IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931 CRL.A.No. 1122 of 2002() ------------------------ SC.160/1999 of ADDL.SESSIONS COURT (ADHOC)-II, KOTTAYAM .................... APPELLANT(S): ACCUSED NOS 2 TO 5. --------------------------------------------------------------- 1. PRAKASH @ MOTTA PRAKASH, S/O.KUNJOONJU, PATTIMATTOM VEEDU, PATTIMATTOM COLONY, NEAR POONTHARAKKAVU TEMPLE, AYMANANM. 2. SAJIMON @ SAJAN, S/O.KUNJOONJU, MULAKUMATTOM VEEDU, NEAR LATIN CHURCH, PULLARIKUNNU BHAGAM, PERUMPADIKKADU VILLAGE. 3. BIJU PONNAPPAN @ BABU, S/O.PONNAPPAN, MULAKUMATTOM VEEDU, MULAKUMATTOM COLONY, PULLAIRKUNNU BHAGAM, MALLUSSERY KARA, PERUMPAIKKADU VILLAGE. 4. JOBY P.THANKACHAN @ JOBY S/O.THANKACHAN, UTHIKKADU VEEDU, S.H.MOUNT BAGAAM, NATTASSERY, PERUMPAIKKADU VILLAGE. BY ADV. SRI.A.MOHAMMED SRI.M.SAJJAD SRI.M.MUHAMMED SHAFI SRI.V.Y.JOSEPH RESPONDENT(S): COMPLAINANT. -------------------------------------------------------- STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.K.PUSPHALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/10/2009, ALONG WITH CRA NO. 1111 OF 2002 & CRA NO. 1130 OF 2002 THE COURT ON 22/10/2009 DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.Appeal.Nos.1111,1122 & 1130 of 2002 = = = = = = = = = = = = = = Dated this the 22 nd day of October, 2009 JUDGMENT The appellant in Crl.Appeal No.111 of 2002 is the 6th accused in S.C.No.160 of 1999 on the file of the Additional District and Sessions Court(Fast Track) Adhoc -II, Kottayam. The appellants in Criminal Appeal No.1122 of 2002 are accused Nos.2 to 5 and the appellant in Criminal Appeal No.1130 of 2002 is the 1st accused in the above case. They challenge the conviction entered and the sentence passed against them for an offence punishable under Section 395 IPC. 2. The case of the prosecution can be summarised as follows:- The six accused persons in furtherance of their common intention to commit robbery after causing death or grievous hurt to PW1(Sudhakaran) stopped Crl. Appeal No.1122 of 2002 2 the auto rickshaw bearing Registration No.KL5-B 5884 in which they were travelling along the Nagampadam private bus-stand-railway station road, at Panayakazhuppukara, Muttampalam village. PW1 was walking along the said road from west to east in front of the Co-operative Union building, Kottayam Circle at 1.15 am on 5.11.1997. After pulling up the auto rickshaw in front of PW1, A1 to A6 got down from the auto rickshaw and A2 and A4 to A6 voluntarily caused hurt to PW1 by beating and fisting them with hands and A3 hitting PW1 on his chin with an iron piece causing a bleeding injury, A1 snatched the purse from the pocket of PW1 and committed theft of Rs.2,800/- and also snatched the wrist watch, identity card, and gold ring worn by PW1 by force. The accused have thereby committed an offence punishable under Section 397 IPC. 3.On the accused pleading not guilty to the charge framed against them by the court below for offences punishable under Section 395 read with 397 IPC, the Crl. Appeal No.1122 of 2002 3 prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 12 witnesses as P.Ws 1 to 12 and got marked 8 documents as Exts. P1 to P8 and 3 material objects as MOs. 1 to 3. 4. After the close of the prosecution evidence, the accused 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. 5. As this was not a case of no evidence for the prosecution, the court below did not record an order of acquittal of the accused under Section 232 Cr.P.C. The accused did not adduce any defence evidence when called upon to enter on their defence and adduce any evidence. 6. The Addl. Sessions Judge, after trial, as per judgment dated 28.11.2002 found the appellants guilty of the offence punishable under Sections 395 I.P.C. and for Crl. Appeal No.1122 of 2002 4 the said conviction each of the accused were sentenced to rigorous imprisonment for 4 years and to pay a fine of Rs.1,000/- and on default to pay the fine to suffer simple imprisonment for 60 days. The fine amount as and when realised was directed to be paid to PW1, the injured as compensation under Section 357(1)(b) Cr.P.C. It is the said judgment which is assailed in this appeal. 