant suddenly came to PW1 and snatched the chain MO2 which was worn by her by force and it broke and fell down. She cried aloud while accused ran away towards the north. PW3, who is the son of PW1, along with another son ran behind the accused. 3. PW5, a neighbour also heard the cry and came running and, on seeing that appellant was running towards north, he also ran along with PW1's sons and others. The accused jumped over the northern compound wall in the neighbouring house to the temple compound where metal was heaped. PW4, who was sitting on the temple compound along with another, found a person jumping the southern wall of the temple. Accused fell on [Crl.Appeal No.1124/2002] 2 the metal heap and sustained injuries. He was caught from the temple compound. By the time, PW3 and others came there. The accused was caught and taken to the PW1's house. Police was called. 4. When the police came there appellant was handed over to PW7, who took the statement from PW1 and registered the F.I.R. Investigation was conducted and charge was laid against the appellant under Section 398 of IPC. The prosecution has also a case that appellant was having a knife in his hand and in order to commit theft the knife was used. 5. The prosecution examined PWs, 1 to 8 and marked Exts.P1 to P6 and MOs 1 and 2. On the defence side, DW1 and DW2 were examined and Ext.D1 was marked. The accused denied the allegations and took up a contention that this is a false case foisted against him because of the enmity of PW3, his brother and PW4. On the date of occurrence by about 7 p.m. there was an altercation between PW3, his brother, and also PW4 when the appellant was coming back after going to the toddy shop at about 9.30 p.m. He was surrounded by PW3 and PW4 and assaulted. He was also stabbed. He fell unconscious and the police came there when he was made to lie with the hands tied. [Crl.Appeal No.1124/2002] 3 He had explained the incident to the police and also the doctor. 6. On an analysis of the evidence on record, the trial court found that the offence made out is robbery and not an attempt to robbery. But, it was found that it was not fair to alter the section making the offence a graver one and convicted the accused under Section 398 of IPC and sentenced therein. 7. Heard both sides and perused the records. Learned counsel for the appellant submitted that PW1 had not stated anything about knife. The knife was not handed over to the police on the day when PW7 came to the spot. PW3 said that the knife was near the compound wall, but PW1 said that it was in the court yard. In such circumstances, conviction under Section 398 IPC is not sustainable. 8. It is also submitted that PW1 did not identify the appellant from the spot. PW3 also did not actually see the incident and in such circumstances, appellant could not have been convicted for any offence. As per the evidence, MO2 series were not taken from the possession of the appellant. It was not handed over to the police on the very same day, but only on the next day. In such circumstances, appellant's involvement in the offence is not established, it is argued. [Crl.Appeal No.1124/2002] 4 9. Learned Public Prosecutor fairly conceded that offence under Section 398 IPC will be involved in the light of the evidence adduced in this case. But, there is ample evidence to prove that to constitute offence of theft, it is not necessary that the stolen article must be in the possession of accused. On going through the evidence in detail and on consideration of the submissions made on behalf of the appellant, I am satisfied that offence under Section 398 IPC is not made out on the basis of the evidence on record. 10. According to Section 398 IPC, an attempt to commit robbery is an offence under the said Section, if at the time of attempting to commit robbery the offender is armed with any deadly weapon. PW1 has absolutely no case in her evidence that knife was used by appellant at the time of offence. She explained the manner in which appellant had snatched away the gold chain from her neck and in that way both the hands were used. It is clear from her evidence that there was no chance for the appellant to use the knife and her evidence will not disclose that appellant was armed with knife at the time of commission of offence. 