IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 19TH AUGUST 2008 / 28TH SRAVANA 1930 Crl.Rev.Pet.No. 1021 of 1998() ------------------------------ CRA.114/1997 of ADDL. SESSIONS COURT, THRISSUR CC.280/1991 of CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR .................... REVN. PETITIONER/ACCUSED: ---------------------------------- UNNIKUTTAN, S/O. EACHARAN, AYYOOR MADAPARAMBU, PARAYA COLONY, P.O. PAINKULAM, (VIA) CHERUTHURUTHY, THRISSUR DISTRICT. BY ADV. SMT.PREETHY KARUNAKARAN SRI. C. RAMAN SMT. MINI M.R. RESPONDENT/COMPLAINANT: --------------------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI. C.M. NAZER, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. =================== Crl.R.P. No. 1021 of 1998 ==================== Dated this the 19th day of August, 2008. O R D E R The revision petitioner, who was the 2nd accused in C.C. No. 280 of 1991 on the file of the Chief Judicial Magistrate, Thrissur for an offence punishable under Section 394 r/w Section 34 IPC, challenges the conviction entered and the sentence passed against him concurrently by the courts below for the aforementioned offence. 2. The case of the prosecution can be summarised as follows: Accused Nos. 1 to 3 in furtherance of their common intention to commit robbery hired an autorickshaw belonging to PW1 Sajeev bearing registration No. KEH.3970 from Kunnamkulam autorickshaw stand in the evening of 25.10.1990 under the pretext of a trip to Thrissur. While returning to Kunnamkulam enroute Ayyanthole-Puzhakkal public road, when the autorickshaw reached a deserted place near Puzhakkal Padam at about 8.15 p.m., A1 caught hold of PW1's neck from the back CRL.R.P. NO. 1021/1998 :2: seat and squeezed his neck pressing it towards the driver's seat, A2 snatched MO1 gold chain weighing 1.5 sovereigns worn by PW1 and A3 took out currency notes worth Rs.65/- and two electricity cards from the pocket of PW1. After pushing PW1 on the road, the accused sped away in the autorickshaw of PW1 towards Poonkunnam direction. The accused have thereby committed the aforementioned offence. 3. On the accused pleading not guilty to the charge framed against them by the trial court for the aforementioned offence, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 15 witnesses as PWs 1 to 15 and got marked 11 documents as Exts. P1 to P11 and two material objects as Mos. 1 and 2. 4. After the close of the prosecution evidence, the accused was questioned under Section 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. They did not adduce any defence evidence when called upon to do so. CRL.R.P. NO. 1021/1998 :3: 5. The learned Magistrate, after trial, as per judgment dated 31.03.1997 found A1 to A3 guilty of the offence and sentenced each of them to rigorous imprisonment for three years under Section 394 IPC. On appeal preferred by the revision petitioner as Crl. Appeal No. 114 of 1997 before the Sessions Court, Thrissur along with the appeals preferred by the other accused persons, the learned Sessions Judge as per common judgment dated 07.11.1998 dismissed the petitioner's appeal confirming the conviction entered and the sentence passed against the revision petitioner. Hence, this Revision. 6. I heard the learned counsel for the revision petitioner and the learned Public Prosecutor. 7. The conviction recorded against the revision petitioner is for an offence punishable under Section 394 IPC which is attracted only if there is voluntarily causing of hurt in the act of committing robbery. Even though the case of the prosecution is that PW1 was assaulted by the three accused persons during the trip of the autorickshaw from Kunnamkulam to Thrissur, PW1 did not mention about any injuries having been sustained by him. CRL.R.P. NO. 1021/1998 :4: Ext.P6 wound certificate also was not relied on by the court below to hold that the accused had sustained injuries in the occurrence. That apart, the examination of the accused under Section 313(1) (b) Cr.P.C shows that no question was put to the accused to suggest that PW1 had sustained injuries in the occurrence except putting Ext. P6 wound certificate. Neither the contents of the same nor the testimony of the doctor who had allegedly examined PW1, was put to the accused. If so, the courts below were not justified in holding that PW1 sustained injuries so as to attract Section 394 IPC. If PW1 had not sustained any injuries, the conviction under Section 394 IPC cannot be sustained in which case the offence which is made out against the accused is one punishable under Section 392 IPC. The conviction under Section 394 IPC is accordingly dislodged. The revision petitioner is convicted of the offence punishable under Section 392 IPC. The conviction recorded by the courts below is modified accordingly. 8. What now survives for consideration is the question as to what is the sentence which could be imposed on the revision CRL.R.P. NO. 1021/1998 :5: petitioner. Even according to the prosecution, the revision petitioner was aged 20 years on the date of occurrence. The learned Public Prosecutor, after obtaining instructions, submitted that the revision petitioner is not involved in any other case and that there are no criminal antecedents against the revision petitioner. This Court had called for a report from the District Probation Officer, Thrissur. In the report dated 25.06.2008 submitted by the District Probation Officer, it is stated that the petitioner is the sole bread winner of his family which looks upon him for sustenance. It is further stated that the family of the revision petitioner is at the verge of a financial collapse that his ailing wife and mother are looking to the revision petitioner for their maintenance that the revision petitioner himself is eking his livelihood by doing small coolie work including painting jobs. The District Probation Officer has recommended the release of the petitioner on probation under Section 4 of the Probation of Offenders Act, 1958. Under these circumstances, instead of imposing a sentence on the revision petitioner, I am of the view that he should be released on probation for a specified period and CRL.R.P. NO. 1021/1998 :6: it is only if the revision petitioner commits breach of the conditions of probation should he be called upon to receive a sentence in this case. Accordingly, for the conviction under Section 392 IPC, the revision petitioner is directed to be released on probation of good conduct for a period of two years, for which purpose he shall appear before the trial court within three weeks from today and execute a bond on such terms as the Magistrate may fix. The revision petitioner is also directed to pay a sum of Rs.5000/- (Rupees five thousand only) to PW1 as compensation under Section 5 of the Probation of Offenders Act, 1958. The said compensation shall be deposited before the trial court within one month from today. In the result, the conviction is confirmed and the revision petitioner is directed to be released on probation as above. Dated this the 19th day of August, 2008. V.RAMKUMAR, JUDGE. rv CRL.R.P. NO. 1021/1998 :7: V. RAMKUMAR, J ------------------------------------ CRL. R.P. No. 1021 of 1998 ---------------------------------------- 19th day of August, 2008 ORDER CRL.R.P. NO. 1021/1998 :8: