IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA FRIDAY, THE 1ST DAY OF OCTOBER 2010/10TH BHDARA 1932 CRL.A.No. 1403 of 2009 ( ) -------------------------- SC.110/2006 of ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR APPELLANT(S)/ACCUSED:: --------------------- FRANCIS @ FRANCHI, S/O.YACOB, PONTHEKKAN HOUSE, CHIYYARAM, THRISSUR. BY ADVS.SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT/RESPONDENT:: ----------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. PUBLIC PROSECUTOR SRI. K.S SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-10-2010, ALONG WITH CRA. 1424/2009, CRA. 1425/2009 &, CRA. 1854/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. HEMA, J ---------------------------------- Crl.Appeal.Nos.1403, 1424, 1425 and 1854 of 2009 ---------------------------------- Dated this the 1st day of October, 2010 J U D G M E N T A charge sheet was laid by the police against 10 persons alleging offences under Sections 395, 397 and 412 of Indian Penal Code ('IPC' for short). The Additional Sessions Court convicted accused nos.1 to 5 and sentenced them to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/- each under Section 395 IPC. In default of payment of fine, they were sentenced to undergo simple imprisonment for a further period of six months. Fine amount if realised, was ordered to be given to victim as compensation. They were also sentenced to undergo rigorous imprisonment for seven years under Section 397 IPC. 2. Accused nos.8 and 10 were convicted and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/- each under Section 412 IPC and in default of payment of fine, they were sentenced to undergo simple CRA 1403/09 & con. cases 2 imprisonment for six months. Set off was also allowed. The above conviction and sentence are challenged by appellants (A1 to A5, A8 and A10). (The accused nos. 6, 7 and 9 were acquitted of the offences alleged against them). 3. According to prosecution, on 12.5.2004, accused nos.1 to 5 wrongfully restrained PW34, while he was coming in a two wheeler and accused 2 and 3 beat him with an iron pipe. When he fell down, first accused also beat him on his different parts of body. The 4th accused held a knife against PW2 who was the driver of the autorikshaw in which the accused came to the spot and thereafter, first accused took away gold ornaments worth Rs. 20,00,000/- and currency notes worth Rs.1,40,000/-. The role of the 6th accused is that he gave information over mobile phone regarding movements of PW34. Accused nos.7 to 10 sold certain stolen articles knowing the same to be stolen and received sale consideration and thereby, helped accused nos.1 to 5. 4. To prove the prosecution case, prosecution examined PW1 to PW37 and marked Exts.P1 to P51, and MOs 1 to 473. Accused did not adduce any evidence. But, while they were questioned, they put forward a case that they are innocent of the CRA 1403/09 & con. cases 3 allegations made and pleaded not guilty. The trial court, on analysis of the evidence, found that prosecution proved that accused nos.1 to 5 forcibly took away the valuables from PW34, after causing grievous hurt to him. It was also found that accused nos.8 and 10 also had knowledge that articles were stolen during dacoity and prosecution proved the offence under Section 412 IPC beyond reasonable doubt against them. 5. Heard both sides. Perused the records. On the facts of this case, I find it essential to state firstly, the details in the charge framed by the court against the accused. As per the charge framed by the court, on the crucial day, accused nos.1 to 5 got into an autorickshaw and they proceeded to the place of occurrence. On reaching there, PW2, who was driving the autorickshaw was kept away from the scene and thereafter PW34, who was coming in a scooter, was beaten up on his head by second accused with an iron pipe (MO5). 6. The 3 rd accused also beat him with an iron pipe on the back side of his head. PW34 fell down, while first accused beat him with an iron pipe and attempted to commit murder. The first accused took away the gold ornaments worth Rs.20,00,000/- and CRA 1403/09 & con. cases 4 currency notes worth Rs.1,40,000/-. The 4th accused threatened PW34, by showing a knife and kept him away. The 6th accused informed accused nos.1 to 5 over mobile phone about PW34's movements and about PW34 reaching the scene. Accused nos.7 to 10 sold certain gold ornaments knowing that such ornaments are robbed and thereby, helped accused nos.1 to 5 and all of them committed offence under Sections 395, 397 and 412 IPC. 7. To prove the above case, mainly PW 34 who is the alleged victim is examined. PW34 stated in evidence that 2nd and 3rd accused beat him with iron rods on his head and when he fell down, first accused beat him with iron pipe on his back, as well as on his arm. None of the accused are previously known to PW34. Curiously, on a reading of the evidence of PW34, I find that except making a reference to the rank of the accused, there is nothing on record to show as to who was the 1st, 2nd or 3rd accused who committed the overt said act. 8. However, court below entered a finding that three persons who had “restrained PW34 were present in court” as per the evidence of PW34 and he pointed out accused nos.1, 2 and 3. This is absolutely wrong. None was pointed out by PW34, as per CRA 1403/09 & con. cases 5 records and the deposition. PW34 only referred to the rank of accused nos.1 to 3 and stated that they had beaten him. He did not identify the accused in court. It is not recorded by court in deposition whether they were identified by sight. 