IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 11TH AUGUST 2011 / 20TH SRAVANA 1933 CRL.A.No. 2439 of 2009 ------------------------------- (SC.768/2008 of ADDL. DISTRICT & SESSIONS COURT (ADHOC), THRISSUR & CP.6/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I,CHALAKUDY) .................... APPELLANT(S): ACCUSED NO.4: --------------------- SAJITH, AGED 26 YEARS, S/O.BABU, PUNOLPARAMBIL HOUSE, NELLIKUZHI VILLAGE KOTHAMANGALAM, ERNAKULAM DISTRICT. BY ADV. SRI.P.B.ASOKAN SMT.P.LATHA SRI.P.J.UNNIKRISHNAN SRI.O.U.ANISH RAJ SRI.AJAY V.ANAND SRI.PRAISHEEL PRAKASAM SMT.E.K.SAJNA SMT.LAJI SAM ZACHARIA SRI.P.B.AJOY RESPONDENT(S): COMPLAINANT ------------------------ STATE OF KERALA, REPRESENTED BY CI OF POLICE, CHALAKKUDY THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/08/2011, ALONG WITH CRL.A.NO.1165/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN,J --------------------------------------- Crl. A.Nos. 2439 of 2009 & 1165 of 2010 `C.R' -------------------------------------------- Dated this the 10th day of August, 2011 JUDGMENT As the above two appeals are arising out of the same judgment dated 22.8.2009 in SC No. 768/2008 of the Court of Additional District and Sessions Judge (Fast Track Court No-I), Thrissur and the question of facts and law involved are identical, the above appeals are heard together and being disposed by this common judgment. 2. Crl.A No.2439/2009 is preferred by accused No.4 in SC No.768/2008 through a counsel of his choice, whereas Crl.A No.1165/2010 is preferred by the 2nd accused, in the above sessions case, who is undergoing imprisonment in pursuance of the above judgment and thus he preferred the above appeal from the jail. On receiving the appeal as ordered by this Court, the registry has appointed Smt.V.Sreeja, counsel as State Brief to prosecute the appeal for and on behalf of the said appellant. Thus, when Crl.A.No.2439/2009 came up for admission, received the same in file and this Court, by order dated 23.12.2009 in Crl.M.A.11324/2009, suspended the execution of the sentence imposed against the appellant therein/4th accused and thus, he is on bail whereas the other appellant is undergoing imprisonment. 3. Thus the challenge in these appeals is against the conviction and sentence imposed on the appellants, u/s.397 r/w Section 34 of the Indian Penal Code (hereinafter referred to as 'IPC'), vide judgment dated 22.8.2009 in SC No.768/2008 of Crl.A.Nos.2439/2009 & 1165/2010 :-2-: the court of Additional District and Sessions Judge (Fast Track Court No-I), Thrissur. 4. The prosecution case in brief is that in furtherance of the common intention of the accused in committing theft of a Tata Indigo car, bearing registration No.KL 42/6770 from the possession of the taxi driver namely, Ramachandran-PW1, the accused caused hurt to Ramachandran and attempted to cause his death and dishonestly taken away the car at 16.30 hours on 6.10.2007. With the above allegation, Crime No.163/2007 was registered in Vettilappara Police Station, for the offence punishable u/s.397 of IPC. After investigation, the Police had preferred the report before the Judicial First Class Magistrate Court, Chalakudy. 5. When the final report was filed, all the accused were arrested and except A2, A1, A3 and A4 were on bail. At the time of committal, besides A2, A4 alone appeared and accused Nos.1 and 3 jumped over the bail condition and thus, they were absconding. Thus, the learned Magistrate took cognizance for the said offence and instituted CP No.6/2008 and subsequently, by his order dated 25.4.2008 in the above proceedings, the case with respect to A2 and A4 was committed to the Sessions Court, wherein it was received as SC No.768/2008 and the said case was subsequently, made over to the trial court for disposal. 6. After getting the file from the Sessions Court, and on the production of the 2nd accused and on the appearance of the 4th accused, the trial court has framed a formal charge against the said accused after hearing the accused as well as the Crl.A.Nos.2439/2009 & 1165/2010 :-3-: prosecution for the offence punishable u/s.392 of IPC and when the said charge was read over and explained to the accused, they denied the same and pleaded not guilty. Consequently, the prosecution adduced its evidence consisting of the deposition of PWs.1 to 12 and the documents Exts.P1 to P13. Besides the above, MO1 plastic rope has also been identified and marked. When the prosecution evidence is closed, the accused were questioned u/s.313 of Cr.P.C and the incriminating circumstances and evidence, which emerged during the prosecution evidence, when put to the accused they denied the same and they took a defence of total denial. In the light of