11. Apart from the evidence of PW1, there is no other [Crl.Appeal No.1124/2002] 5 evidence to show that appellant was carrying a knife when he was running away. Nobody had seen him armed with any weapon and hence, offence under Section 398 IPC is not made out. However, the evidence of PW1 shows that appellant had come to her while she was sitting in the Veranda near the door and he deliberately snatched her chain from the neck and she sustained injury on the neck. There is no reason to disbelieve this plea, especially since the doctor PW2 has given evidence that on examination of PW1 at the hospital she was found to have scratch mark on the left neck 7x0.5 cm in size and this could be caused while snatching chain from the neck. 12. The allegation made by PW1 regarding snatching of chain from the neck is corroborated by the medical evidence which I do not find any reason to reject. Therefore, I am satisfied that an incident happened as alleged by PW1. However, learned counsel for appellant argued that PW1 did not identify accused at the time of offence. It is true that PW1 stated in clear and cogent terms that she could not identify the accused at the time of offence. But, it is in evidence that she cried out and the offender ran towards northern side and jumped over the wall of the neighbouring house. [Crl.Appeal No.1124/2002] 6 13. PWs.3 and 5 gave evidence that they, on hearing the cries, chased the accused, who was found running to the northern side. They also stated that he jumped over the wall to the southern compound of the temple. PW2 has given evidence that he found appellant jumping over the wall lying on the southern side of the temple and he fell on the metal heap. He and his friend caught hold of appellant and handed over to PW3, who is the son of PW1, and others, whom came running there. 14. On an analysis of the evidence of PWs. 1 to 3 and 5, I am satisfied that offender ran towards the northern side and he was caught by PW4 from the temple compound. The evidence of PW5 is clear on this aspect. There is absolutely nothing to disbelieve the evidence of PW5. Nothing is brought out from his evidence that he has any motive against appellant. He is a totally independent witness. He stated that he heard the cry from the house of PW1, who came running there ,when he saw PW3 and his brother running towards northern side and a person who was running towards north. He also stated that the said person jumped over the wall and PW4 caught hold of him and handed to others. 15. It is also in evidence that appellant was handed over to [Crl.Appeal No.1124/2002] 7 the police from the spot when PW7 came to the house of PW1 on getting information about apprehension of the appellant. Taking all these evidence into consideration, I am satisfied that there could be no chance of any mistake in catching appellant who had escaped from PW1's house after snatching away the chain from the neck of PW1. I am satisfied that the appellant was involved in the act spoken to by PW1.Therefore, the inability to identify appellant at the time of occurrence is not sufficient to hold that appellant is not involved in the offence. 16. A reading of the definition of 'theft' in Section 378 IPC shows that a person can be said to commit theft if he intended to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking. In this case, evidence shows that he had moved the stolen article MO2 from the neck of PW1 without her consent and in order to take that article he had moved the property and intended to take such property dishonestly from the possession of PW1. Therefore, the acts committed by appellant constitute offence under Section 379 of IPC. 17. Regarding sentence, learned counsel for appellant [Crl.Appeal No.1124/2002] 8 submitted that appellant is a first offender. No previous conviction is proved in this case. Appellant is not involved in any other case. Prosecution has no case that he was involved in any other case previously. It can also be seen from the evidence of PW2 that appellant was working as a coolie. Appellant, while questioned regarding the sentence, stated that he has two children and residing in a rented house and if he is sent to jail there will be nobody to look after the family. 18. Learned counsel for appellant submitted that instead of sentencing the appellant under Section 379 IPC, he may be released applying Section 3 of the Probation of Offenders Act. On hearing both sides and taking into consideration of various aspects pointed out, I am satisfied that the request can be considered. A reading of Section 3 and 4 of the Probation of Offenders Act shows that before passing an order, the court shall take into consideration the report of the Probation Officer concerned in respect of each case. 19. In such circumstances, the case can be remanded to trial court for fresh consideration regarding sentence, in accordance with law. It is made clear that the trial court shall consider the possibility of applying Section 3 or 4 of Probation of [Crl.Appeal No.1124/2002] 9 Offenders Act as requested and dispose of the case in accordance with law. In the result, the following order is passed: 1) The conviction passed against the appellant under Section 398 of IPC is set aside. Appellant is found guilty of offence under Section 379 IPC and he is convicted thereunder. 2) The case is remanded to the trial court for passing appropriate sentence in the light of the observations made in this judgment. 3) The trial court shall consider whether provisions of Probation of Offenders Act can be applied, as requested and dispose of the case, in accordance with law. 4) The appellant shall appear before the trial court on receipt of notice to counsel appearing on both sides from the lower court. Petition is allowed. Sd/- K. HEMA, JUDGE. krs.