IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 12TH OCTOBER 2009 / 20TH ASWINA 1931 CRL.A.No. 671 of 2009(D) ------------------------ SC.183/2007 of ADDL.SESSIONS COURT (ADHOC), KOTTAYAM CP.38/2007 of JUDL. MAGISTRATE OF FIRST CLASS, CHANGANASSERY .................... APPELLANT(S): PETITIONERS/APPELLANTS ---------------------------------------------------------------------- 1. VIJAYAN, S/O.GANESAN, C.NO.2969, CENTRAL PRISON, THIRUVANANTHAPURAM. 2. ARAVINDH, S/O.VEERAPPAN, C.NO.2970, CENTRAL PRISON, THIRUVANANTHAPURAM. BY ADV. ADV.SAINU.B[STATE BRIEF] RESPONDENT(S): RESPONDENT ----------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.Appeal.No.671 of 2009 = = = = = = = = = = = = = = Dated this the 12th day of October, 2009 JUDGMENT The appellants who were accused Nos.1 and 2 in S.C.No.183 of 2007 on the file of the Additional Sessions Court I, Kottayam, challenges the conviction entered and the sentence passed against them for an offence punishable under Sections 450,395 and 461 IPC. This appeal has been preferred from the Central Prison, Thiruvananthapuram where the appellants are undergoing the sentence of imprisonment. 2. The case of the prosecution can be summarised as follows:- The five accused persons including the appellants (A1 and A2) trespassed into the house of PW1, the de facto complainant at Changanassery. After breaking open the kitchen door they entered the bed room. A1 had a Crl. Appeal No.671 of 2009 2 chopper in his hand. A1 threatened the de facto complainant (PW1) and his wife(CW2) and snatched a gold chain weighing 5 sovereigns from the neck of CW2 (the wife of PW1). A2 with a screw driver opened the almirah inside the bed room and committed theft of cash worth Rs.1500/- from the purse of PW1 and one gold chain weighing 6 gms and one bracelet weighing 3.70 gms kept in a jewel box and also cash worth Rs.1000/- kept in a small pot and a Nokia mobile phone, altogether worth Rs.43,775/-. The accused have thereby committed offences punishable under Sections 450,395 and 461 IPC. 3. The appellants who are accused Nos.1 and 2 alone stood trial before the court below and the other accused were absconding. 4. On the appellants pleading not guilty to the charge framed against them by the court below for the aforementioned offences, the prosecution was permitted to Crl. Appeal No.671 of 2009 3 adduce evidence in support of its case. The prosecution altogether examined 10 witnesses as P.Ws 1 to 10 and got marked 5 documents as Exts.P1 to P5 and two documents through witnesses as Ext.X1 and XI(a). The prosecution also got marked 4 material objects as MOs.1 to 4. 5. After the close of the prosecution evidence, the appellants were questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their innocence. The appellants did not adduce any defence evidence when called upon to enter on their defence. 6. The learned Additional Sessions Judge, after trial, as per judgment dated 04.06.2008 found both the appellants guilty of the offences charged against them. For the conviction under Section 395 IPC, each of the appellants was sentenced to rigorous imprisonment for four years and to pay a fine of Rs.5000/- and on default to pay the fine to suffer rigorous imprisonment for six months. For Crl. Appeal No.671 of 2009 4 the conviction under Section 450 IPC each of the appellants was sentenced to rigorous imprisonment for 4 years and to pay a fine of Rs.5,000/- and on default to pay the fine to suffer rigorous imprisonment for six months. For the conviction under Section 461 IPC each of the appellants was sentenced to rigorous imprisonment for one year. The substantive sentences were directed to run concurrently. It is the said judgment which is assailed in this appeal. 7. I heard Advocate Smt.Sainu, the learned counsel appearing for the appellant on State Brief as well as the learned public prosecutor. 8. PW1(Navas) is the de facto complainant. His wife (CW2) was not examined. PW1 had deposed in terms of the prosecution case. He has also identified MO1 (Chopper) allegedly held by A1 and MO2 (Screw driver) allegedly held by A2. PW1 identified MO3 (gold chain) and MO4 (gold bracelet), out of the various items of properties stolen from his house. According to PW1 all the five accused persons who entered his house were wearing masks. He also Crl. Appeal No.671 of 2009 5 identified A2 who allegedly used the screw driver for opening the almirah inside the bedroom. 9. PW2(Babu) was an attestor to Ext.P2 Seizure Mahazar as per which MO1(chopper) and MO2(screw driver) were seized by the police. He runs a tube vulcanising shop at Kumarakom and is a neighbour of A3 (Rajesh) who is allegedly a scrap merchant at Kumarakom. 10. PW3 (Mohammed Rafe) is an attestor to Ext.P3 Scene Mahazar prepared by the Investigating Officer. 11. PW4 (Shameer) is an attestor to Ext.P4, Seizure Mahazar pertaining to MO3 (gold chain) and MO4 (gold bracelet) seized under Ext.P4,seizure mahazar on the strength of Ext.P4(a) confession made by A3 (Rajesh) who is absconding. 