9. The 4th accused was also convicted for offence under Sections 394 and 397 IPC, but, even as per the charge framed against 4th accused, he had not voluntarily caused hurt to PW34. He had only allegedly shown a knife against PW2 and threatened him but, PW2 has no such case. PW2 gave evidence that he had not taken the accused in his autorikshaw and he had not stated anything to the police, as recorded in Ext.P32. The 4th accused was also not identified by PW34 from the court. Therefore, the fact whether 4th accused was involved in the offence itself is not in evidence of PW 34 or PW2. 10. In a case in which the accused is not previously known to the victim or the witness, the accused must be identified by the relevant witnesses from the court. The court must also record this fact as and when deposition is recorded. A particular accused is identified by the witness in court by pointing out the particular accused. It is not enough for the court to simply record evidence CRA 1403/09 & con. cases 6 with reference to the rank of an accused that he did some overt act, without making it clear whether such person was identified or not. The rank number is given to each accused by prosecution or the court. The witness has to be made to state which accused who stood in the dock committed the particular overt act by pointing out to him. But, evidence is totally silent regarding such fact. Therefore, this court is not in a position to hold, which accused among those who stood trial, committed the alleged overt act. 11. According to court charge, there is no allegation that nay one of the accused committed wrongful restraint. But, PW34 stated that four persons had wrongfully restrained him by holding iron pipes and knife. According to PW34, the 4th person is not present in the court. In the cross-examination, he stated that it is the 5th accused, who had used the knife. Therefore, it is not clear whether it was the 4th accused or the 5th accused who had carried the knife, MO6. In fact, there is no case, as per the court charge that 4th accused had done anything against PW34 or that he wrongfully restrained PW34, as stated by him. In the court charge, no allegation is also made against the 5th accused as having CRA 1403/09 & con. cases 7 wrongfully restrained PW34 or having held any weapon in his hand. 12. Therefore, the evidence of PW34 regarding the involvement of accused nos.4 and 5 about the overt act committed against him, the weapon carried etc. is shabby and is inconsistent with the charge. Based on such evidence, it cannot be said that the prosecution established the presence of 4th and 5th accused at the scene or of having committed any overt act against PW34. None of them were identified also. The 4th person who committed the accused was not present in court also. 13. Any way, in the absence of any allegation in the charge that the 5th accused committed any overt act against PW34, he cannot be said to have committed any wrongful restraint by using any weapon (MO4), as stated by PW34 and hence, on the basis of the evidence of PW34, no conclusion can be arrived at against accused nos.4 and 5. PW34 has no case that he had seen any knife in the hands of the 4th accused. There is also no allegation in the charge that 5th accused had committed any overt act against PW34 or any other person at the scene. CRA 1403/09 & con. cases 8 14. It is also relevant to note at this juncture that PW34 stated in court that he was shown four persons on 16.5.2004, but he identified only two persons who had beaten him. In the absence of any evidence to show the involvement of accused nos.4 and 5 at the scene, they cannot be convicted for the alleged offences, especially in the absence of relevant particulars in the charge about the overt acts allegedly committed by them. 15. According to prosecution, MOs.284 to 459 were seized from the house of 4th accused by PW35, the Circle Inspector, under Ext.P8 mahazar. The said recovery was on 16.5.2004. As per Ext.P8(a), the disclosure statement, the 4th accused allegedly told the Circle Inspector (PW35) that he had kept the gold ornaments and money in his house and he would show the house and ornaments, if he is taken there. As led by the 4th accused, he reached his house and taken out the gold ornaments from his house to PW35. 16. There is no reason to disbelieve PW35. The 4th accused has no case that police officers have any motive against him for concocting a false case. There is no reason to disbelieve PW35 on the recovery. It is true that Investigating Officers have CRA 1403/09 & con. cases 9 not questioned the persons who pledged those articles in the institution run by PW34. But, the said omission is not sufficient to reject evidence relating to recovery of stolen articles from possession of 4th accused. 17. The evidence of PW34 shows that he identified from the court, all the articles siezed at the instance of 4th accused and from his house, as the articles stolen from his house. Those articles were seized at the instance of the 4th accused from his own house on 16.5.2004. The alleged theft was on 12.5.2004. Thus, as per evidence, it is proved that 4th accused was in possession of the stolen articles, within 4 days of the theft. He has no explanation for possession of the stolen articles and therefore, under Section 114 (a) of the Evidence Act, it can be presumed that he is either the thief or the receiver of stolen properties. 