the evidence and materials on record and considering the rival plea taken by the parties, the court below formulated 4 points for its consideration and finally it was found that the accused has used MO1 and attempted to cause the death of PW1 and thus, the prosecution has brought out the ingredients of the offence of robbery under Section 390 and the accused attempted to cause the death of PW1 by using MO1 at the time of committing the robbery and thus, the prosecution has proved the offence punishable u/s.397 r/w S.34 of IPC. Thus, the learned sessions judge found that the accused are guilty u/s.397 r/w S. 34 of IPC and accordingly, convicted them thereunder. On such conviction, both the accused are sentenced to undergo rigorous imprisonment for 10 years u/s.397 r/w S.34 of IPC. Set off is allowed. It is the above finding, conviction and sentence are challenged by accused No.2 and 4 by filing the above two appeals. 7. The specific case of the prosecution is that the accused came to the taxi stand Crl.A.Nos.2439/2009 & 1165/2010 :-4-: at Aluva where PW1 was plying his vehicle and the 1st accused Yoonus hired the car of PW1 under the pretext to go to Vazhachal to meet his friend said to be a Forest Guard, and as the driver, PW1 has agreed for the trip and when he started the car, the other accused also boarded into the car and thus, the car departed from the stand towards Vazhachal at 16.30 hours on 16.10.2007. According to the prosecution, when the car reached at Choozhimedu bridge,(Choozhimedu palam) nearly two kms. away from Puliyilappara junction, at 8.00 p.m, the 4th accused Sajith, who is the appellant in Crl.A.No.2439/09, asked PW1 to stop the car under the guise for urination. The 3rd accused Shyju was sitting in the front seat and others were sitting in the back seat, among which the 1st accused Yoonus was sitting just behind the driver, PW1. According to the prosecution, when the car stopped as directed by fourth accused, the 1st accused put a tangled knot made up of a plastic rope-MO1 in the neck of PW1 with an intention to kill him by using the said rope. According to the prosecution, seeing the above act of A1, PW1 inserted his left hand inside the knot and prevented the 1st accused from tightening the knot in his neck. Thus, according to the prosecution a scuffle was occurred between them and due to the death fear of PW1, he kicked at 3rd accused Shyju forcibly, who was sitting on the front seat and as a result of it, the front left door was opened and the 3rd accused fell out of the car and PW1, after escaping from the clutches of the 1st accused, jumped out of the car through the left front door. Then, the 1st accused shouted and commanded the 2nd accused to catch PW1 and when Crl.A.Nos.2439/2009 & 1165/2010 :-5-: 2nd accused caught hold of the neck of PW1, he narrowly escaped by biting on the hand of the 2nd accused, and at that time, the knot on the neck of PW1 was loosened and he escaped by running towards the back side of the car. According to the prosecution, at that time the other accused entered into the car and the 1st accused drove the car towards the direction in which the car was faced, when it was stopped and removed the same from the scene of occurrence and by that incident, PW1 incurred a loss of `.4,50,000/-. 8. It is the further case of the prosecution that the place of occurrence is inside the reserved forest area, from where the injured-PW1 ran away on account of his death fear and on his way, he met a man running on a motor bike and the injured revealed all what happened to him and thus, injured was taken to nearby place, in the motor bike namely, at Puliyilappara junction, where mobile phone range was available. Thus, PW1 collected the phone number of Vettilappara Police Station, through the motorists from a nearby shop, and thus, PW1 informed the incident to the Police and the Police came there and the injured was taken to Vettilappara police station in the police jeep. According to the prosecution, in the scuffle, the victim has received injuries on his left hand finger and Vettilappara Police recorded the statement of PW1 and registered the above crime and the injured was referred to the nearby Govt. Hospital for treatment. On furnishing information to the relatives of PW1 at his home town, they along with his kith and kin came to the police station and the injured was taken to the hospital. Crl.A.Nos.2439/2009 & 1165/2010 :-6-: According to the prosecution, the incident was published with the assistance of the general public and the police got information about the vehicle and thus, the vehicle was seized as well as two accused were taken into custody on the next day. Thus, according to the prosecution, the