IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 15TH FEBRUARY 2010 / 26TH MAGHA 1931 Crl.Rev.Pet.No. 242 of 2010() ----------------------------- CRA.676/2008 of ADDL. SESSIONS COURT (ADHOC), KOZHIKODE SC.1309/2006 of II ADDL.ASSISTANT SESSIONS COURT, KOZHIKODE .................... REVN. PETITIONER(S): APPLICANT. ------------------------------- ANISH BABU, S/O.VOKKAN, C.NO.5378, CENTRAL PRISON, KANNUR. BY ADV. SRI.SAKIR.K.H.(STATE BRIEF) RESPONDENT(S): --------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.R.P. No. 242 of 2010 * * * * * * * * * * * * * * * * * * Dated: 15-2-2010 ORDER In this Revision filed by Aneesh Babu, the 3rd accused in S.C. No. 1309 of 2006 on the file of the Addl. District and Sessions Judge, Fast Track (Adhoc-I), Kozhikode , he challenges the conviction entered and the sentence passed against him for offences punishable under Sections 392 and 397 read with Sec. 34 I.P.C. 2. This revision has been filed from the Central Prison, Kannur. I heard Adv. Sri. Sakir K.H., the learned counsel appearing for the revision petitioner and the learned Public Prosecutor. 3. The prosecution case as unravelled by the oral and documentary evidence is as follows:- P.W.1 (Jubair) who is the de facto complainant is a native of Crl.R.P. No. 242 of 2010 -:2:- Cherthala in Alappuzha District. He was studying for B.Com in Irshadiya College, Feroke at the time of occurrence. He had boarded Ernakulam - Puna Express and reached Feroke Railway Station at 3.50 a.m. on 4-5-2004 . When the train stopped at Feroke Railway Station he got down on platform No. 2 and walked towards the foot over bridge so as to reach platform No. 1. While he was on the southern side of the foot over bridge, four persons including the revision petitioner approached him and stopped him. He was threatened by the revision petitioner brandishing MO1 knife at him and they robbed him of cash worth Rs. 2020/- from the pockets of his shirt and pants at gunpoint. The revision petitioner was the person who took the money from him. When P.W.1 screamed aloud for help people including an auto driver (P.W.3) came running. Thereupon the offenders hurriedly made good their escape. Eventhough those who came running as well as the passengers searched for the robbers, the Crl.R.P. No. 242 of 2010 -:3:- same was in vein. At 7.15 a.m. P.W.1 lodged a complaint before the Feroke Police Station and the same was registered as Crime No. 123 of 2004. During the course of investigation, A1 to A3 were arrested on 27-5-2004, 28-5-2004 and 28-5-2004 respectively. At the time of the arrest of A1 he was having MO1 knife kept concealed inside the socks which he was wearing. It was P.W.6 who was the Sub Inspector of Police who arrested A1. A2 and A3 were arrested by P.W.7. 4. Both the courts have accepted the testimony of P.W.1 the victim to hold that four accused persons including the revision petitioner had surrounded him while on the railway platform and had robbed him of his money and that it was the revision petitioner who brandished a knife and put him under fear of death and extorted the money. Hence, the conviction under Section 392 I.P.C. is clearly made out. But the conviction under under Section 397 I.P.C. against the revision petitioner cannot be sustained. Crl.R.P. No. 242 of 2010 -:4:- Except the testimony of P.W.1 to the effect that the revision petitioner brandished a knife, identified by him as MO1 no knife was recovered at the instance of the revision petitioner. MO1 knife was seized from the first accused who was allegedly hiding the same inside the socks worn by him. If MO1 was the knife allegedly brandished by the revision petitioner there is no explanation as to how the weapon was made available to A1 from whom MO1 was seized by P.W.6 at the time of his body search. The offence under Section 397 I.P.C. will be attracted only if at the time of committing robbery, the offender inter alia uses any deadly weapon. When the weapon allegedly brandished by the revision petitioner has not been recovered and the weapon recovered is from the possession of A1 who even according to P.W1, was not wielding any weapon, the conviction of the revision petitioner for the offence punishable under Section 379 cannot be sustained. He is found not guilty of the offence under Crl.R.P. No. 242 of 2010 -:5:- Section 379 I.P.C. and is acquitted of the same. 5. In the result, this Revision Petition is allowed in part acquitting the revision petitioner of the offence punishable under Section 397 I.P.C. but confirming the conviction under Sec. 392 I.P.C. In case he has served out the substantive sentence as well as the period of default sentence, he shall be released from custody forthwith unless his continued detention is found necessary in connection with any other case against him. The Registry shall communicate this order to the Superintendent, Central Prison, Kannur. Dated this the 15th day of February, 2010. Sd/- V. RAMKUMAR, (JUDGE) /true copy/ Crl.R.P. No. 242 of 2010 -:6:- V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.R.P. No. 242 of 2010 * * * * * * * * * * * * * * * * * * Dated: 15-2-2010 GIST OF THE ORDER ani.