18. The incident happened on 12.5.2004 and recovery was effected on 16.5.2004 and hence, in the light of the recent recovery, 4th accused can be presumed to have committed theft of the stolen articles. Even though the evidence regarding his involvement at the scene, given by PW34 is shabby, in the absence of any explanation for the stolen articles by the 4th CRA 1403/09 & con. cases 10 accused, the court can draw presumption under Section 114(a) of the Evidence Act. 19. Regarding the evidence of recovery as against 5th accused, PW35 stated that a search was conducted in the house of 5th accused on 15.5.2004 and Mos.460 to 462 were seized from his house. But, PW35 has no case that the search was conducted pursuant to any statement given by the 5th accused. No statement is alleged to have been given by 5th accused to PW35, which is incriminating against the 5th accused. It is also not in evidence, under what circumstances he had gone to the house of 5th accused and conducted the search to recover MOs.460 to 462, under Ext.P10. 20. A mere search and recovery of stolen articles from a house cannot be treated as incriminating against the accused. Unless there is satisfactory evidence that the house is in exclusive possession of the particular accused, a recovery of stolen articles will not be incriminating against him. It can also be seen from the evidence of PW35 that though the articles, MOs.460 to 462 were found in a hidden state, he has not investigated into, as to who concealed the same. Therefore, on CRA 1403/09 & con. cases 11 the basis of the recovery of MOs.460 to 462, which are two gold bangles and a gold chain with locket, it cannot be said that 5th accused had any role in concealing the article or that he was in possession of those articles. 21. The exclusive possession of those articles by the 5th accused is not established by the prosecution and hence, the recovery of those articles cannot be made a ground to convict the 5th accused for any of the offences alleged against him. The other piece of evidence against 5th accused is the recovery of MO8 to MO13. Those articles are gold ingots and those are recovered at the instance of 10th accused. As per the prosecution case, 5th accused had given those articles to 9th accused and it is the 9th accused, who had handed over those articles to 10th accused. 22. The 9th accused is acquitted, since evidence was not sufficient or satisfactory to connect him with the crime. It can also be seen that there is no evidence on record to show that MO8 to MO13 (gold ingots) are stolen articles. Hence, the evidence adduced by the prosecution is not sufficient to convict the 5th accused for the alleged offences. CRA 1403/09 & con. cases 12 23. Now, the case against accused nos.1 to 3 can be looked into. Learned counsel for first accused argued that the overt act alleged against first accused has not been proved by the evidence of PW34. It is true that PW34 stated in court that first accused beat him on the back as well on his arm with an iron pipe, but the evidence of the doctor (PW18) and the wound certificate (Ext.P23) will not reveal any corresponding injury on PW34. The injury sustained included an incised wound and fracture to the skull, as recorded in Ext.P23. The weapon used by first accused is also not produced in court. 24. It is also relevant to note at this juncture that at the commencement of the investigation and at the time of lodging First Information Statement ('F.I. Statement' for short) the number of persons involved in the offence are only two. F.I. Statement is stated to have been given by none other than the brother of PW34, after making an enquiry with PW34. Since F.I. Statement revealed involvement of only two person, crime was registered against two persons. The F.I.R. is Ext.P33(a). 25. It is also pertinent to note that the allegation made to the doctor was that it was an assault by “unidentified” persons. CRA 1403/09 & con. cases 13 The evidence of PW34 shows that he had no previous acquaintance with any one of the accused. In such circumstances, it is doubtful whether first accused committed any overt act at the scene, as alleged by PW34. In the absence of any evidence regarding causing of hurt by the first accused and he cannot be fastened with the liability of robbery also. The evidence of PW34 read with medical evidence would reveal that no injury was sustained by him at the hands of first accused at the alleged sites by beating with an iron pipe. 26. However, prosecution adduced evidence that on a statement given by first accused to PW37, recovery of an alleged stolen article is effected, under Ext.P18 mahazar. But, learned counsel for the first accused pointed out that the statement allegedly given by the first accused is that he would show one “Simon”, who had purchased half of the gold biscuit given by him and pursuant to the said statement, recovery was effected, but Ext.P18 shows that it was not any “biscuit” or “portion of the biscuit”, which was seized under Ext.P18. It has come out in evidence that MO 467, which is seized under Ext.P18, pursuant to a statement given by first accused is none other than a gold CRA 1403/09 & con. cases 14 ingot. 27. It is also pointed out that under the same mahazar, three gold pieces were also seized, even though first accused had not given any statement to PW37 regarding the three gold pieces. In the light of these infirmities, I am satisfied that the statement given by first accused to PW37 has no connecting link to the articles, which are stolen from the possession of PW34, especially since he has no case in his disclosure statement that any gold biscuit was stolen from his possession. PW34 has also not stated that any gold pieces were stolen from him. PW12, who is a witness to Ext.P18 has also turned hostile to the prosecution and did not support the case of the prosecution at all. In such circumstances, I find that first accused cannot be found guilty for offence of theft or robbery in respect of MO467 and MO465. 