accused has committed the offence punishable u/s.397 of IPC. 9. As I indicated earlier in order to substantiate the above allegation, the prosecution has examined PWs.1 to 11 and produced Exts.P1 to P13 and MO1 plastic rope. Among the prosecution witnesses, PW1, who is the victim and the injured, is the star witness of the prosecution. When he was examined, he had categorically deposed before the court below about the entire incident, strictly in accordance with the prosecution case. PW1 has identified the accused during his examination in the court and MO1 was identified and marked. PWs.2 and 3 are the taxi drivers of Aluva bus stand, who were plying vehicles along with PW1, and during their examinations, they have deposed in terms of the prosecution case and identified the accused as the persons who hired the vehicle of PW1 as alleged by the prosecution. They are also witnesses to Ext.P3 seizure mahazar of the car bearing registration No.KL 42/6770. PW4 is the station house officer of Malakkappara Police Station, who deposed before the court that about 8.20 p.m on 6.10.2007, he got information from Vettilappara Police Station regarding the incident. According to him he conducted raid along with other Police officials within the Malakkappra Police Station limit and made enquiries about the Crl.A.Nos.2439/2009 & 1165/2010 :-7-: stolen car. He had also deposed that during such enquiry himself and party gone to Ropmattam and gave publicity about the incident to general public and sought their help. According to PW4 though, himself and party waited till the midnight on 6.10.2007 at Ropmattam, they did not receive any valuable information and thus, they returned to the Police Station and the general public gathered there waited, continuously for 2 days to find out the culprits. According to PW4, at 6.00 p.m on 7.10.07, one person from Ropmattam, gave a phone message to Malakkappara Police Station that they had seen the car in question and the culprits at Ropmattam and the car was not stopped in spite of stop signal given and it is further informed PW4 that the culprits escaped from there and drove the car towards Malakkappara direction. Thus, according to PW4, he along with Police Officials while waiting near to the Malakkappara Police station they happened to see the stolen car coming towards them. Thus, according to PW4, on seeing the Police party, the culprits stopped the car there and ran towards the Tea Estate. According to PW4, the general public who followed the car also came there and joined with the police to catch the culprits and by the evening of 7.10.2007, accused Jomon and Shyju were caught from the Tea-Estate. According to PW4, they could not chase the other accused namely Sajith and Yoonus and they escaped by the side and the car was taken to the custody and brought to the Police Station. 10. PW5 is an independent witness. He is a permanent resident of Crl.A.Nos.2439/2009 & 1165/2010 :-8-: Malakkappra. He had stated that the stolen car crossed the town, but the same did not stop in spite of the signal given by them, and they gave intimation to Malakkappra Police Station and chased the car. According to PW5, he was also a member of the raiding party, consisting of general public and he had also deposed that they chased the culprits and two of them were booked and PW5 identified the accused in the court. PW6 is the registered owner of the vehicle in question and he had deposed that PW1 is the driver of the vehicle. He had also admitted that the vehicle was released to him from the Police Station on the basis of Kychit executed by him. PW7 is also an independent witness who deposed that he gave phone number of Vettilappra Police Station to PW1 and according to him, PW1 approached him at 8.30 p.m on 6.10.2007 and the victim disclosed about the incident to him and sought his assistance. PW8 is another independent witness, who is an attester to Ext.P4 scene mahazar. When he was examined, he had identified his signature in Ext.P4 and deposed that he was present at the site, when Ext.P4 was prepared. He had also deposed before the court that the Police seized MO1 in his presence and he identified the same also. PW9 is the doctor, who examined PW1 on 7.10.07 and he issued Ext.P5 wound certificate. When PW9 was examined, he had deposed in terms of the contents of Ext.P5 wound certificate. 