IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933 Crl.Rev.Pet.No. 2316 of 2010() ------------------------------ CRA.189/2008 of I ADDL. SESSIONS COURT, THRISSUR CC.520/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... REVN. PETITIONER(S): --------------------- GOPI,S/O.RAJAN,C.NO.6544, CENTRAL PRISON, VIYYUR, THRISSUR. BY ADV. MINI ELIZABETH GEORGE(STATE BRIEF) RESPONDENT(S): --------------- STATE OF KERALA, S.I OF POLICE, MATHILAKAM PS.,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.REKHA C.NAYAR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------- Crl. R.P. No.2316 OF 2010 ---------------------------------------- Dated this the 1st day of July , 2011 ORDER The challenge in this revision petition is against the conviction and sentence imposed on the revision petitioner, who is the 2nd accused for the offence under Section 394 of IPC. 2. The prosecution case is that on 9.5.2007 at 2.00 a.m the petitioner and another accused were seen entering into the compound of Sree Badrakali Temple at Poovathumkadavu and attempting to break open the Bhandaram, by CW1. The night Watchman, who was on duty at the neighboring Higher Secondary School on the southern side of the temple. According to the prosecution, when CW1 tried to prevent the theft, A1 assaulted him with an iron rod and thereby caused injury on the head of CW1 and A2 abetted A1 for the commission of offence and thus the accused have committed the offence u/S 394 of IPC. On the basis of the above allegation, Crime No.314/2007 was Crl. R.P. No.2316 OF 2010 2 registered in the Mathilakam Police Station for the offence under Section 394 of IPC. After investigation, report was filed in the Judicial First Class Magistrate Court, Kodungallur based upon which cognizance was taken for the said offence and instituted C.C.No.520/2007. During the trial PWs. 1 to 8 were examined from the side of the prosecution and produced Exts.P1 to P7. No evidence either oral or documentary produced from the side of the defence while concluding the trial, the learned Magistrate has found that the prosecution had succeeded in establishing the allegation against the accused and accordingly the accused are found guilty of the offence under Section 394 of IPC and on such conviction, the learned Magistrate sentenced the accused including the petitioner to undergo simple imprisonment for a period of 3 years and set off was allowed. 3. Challenging the above conviction and sentence, the petitioner herein who is the second accused preferred an appeal before the Sessions Court, Thrissur and by judgment Crl. R.P. No.2316 OF 2010 3 dated 18.2.2009 in Crl. Appeal 189/2008, the court of Addl. Sessions Judge, Thrissur dismissed the appeal confirming the conviction and sentence imposed against the revision petitioner, by the trial court. Thus, the present challenge is against the judgment of the trial court as well as the appellate court and against the conviction and sentence imposed on the revision petitioner under Section 394 of IPC. 4. In pursuance to the judgment impugned, the petitioner is undergoing imprisonment in the Central Prison, Viyyur from where he preferred this revision petition as a Jail Appeal and therefore, this Court appointed Smt. Mini Elizabeth George, State Brief to prosecute the revision petition for and on behalf of the revision petitioner. Thus, I have heard Advocate Smt. Mini Elizabath George and the learned Public Prosecutor for the State. 5. As I indicated earlier, the specific allegation against the revision petitioner who is A2 is that he along with A1 attempted to break open the Bhandaram of Poovathumkadavu Temple which was detected by PW1 and Crl. R.P. No.2316 OF 2010 4 the petitioner inflicted injury on the head of PW1 by using MOI iron rod and A1 ran away from the spot and thus, the petitioner along with A1 committed the offence under Section 394 of IPC. In order to establish the case against the accused the prosecution mainly relying upon the evidence of PW1, who is the injured and the eye witness and PW2 and PW4 who are the occurrence witnesses. PW1 is the person who detected the presence of A1 and A2 at the place of occurrence at about 2.00 a.m on 9.5.2007 and it was when PW1 questioned the unusual presence of A1 and A2, the petitioner, A2 inflicted the injury . When PW1 was examined in the court he had deposed in terms of the prosecution allegation and he had identified the petitioner as the person who inflicted injury on him. It is also relevant to note that Ext.P1 FI Statement was also proved through PW1, which was according to him launched before PW7, Asst. Sub Inspector of Police who recorded the FI Statement. PW2 is the person who took PW1 to the hospital. He is the temple Manager. PW4 is another Crl. R.P. No.2316 OF 2010 5 witness to the attack during which PW1 sustained injury. The evidence of PW2 and 4 in par with