7. The only point which arises for consideration in these appeals is as to whether the conviction entered and the sentence passed against the appellants are sustainable or not. The Point:- 8. PW1(Sudhakaran) is the injured/1st informant. The main part of the testimony of PW1 is as follows:- During the year 1997, he was working as a watcher in the office of the Water Authority at Kottayam. He was at that time residing in the quarters at Thuruthelpalam. On 4.11.1997 from 8 a.m.to 4 p.m PW1 was on duty in his office. After his duty time at Crl. Appeal No.1122 of 2002 5 about 5.30 p.m he paid a visit to the house of his colleague one Baby George who was residing at Ammancherry. After the visit he returned from the house of his colleague at 11 p.m. At about 12 midnight he reached in front of one Gomathy Petrol Bunk situated by the side of Sasthri Road. He waited there for some time expecting some auto rickshaw to come that way. But no auto rickshaw came and therefore he started walking along the Kurianuthuppu Road (that road is also called Railway Station road) When he reached in front of the Co-operative Union Office, an auto rickshaw bearing Registration No.KL5B/5884 came and stopped near him. Suddenly A1 to A6 who were inside the auto rickshaw came out and started beating and fisting him. A4 fisted him with an iron piece on his chin. A1 snatched his gold ring and purse which was containing 16 Nos.of 50 rupee notes and 20 Nos.of 100 rupee notes, altogether Rs.2,800/- and his wrist watch. He clearly saw all the accused persons in the street light. After assaulting him and robbing him Crl. Appeal No.1122 of 2002 6 of his personal belongings, the youngsters decamped in the very same auto rickshaw. PW1 slowly walked along the road towards the Railway Station. He reached a fast food stall (Thattu Kada) of PW2 and had a cup of coffee. He described his bitter experience to those who were in the fast food shop. He then went to the Medical College Hospital, Kottayam in an auto rickshaw. The Doctor examined him and admitted him. He was in the hospital for three days. On 5.11.1997 he gave Ext.P1 First Information Statement to the Police from the said hospital. He had subsequently identified all the six accused persons from the Police Station. He had also recognised his personal belongings such as wrist watch, gold ring, currency notes etc. from the Police Station. MO1 is his wrist watch, MO2 is his gold ring. MO3 series are the currency notes totalling to Rs.1120/-. MO1 and MO3 series were shown to him on 8.11.1997 and MO2 gold ring was shown to him on 19.11.1997. It is not true to say that he sustained injuries as a result of picking up quarrels with others and falling down or Crl. Appeal No.1122 of 2002 7 that he was fully drunk at that time as suggested. 9. PW2(Asokan) is the person who runs a fast food bunk shop on the western side of the Railway Station, Kottayam. He deposed that PW1 had come to his shop after 1 a.m in the night of 4.11.1997 and had taken a cup of coffee from his shop and at that time PW1 was having a bleeding injury on his chin. PW2 also stated that there was sufficient light of street light on the Railway Station Road. After having the coffee, PW1 had proceeded towards the Railway Station . 10. PW3(Sadasivan) is an attestor to Ext.P2 Scene Mahazar. Eventhough he admitted his signature in Ext.P2 he deposed that he did not see the preparation of Ext.P2 Scene Mahazar. 11. PW4(Mammen Joseph) is an attestor to Ext.P3 (Mahazar) as per which the auto rickshaw in which A1 to A6 came to the spot was seized. He also deposed that he did not witness the preparation of the Seizure Mahazar. Crl. Appeal No.1122 of 2002 8 12. PW5 (Raju) is an attestor to Ext.P4 Mahazar as per which MO1 wrist watch was seized on 8.11.1997. 13. PW6 (Venugopal) is a goldsmith who had assayed MO2 gold ring on 19.11.1997 and is a signatory to Ext.P5 Mahazar as per which the said gold ring was seized by the Police. 14. PW7 (Mohanan) was the Head Constable of Kottayam East Police Station. On 5.11.1997 as per the directions of the Sub Inspector of Police, he had been to the Medical College Hospital at 11.30 a.m and recorded Ext.P1 statement of PW1. 15. PW8 (K.N.Muraleedharan) who was the Assistant Sub Inspector of Police of Kottayam East Police Station went in search of accused Nos.1 to 5, as per the oral direction of the Circle Inspector of Police and arrested A4 and A5 on 7.11.1997, at about 1 'o' clock in the night and had produced A4 and A5 before the Circle Inspector of Police. Crl. Appeal No.1122 of 2002 9 16. PW9 (N.Ramachandran) who was the Circle Inspector of Police, Kottayam East Police Station conducted the investigation of this case. He visited the scene of the crime at 4.30.p.m on 5.11.1997 and prepared Ext.P2 Scene Mahazar. He recorded the statements of witnesses. He arrested A6 at 10a.m.on 7.11.1997 from Good Shepherd