11. PW10 is a Forest Guard, who was on duty at relevant time in the Forest Check post at Charpa. The check post is coming within the Vettilappara Police Station Crl.A.Nos.2439/2009 & 1165/2010 :-9-: limit. When PW10 was examined, he had deposed that at about 7.15 p.m on 6.10.07 a Tata Indigo car bearing registration No.KL 42/6770 came to Charpa Forest Check Post and the 4th accused Sajith made endorsement in the check post register. The relevant entry is marked as Ext.P6. According to PW10, he was told by 4th accused that the car was going to Valppara. Through PW10, the relevant entry at page Nos.52 and 53 of the register (Ext.P6) is marked as Ext.P6(a). When PW10 was examined, A4 was absent in the court. During the deposition of PW10, he had deposed that he had identified the 4th accused, Sajith at the office of CI of Police, Chalakkudy on 1.11.2007 and Ext.P6 contained his signature. According to PW10, he can very well identify the 4th accused, since he had seen him twice, i.e just before the time of occurrence and on another occasion during the course of investigation. 12. PW11 is the then Sub Inspector of Police, Vettilappara Police Station and he deposed that on getting phone message from the injured he passed the wireless message about the incident to the nearest Police Station and took steps to book the culprits. He had also deposed regarding the entire incident after getting the information from PW1. According to PW11, he recorded Ext.P1 FI Statement of PW1 and registered Ext.P1(a) FIR on the basis of Ext.P1 FI Statement. According to PW11 as directed by the CI of Police, Chalakkudy he prepared Ext.P4 scene mahazar and also seized MO1, material object. PW11 further deposed that, he had recorded the arrest of A2 and A3 at about 8.00 p.m on 7.10.2007. Crl.A.Nos.2439/2009 & 1165/2010 :-10-: 13. According to PW11, after arrest, on questioning A2 and A3, they divulged the information about the involvement of A1 and A4 in the said crime. Since the full address of A4 and A1 were not available , they were not arrayed as accused. According to the prosecution, A4 surrendered before the CI of police Chalakkudy on 31.10.2007, who was examined as PW12 and on the basis of intimation given by PW12, PW11 went to the office of PW12 and recorded the arrest of A4 at 7 p.m on 31.10.2007. According to Prosecution, as requested by PW12, PW4 along with some of the natives of Malakkapara, who are the persons joined with Malakkapara police for searching the accused on 7.10.2007, went to the office of PW12 and identified A4 and A2. After the arrest of A4 and after his identification by the witnesses, A4 was produced before the Judicial First Class Magistrate, Chalakkudy with Ext.P13 remand report. 14. The investigation was continued by PW12, who finally laid the charge. PW12 deposed that the arrested accused were produced before the witnesses and they properly identified the accused, during the course of investigation. These are the evidence and materials discussed, referred and relied on by the learned Sessions Judge in support of his findings and convicting the accused under section 397 read with Section 34 of IPC and the present appeals are preferred against the above findings and conviction and sentence. 15. I have heard Sri P.B. Ajoy, the learned counsel appearing for the Crl.A.Nos.2439/2009 & 1165/2010 :-11-: appellant in Crl.A.No.2439/2009 and Smt. V.Sreeja, the counsel appearing for the appellant in Crl.A.No.1165/2010 and Sri P.A.Salim, the learned Pubic Prosecutor appearing for the State. 16. Smt. Sreeja, the learned counsel appearing for A2, the appellant in Crl.A. No.1165/10 submitted that against A2, no overt act is alleged and the prosecution has miserably failed to prove any active role against A2 in the commission of the offence. It is also the submission of the learned counsel that MO1 rope is not a deadly weapon and therefore no offence is attracted against A2. It is the further submission of the learned counsel that the prosecution has miserably failed to establish the identity of A2 and his presence in the commission of the offence as alleged by the prosecution. According to the learned counsel, no proper test identification parade was conducted and all the witnesses including PW1 have no prior acquaintance with A2 and therefore, the evidence of PW1 and other witnesses regarding the identity of the accused cannot be accepted as valid and legal, especially in the absence of test identification parade. Thus according to the learned counsel, the appellant/accused is entitled to get an acquittal. 