28. Now, coming to evidence relating to robbery against accused nos.2 and 3, I find that according to PW34, second and third accused had beaten him with iron pipes on his head and the doctor (PW18) also noted certain injuries on the head, as per Ext.P23 would certificate. As per the charge, it is the first accused who committed the theft. It is he who had taken away the gold CRA 1403/09 & con. cases 15 ornaments from the scooter. According to PW34 also, it was the first accused, who had taken away the gold ornaments and the currency notes from the scooter. But, neither in the charge nor in the evidence of PW34, it is alleged that the second or third accused had committed any theft. 29. The offence of robbery can be made out against a person, if, in order to commit theft or in committing theft or in carrying away or attempting to carry away property obtained by theft, the offender, for that end, voluntarily causes hurt etc. to any person. In the absence of any charge that accused nos.2 and 3 that they committed theft and in the absence of any evidence from the side of PW34 that second and third accused committed any theft, I find that there is no direct evidence regarding theft committed by second and third accused. 30. The trial court, on an analysis of the evidence on record, found that accused nos.1 to 5 have direct involvement in the commission of robbery and 4th accused was present and aiding such commission (vide paragraph 13). It is also held that evidence of PW34 makes it clear that the property in his possession was dishonestly and forcibly taken away by accused CRA 1403/09 & con. cases 16 (A1 to A5), after causing grievous hurt to him. The court also found that the identification of the accused in court by PW34 is proper. According to trial court, prosecution case is that while accused nos.1, 2, 3 and 5 were committing the offence (the offence is not mentioned), 4th accused was in the autorickshaw intimidating the autorickshaw driver (PW2) by means of a knife. Though PW2 turned hostile, the court held that his admissions in cross-examination probabilises the prosecution case. 31. The court below also relied upon evidence of recovery to hold that recovery of the stolen articles from possession of 4th accused soon after the occurrence probabilises the case that the accused had committed robbery. Fourth accused had no proper explanation to offer regarding possession. It was held. Therefore, involvement of accused nos.1 to 5 in dacoity is proved beyond reasonable doubt, it is also held. A number of gold items were recovered by the information provided by accused nos. 8 and 10 beyond reasonable doubt and that evidence makes it clear that 8th and 10th accused had knowledge that the articles were stolen during dacoity, the court below further held. CRA 1403/09 & con. cases 17 32. On hearing both sides and on going through the judgment and records in this case, it appears that the trial court has not even tried to understand what exactly prosecution case is. Points were raised in such a fashion that overt acts alleged by the prosecution against each of the accused was not stated in the points for consideration. General allegations are raised whether accused nos.1 to 6 have committed dacoity etc. Section 354(1)(b) of Code of Criminal Procedure lays down that every judgment shall contain the point or points for determination, decision thereon and the reasons for the decision. Unless the points for determination are raised in an appropriate manner, the court cannot arrive at a correct decision. 33. The court below framed point for consideration, as if 6th accused also committed dacoity. Presence of 6th accused at the scene is not even seen mentioned in the charge framed by the court. As per court charge, only allegation against 6th accused is that he informed accused nos.1 to 5 over mobile phone about PW34 coming to the scene. Against accused nos.1 to 5, it is alleged that accused 1 to 3 and 5 came out of the autorickshaw and 4th accused threatened PW34, by showing a knife and kept CRA 1403/09 & con. cases 18 him away. 34. It also appears that the trial court did not try to find out what exactly dacoity is, as per law. A reading of Sections 390, 391 and 397 IPC, it is clear that a person can be convicted for dacoity if five or more persons conjointly commit or attempt to commit 'robbery'. Of course, persons aiding and committing such commission or attempt also will be liable for commission of dacoity, but it is an inevitable for prosecution to prove that accused committed 'robbery', if a person is to be convicted for offence of dacoity. 35. As per Section 390 of the IPC, in all robbery, there is either theft or extortion. In this case, extortion is not relevant because going by the allegations. This is a case of robbery involving theft only. As per Section 390, theft is robbery if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by theft, the offender, for that end, voluntarily causes or attempts to cause any person death, hurt or wrongful restraint or fear of instant death etc. A reading of the charge submitted by the police as well as the charge framed by the court and evidence CRA 1403/09 & con. cases 19 of PW34 reveals that the person who has allegedly committed theft is only the first accused. No other person is allegedly involved in commission of theft. 36. Theft is defined