12. PW5(Babu) is a witness to Ext.P2, Seizure mahazar regarding MOs.1 and 2. Eventhough he identified MOs.1& 2 and the seizure of those weapons as per the said mahazar and also admitted his signature in Ext.P2 (mahazar), he turned hostile to the prosecution by deposing Crl. Appeal No.671 of 2009 6 that he did not see the accused persons at the time of seizure. 13. PW6 (K.A.Soman) was the Manager of SKM Bankers. According to him A3 (Rajesh) had pledged MO3 and 4 with him. 14. PW7 (Ullas) who was the Sub Inspector of Police, Changanassery recorded Ext.P1(F.I.Statement) given by PW1 and registered Ext.P1(a) (First Information Report). 15. PW8 (Saju Varghese) was the Sub Inspector of Police, Kumarakom who arrested A1 and A2 on 10.8.2006 and recorded Ext.P2(a) confession by A1 and effected recovery of MO1 and MO2 from the scrap shop of Rajesh ( A3) at Kumarakam as per Ext.P2 Seizure Mahazar. He also registered Ext.P5 First Information Report. 16. In the case of the 1st accused there cannot be any difficulty in identifying him as the one among the offenders because there is Ext.P2(a) confession made by him to PW8 while he was in custody soon after his arrest on 10.8.2006 The said confession was to the effect that the chopper and Crl. Appeal No.671 of 2009 7 the screw driver have been given to Rajesh (A3) at Kumarakom. Pursuant to the said confession by A1 led PW8 to the scrap shop of Rajesh (absconding A3) and took MO1 and MO2 from a gunny bag and those weapons were seized by PW8 under Ext.P2 (Seizure Mahazar) to which PW2 is an attestor. But in the case of A2 there is no recovery at his instance and the only evidence to connect him with the occurrence is the alleged identification by PW1. It must be remembered that the First Information Statement of PW1 was that all the five accused persons were wearing masks. But in his deposition he would say that A2 was there with a screw driver in his hand. PW1 claims to have identified A2 when the time was only 2.30 a.m and that too in the light of a '0 watt' night lamp. Admittedly, PW1 had no previous acquaintance with A2. There is no dispute that the police did not conduct any T.I.parade. If so, the dock identification of A2 by PW1 on 21.5.2008 which was nearly 2 years after the occurrence is absolutely valueless. (See Kanan v. State of Kerala (AIR 1979 SC 1127) Crl. Appeal No.671 of 2009 8 17. In the case of A1 as mentioned earlier, apart from the identification by PW1 at the odd hour of night, which is a very weak evidence, there is also recovery of MOs.1and 2 at the instance of A1. MO1 was the weapon wielded by A1 at the time of occurrence keeping PW1 under fear of death. A1 is admittedly involved in other offences in several cases also. 18. MOs.3 and 4 were recovered not at the instance of A1 or A2 but were recovered at the instance of A3(Rajesh) who is absconding. It was the said Rajesh who had allegedly pledged MOs.3 and 4 with PW6 (the Manager of SKM Bankers). 19. The court below was justified in holding that the prosecution witnesses have connected A1 with the occurrence. But then, the conviction of A1 under Section 395 Cr.P.C is unsustainable because what PW8 the Investigating Officer had deposed before court is that as per the confession there were only four culprits behind the occurrence. Since the number of accused persons falls Crl. Appeal No.671 of 2009 9 short of 5 there cannot be any decoity so as to attract Section 395 IPC. Hence, the offence which is made out against the 1st accused is only one punishable under Section 392 IPC. 20. In the light of the foregoing discussion, A2, against whom there is no satisfactory evidence adduced to show his involvement in the occurrence is entitled to be acquitted. A2(Aravindh @ Nagaraja S/o.Veerappan) is accordingly found not guilty of the offences punishable under Sections 450,395 and 461 IPC and is acquitted of the said offences. He shall be set at liberty and released from custody forthwith, unless his continued detention is found necessary in connection with any other case against him. 20. In the case of A1, the conviction under Section 395 IPC is unsustainable and he is acquitted of the said offence . But the evidence which is made out against him is one punishable under Section 392 IPC which is a cognate and lesser offence for which he can be convicted even without a charge. Hence, he is convicted under Section 392 IPC. He Crl. Appeal No.671 of 2009 10 has already undergone 3 years and 46 days of imprisonment. I am of the view that imprisonment already undergone by A1 will suffice for his conviction under Section 392 IPC. The conviction and sentence imposed on A1 for the offences punishable under Sections 450 and 461 IPC are not interfered with and are confirmed. In the result this appeal is partly allowed acquitting the 2nd accused and altering the conviction and sentence of A1 as indicated above. Dated this the 12 th day of October, 2009. V. RAMKUMAR, JUDGE sj