17. Sri P.B.Ajoy, the learned counsel for the appellant in Crl.A.No.2439/2009, preferred by A4 raised several factual and legal questions in his argument in support of his fervent plea for an acquittal of A4. The learned counsel vehemently submitted that the identity of A4 is not proved legally and properly and there is no Crl.A.Nos.2439/2009 & 1165/2010 :-12-: legal evidence to establish the identity and role of the accused in the commission of the offence alleged. According to the learned counsel, Ext.P1(a) FIR is a concocted document since in the FIR, which is allegedly prepared at the initial stage of investigation, the names of the accused are shown in the order as arrayed in the final report, though in Ext.P1 FIS, the names of four accused are given in a different order. According to the learned counsel, PW1 did not sustain any injury in the nature mentioned in Section 397 of I.P.C. so as to attract Section 397 IPC. According to the learned counsel, even as per the prosecution allegation, the injury was inflicted and weapon was used by A1 and therefore, as far as A4 is concerned, Section 397 is not at all attracted. It is the further submission of the learned counsel that on a perusal of Ext.P2 trip sheet, the same can be seen as a forged one since the same was produced by PW1 from his possession, when the car was in the custody of Police. According to the learned counsel, Ext.P6 register which is allegedly maintained in the check post at Charpa, cannot be relied on because of the inherent discrepancy contained therein. On the strength of the endorsement contained in Ext.P6, it is the further submission of the learned counsel that in the remarks column it was shown that the car in question was returned and therefore, further allegation of the prosecution that the car was seized from the jurisdictional limit of Malakapara police station is incorrect and the same will go against the prosecution case. 18. The learned counsel Mr. Ajoy emphatically submitted that the identity of Crl.A.Nos.2439/2009 & 1165/2010 :-13-: A4 is not established beyond reasonable doubt and in support of the above argument, the counsel invited my attention to the depositions of PW4, PW5 and PW10. According to the learned counsel, the evidence of PW4, who is a police officer, and PW5, though an independent witness, are not free from doubt. It is further submitted that the forest guard who was cited as PW10, and who claimed to have identified A4, is a highly interested witness and PW10 has also no prior acquaintance with A4 and therefore PW10 cannot be believed. The learned counsel on the strength of the deposition of PW5 submitted that PW5 identified A4, as instructed by PW12 and hence the evidence of PW5 cannot be taken as a legal evidence to establish the identity of A4. According to the learned counsel , PW10 has never spoken to any feature of A4 so as to identify A4 either at the police station or in the court. In support of the above submission, the learned counsel placed reliance upon the decision of the Apex Court reported in Brij Mohan v. State of Rajasthan (AIR 1994 SC 739); S.C. Bahri v. State of Bihar (AIR 1994 SC 2420). 19. Besides the submission based upon the factual inputs and the evidence, the learned counsel advanced an argument to the effect that Section 397 of IPC is not attracted against A4 in the light of the specific allegation of the prosecution and in view of the available evidence involved in his case. According to the learned counsel Section 397 of IPC will be attracted only against the “offender” mentioned in Section 397 of IPC and in the present case, even according to the prosecution, the Crl.A.Nos.2439/2009 & 1165/2010 :-14-: overt act is attributed against A1 only and therefore, A4 cannot be convicted under section 397 or with the aid of Section 34 of IPC. It is the further submission of the learned counsel that the ingredients of Section 394 have not been established by the prosecution and the evidence from the side of prosecution is not sufficient to show that A4 “is concerned” in committing the offence. It is also the submission of the learned counsel that as no overt act is attributed against A4 in the commission of the offence, A4 will not come under the purview of “offender” as mentioned in Section 390 of IPC with respect to robbery. Thus, according to the learned counsel, no offence under section 392 or 394 or 397 is attracted against A4 and therefore, he is entitled to get a clear acquittal. In support of the above submission, the learned counsel placed reliance upon the following decisions: Aslam Alias Deewan v. State of Rajasthan [(2008) 9 SCC 227); Shri Phool Kumar v. Delhi Administration [(1975) 1 SCC 797]; Ashfaq v. State (Govt. of NCT of Delhi) [(2004) 3 SCC 116]; Kannan v. State of Kerala [(1979) 3 SCC 319] and Shikandar v. The State (1984 CRI.LJ NOC 103 (Delhi). 20. On the other hand, stoutly resisting the contentions raised by the counsel for the appellants in both the appeals, Mr.P.A.Salim learned Public Prosecutor submitted that the arguments advanced by the counsel for 4th accused before this Court is diametrically opposed to the stand taken by 4th accused during the trial. Inviting my attention to paragraph 10 of the judgment of