the prosecution allegation. PW3 is the Doctor who examined PW1 and issued Ext.P2 wound certificate. PW5 is the witness in Ext.P3 scene mahazar and PW6 is the witness in Ext.P4 seizure mahazar by which MO1 iron rod was seized by PW8 the Sub Inspector of Police. As I indicated earlier, it was PW7, the Asst. Sub Inspector of Police, Mathilakam who recorded Ext.P1 FI Statement of PW1 and registered Ext.P5 FIR. PW8 the Sub Inspector of Police, as I indicated earlier, who effected the seizure of MO1 as per Ext.P4 seizure mahazar. Exts.P6 and P7 also proved through PW8. The trial court as well as the appellate court found that the prosecution had succeeded in establishing the guilt of the accused including the revision petitioner beyond reasonable doubt. 6. The learned counsel appearing for the petitioner vehemently submitted that, the prosecution has miserably failed to prove the allegation against the accused the Crl. R.P. No.2316 OF 2010 6 petitioner beyond reasonable doubt, since according to the learned counsel the prosecution has no case that either of the accused has made any attempt to break open the Bhandaram. After inviting my attention to the deposition of PW1 and other materials on record it is the submission of the learned counsel that, even if the evidence and materials of the prosecution are taken as admitted, there is nothing to conclude that the petitioner has made any attempt to break open the Bhandaram and therefore, Section 394 IPC is not attracted. 7. On the other hand, Smt. Rekha.C.Nayar, the learned Public Prosecutor submitted that the accused was arrested under a suspicious circumstance at about 4.15 a.m on 14.5.2007 with certain weapons and on his questioning he had confessed regarding the attempt that he had made along with A1 at the place of occurrence of the present case and accordingly, the arrest was effected in the present crime. The learned Public Prosecutor has further submitted that on the arrest of A1 was shown to PW1 and he identified Crl. R.P. No.2316 OF 2010 7 A1, thus according to the learned Public Prosecutor the involvement of the petitioner in the present crime is proved beyond reasonable doubt which was accepted by the trial court and appellate court and therefore, there is no scope for any interference. 8. I have carefully considered the arguments advanced both the counsel for the petitioner as well as the learned Public Prosecutor, and I have perused the evidence and materials on record. In the present case, as I referred above, regarding the incident there is the substantial evidence on PW1, PW2 and PW4. PW1 is the person who detected the crime and who sustained injuries, during his attempt prevent the theft. During his examination, he had identified the accused including the revision petitioner and he had categorically stated that it is the petitioner herein who inflicted the injury on him. Though PW1 was cross examined nothing brought on record to discredit his version. The above evidence, PW1 is further corroborated by the independent evidence that of PW2 and 4. The Crl. R.P. No.2316 OF 2010 8 medical evidence consists of the deposition of PW3 and Ext.P2 wound certificate is also in support of the version of PW1 and the prosecution has proved that PW1 has sustained injury in the incident in which the accused are involved. The prosecution has further succeeded in proving the involvement of the petitioner by adducing link evidence to connect the revision petitioner with the incident. From the evidence of PW8 it is clear that A1 was arrested, while PW8 was on patrol duty, from the bus stop at Mathilakam, Pallivalavu and Crime No.31/2007 was registered under Section 41(1)(d) of Cr.P.C. It is thereafter on subsequent questioning, A1 confessed having committed the offence in this case and the accused were brought and shown to PW1 who identified them. Consequently, PW8 filed Ext.P6 and P7 report with respect to the name and address of the accused. The above evidence of the prosecution is remain intact and nothing brought to even doubt the veracity of the prosecution allegation against the accused. It is also beyond dispute that the petitioner is involved in several Crl. R.P. No.2316 OF 2010 9 other similar cases. Thus, from a careful consideration of the entire evidence and materials on record, I find there is no illegality or irregularity, so as to interfere, with the concurrent findings of the trial court as well as the appellate court and accordingly, the conviction recorded by the courts below is confirmed. Having regard to the facts and circumstances, especially when the petitioner is involved several other cases, I find no reason to interfere with the sentence as well. In the result, there is no merit in the revision petition and accordingly, the same is dismissed, confirming the conviction and sentence imposed by the courts below. V.K.MOHANAN, JUDGE pm/-