Road, Nagampadam. At that time A6 was driving the auto rickshaw bearing Registration No.KL5-B 5884. After recoding his statement, he seized the auto rickshaw as per Ext.P3 Mahazar. The driving licence of A6, an iron block used for the commission of the crime etc. were seized. He arrested A1 to A3 from the road in front of Thampanoor Railway Station at 3 p.m. on 7.11.1997. At 3.10 p.m., PW9 seized MO3 series of currency notes from A1 as per Ext.P6 Mahazar. A1 had given a confession to PW9 to the effect that he had concealed the wrist watch in a house and he would point out the same if he is taken there. Accordingly, A1 led the police party headed by PW9 to Nedukalayil house Crl. Appeal No.1122 of 2002 10 bearing building No.32 in Ward No.VIII of Aimanam Panchayat and took out MO1 wrist watch from underneath the cot and handed over to PW9 who seized the same as per Ext.P4 Seizure Mahazar at 8 a.m on 9.11.1997. PW8 who had arrested A4 and A5 produced them before PW9. 17. PW10(Purushothaman) was the Manager of a toddy shop in the year 1997. He confessed his signature in Ext.P6( Mahazar) as per which currency notes were seized from A1 at 10 p.m. on 7.11.1997. 18. PW11(James Joseph) was the Circle Inspector of Police who registered Ext.P7 First Information Report on the basis of Ext.P7 First Information Statement. After getting police custody of A1, he questioned A1 who revealed the sale of MO2 gold ring to a person. Accordingly, A1 lead the police party headed by PW11 to one Animon @ Ani (PW12) in the Municipal vegetable market, Kottayam and seized MO2 gold ring as per Ext.P5 Mahazar. 19. PW12(Animon @ Ani) who is employed in the Crl. Appeal No.1122 of 2002 11 Municipal Vegetable Market at Kottayam is the person to whom A1 had allegedly sold MO2 gold ring which was later seized by the Police as per Ext.P5 Mahazar. PW12 did not support the prosecution. 20. PW1 has credibly deposed in terms of the prosecution case. He had no difficulty to identify all the accused persons, particularly A4, who had inflicted a bleeding injury on his chin. Ext.P8 wound certificate issued by Dr.Antony, Lecturer in Surgery, Medical College Hospital, Kottayam shows that he examined PW1 at 2.45 am on 5.11.1997 with an allegation that PW1 was assaulted by some persons at Nagampadam near Railway Station at 1.30.am at 5.11.1997 and at that time PW1 had a lacerated wound on the left side of his chin. It was not even suggested to PW1 or the Investigating Officer that PW1 did not have any previous acquaintance with any of these accused persons. The presence of light mentioned by PW1 as well as PW2 was also not challenged in cross- Crl. Appeal No.1122 of 2002 12 examination by the accused persons. The testimony of PW1 gains corroboration from the deposition of PW2 who conducts a mobile fast food shop. The identification of all the accused persons by PW1 does not suffer from any infirmity. There was sufficient opportunity for PW1 to interact with the assailants and notice their identifying features. The recovery of MO1 wrist watch, MO2 gold ring and MO3 packet containing the unspent money out of Rs.2,800/- at the instance of A1 clearly falls under Section 27 of the Evidence Act and PW1 has unhesitatingly recognised those MOs as his personal properties which were robbed by the six accused persons , including the appellants. The Trial Judge who had the unique advantage of seeing the witnesses and assessing their credibility had no difficulty in accepting the credible testimony of the prosecution witnesses, particularly PWs.1 and 2. This Court sitting in appeal will be loathe to interfere with such conclusion reached by the Trial Judge. The conviction Crl. Appeal No.1122 of 2002 13 entered against the appellants is accordingly confirmed. The sentence imposed on the appellants also is commensurate with the gravity of the offence. The facts of the case show that during the untimely hour of night the six accused persons had approached PW1 who was walking alone and PW1 was assaulted and his personal belongings robbed. Hence the sentence imposed on the appellants cannot be said to be harsh or disproportionately excessive. Penal servitude by way of incarceration as awarded by the trial court alone will act as an effective disincentive to the appellants. I, therefore, confirm the sentence imposed on the appellants as well. In the result, these appeals are dismissed confirming the conviction entered and the sentence passed against the appellants. Dated this the 22nd day of October, 2009. V. RAMKUMAR, JUDGE sj