IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 24TH NOVEMBER 2009 / 3RD AGRAHAYANA 1931 CRL.A.No. 57 of 2008() ---------------------- SC.610/2005 of SESSIONS COURT, KASARAGOD CP.135/2005 of JUDL. MAGISTRATE OF FIRST CLASS, KASARAGOD .................... APPELLANTS/ ACCUSED NO. 3 AND 5:- ------------------------------------------- 1. VEERENDRA SHETTY, AGED 32 YEARS S/O. ANANDA MAGLA, KOLIYOOR,MANGALAPURAM. 2. ROSHAN @ ROSHAN KUTEENO AGED 25 YEARS,S/O. RIMAND KUTEENO, PADIGUDDE HOUSE, RANIPURAM, ASELAMUGURU VILLAGE MANGALAPURAM. BY ADV. MR. T.K.VIPINDAS RESPONDENT/COMPLAINANT:- --------------------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM REPRESENTING THE C.I.OF POLICE KUMBLA. ADV. MR. C.M. NAZER, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A. NO. 57/2008 : 2 : ORDER ON CRL.M.A. NO. 194/2008 IN CRL.A. NO. 57/2008 DISMISSED 24.11.2009 sd/- V. RAMKUMAR, JUDGE. V. RAMKUMAR , J. ------------------------------------------------------------- Crl. A. No. 57 of 2008 ------------------------------------------------------------ Dated this the 24th day of November, 2009. JUDGMENT In this appeal filed under Section 374(2) Cr.P.C., accused Nos. 3 and 4 (Veerendra Shetty and Roshan @ Roshan Kuteeno) in S.C. No. 610 of 2005 on the file of the Sessions Court, Kasaragod challenge the conviction entered and the sentence passed against them for offences punishable under Sections 452 and 398 IPC. 2. The case of the prosecution as unravelled by the oral and documentary evidence in the case is the following:- PW1, Dr. K.A. Khader who resides at Kunjathur village in Kasaragod Taluk, is a doctor by profession. He is having private practice in a clinic attached to his house. PW1 is residing along with his wife and son, PW2 (Shajahan) and workers in the said house. The occurrence in this case took place at 3.45 a.m., on 13.09.2004. Hearing the calling bell at the odd hours of 3.45 a.m., he switched on the light and Crl. Appeal No. 57 of 2008 : 2 : got up from his bed. He found A1 standing outside the gate and crying aloud saying that he was having stomach ache and wanted urgent treatment. PW1 then called his servant Manikandan and asked him to bring the patient inside. There were four other persons in the company of A1. All of them came inside the gate. A1 was then taken to the consultation room. A2 also accompanied him. The other three persons including the appellants stood outside the consultation room. PW1 examined A1 and gave him medicine. A1 asked for some water. PW1 asked Manikandan to fetch water and soon water was brought. A1 who was lying on the consultation table, got up and drunk the water. At that time, the three persons who were standing outside, attempted to come inside the room. Suddenly, A1 and A2 held MO1 bathing towel against the neck of PW1. PW1 raised a hue and cry. At that time, the three intruders who were standing outside the room, showed a knife and demanded gold and money. They Crl. Appeal No. 57 of 2008 : 3 : threatened to kill him in case he did not accede to their demand. MO1 was the bathing towel which was put around the neck of PW1. MO2 is the knife which was shown to him. Hearing the commotion, PW1's wife, son and others came running. Seeing the precarious condition in which PW1 was placed, his wife and son promised the intruders that they would give the money. Suddenly, PW1 somehow extricated himself from the clutches of the assailants and he took refuge in his bed room. From there PW1 informed the police through the telephone. His worker Manikandan had also somehow escaped. Sensing danger, the intruders thereupon made good their escape and sped away in the vehicle. They had come to commit robbery of the gold and money belonging to PW1. The assailants were talking in Thulu and Malayalam. Ext.P1 is the First Information Statement given by PW1 to the Manjeswar police. 3. This, in short, is the occurrence as deposed by PW1 and substantially corroborated by PW2. Crl. Appeal No. 57 of 2008 : 4 : 4. The intruders had gained entry into the clinic of PW1 feigning that A1 was having stomach pain necessitating immediate treatment. From the conversation which took place thereafter, it is clear that the purpose of their visit was to commit dacoity. Hence the act of their gaining entry into the clinic of PW1 clearly amounts to criminal trespass punishable under Section 452 IPC. But the offence punishable under Section 398 IPC will be attracted only if at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon. The evidence in this case does not show that MO1 bathing towel was held around the neck of PW1 with a view to strangulating him to death. The main purpose of putting the towel around the neck of PW1 was to dissuade him from attempting to escape. Hence, it cannot be said that A1 and A2 who were using MO1 bathing towel, were armed with deadly weapons so as to attract Section 398 IPC. But the evidence clearly shows that there were five persons, Crl. Appeal No. 57 of 2008 : 5 : including the appellants, and they attempted to commit robbery from the house of PW1 within the meaning of Section 397 IPC. It is enough that the persons present at the spot makes an attempt to commit robbery so as to attract the offence of dacoity punishable under Section 395 IPC and as defined under Section 391 IPC. It is true that there is no evidence to show as to who among the three persons who stood outside the clinic, was holding MO2 knife. But from the conduct of the three persons standing outside the clinic, it is clear that they were aiding A1 and A2 who were inside the clinic, in their attempt to commit robbery. It is not necessary that the attempt to commit robbery should materialise so as to attract the offence of dacoity. Hence, even though I am of the view that the offence punishable under Section 398 IPC is not attracted, I am definitely of the view that the appellants along with A1 and A2 and the absconding accused committed the offence of dacoity punishable under Section 395 IPC. Accordingly, Crl. Appeal No. 57 of 2008 : 6 : the conviction and sentence of the appellants under Section 452 IPC are hereby confirmed. The conviction and sentence imposed on the appellants under Section 398 IPC are set aside and instead, they are each convicted under Section 395 IPC. For the said conviction, each of them is sentenced to rigorous imprisonment for five years. The sentence imposed on the appellants under Section 452 IPC is not interfered with. The sentence of imprisonment awarded under Section 395 IPC shall run concurrently with the sentence imposed under Section 452 IPC. The appellants shall be released from custody on each of them serving the sentence imposed as above unless their continued detention is found necessary in connection with any other case against them. This appeal is disposed of as above. Afflict Dated this the 24th day of November, 2009. V. RAMKUMAR, JUDGE. rv Crl. Appeal No. 57 of 2008 : 7 :