IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 24TH NOVEMBER 2009 / 3RD AGRAHAYANA 1931 CRL.A.No. 1058 of 2008() ------------------------ SC.610/2005 of SESSIONS COURT, KASARAGOD .................... APPELLANT(S): ACCUSED NO.1: ---------------------------------------------------- UDAYAN @ SATHEESA, S/O.RAMA MUKARI, CHOYIMOOLA, NEERCHAL VILLAGE (C.NO.2642, CENTRAL PRISON, KANNUR). BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT(S): COMPLAINANT: ------------------------------------------------------- STATE - C.I. OF POLICE, KUMBLA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.Appeal.No.1058 of 2008 = = = = = = = = = = = = = = Dated this the 24 th day of November, 2009 JUDGMENT In this appeal filed under Section 374(2) Cr.P.C, the appellant who is the 1st accused in S.C.No.610 of 2005 on the file of the Sessions Court, Kasaragod, challenges the conviction entered and the sentence passed against him and the other accused persons for offences punishable under Sections 452 and 398 IPC. For the conviction under Section 452 IPC, he was sentenced to rigorous imprisonment for 3 years and for the conviction under Section 398 he was sentenced to rigorous imprisonment for 7 years, with a direction that the substantive sentences shall run concurrently. 2. The case of the prosecution as unravelled by the oral evidence of PW1 (Dr.K.A.Khader), the 1st informant and his son PW2 (Shajahan) is to the following effect:- Crl. Appeal No.1058 of 2008 2 PW1(K.A.Khader) who is a doctor by profession is residing at Kunjathur in Kasaragod Taluk in his own house as evidenced by Ext.P5 Ownership Certificate. He is also running a private clinic attached to his house. PW1 is residing along with his wife, son and workers in the said house. The occurrence in this case took place at 3.45 a.m, on 13.09.2004. Hearing the calling bell at the odd hours of 3.45 a.m, he woke up from the bed and switched on the light. A1 who was found standing outside the gate cried saying that he was having acute stomachache. PW1 sent Manikandan, his domestic servant to fetch A1. There were four other persons along with A1. All of them got inside the gate. A1 was brought into the consultation room. A2 also accompanied him. The other three persons stood outside the room. After examining A1, PW1 gave him medicine. A1 asked for drinking water. PW1 asked Manikandan to bring some water. Manikandan brought water and A1 who was lying on the Crl. Appeal No.1058 of 2008 3 consultation table drunk the same. Those who were standing outside the room, made an attempt to get inside the room. Suddenly, A1 and A2 put MO1 bathing towel around the neck of PW1. PW1 raised a hue and cry. At that time companions of A1 who were standing outside showed a knife and demanded gold and money and threatened to kill him otherwise. MO1 was the bathing towel which was put around the neck of PW1. MO2 is the knife which was shown by the accused. Hearing the commotion his wife and son(PW2) came there. They offered to give money presumably to save PW1. Somehow PW1 extricated himself from the clutches of the intruders and got into his bed room and telephoned the police. Manikandan had also escaped. Sensing danger the 5 intruders thereupon made good their escape and sped away in the vehicle in which they had come. The intruders were speaking Thulu and Malayalam. After that PW1 went to Manjeswaram Police Station and lodged Ext.P1, First Information Crl. Appeal No.1058 of 2008 4 Statement. 3. This in short is the occurrence as spoken by PW1. PW2 his son has also substantially corroborated the testimony of PW1. PWs.1 and 2 alone are the occurrence witnesses. To attract Section 398A IPC it should be proved that at the time of attempting to commit robbery or dacoity the offenders were armed with a deadly weapon. The evidence of PWs.1and 2 does not show that MO1 bathing towel was used by A1 and A2 for the purpose of strangulating PW1 or to do away with him. MO1 was used only to restrain PW1 from running away and it was the other three persons who showed the knife threatening to kill him in case he did not acceed to their demand for money and gold. Hence in the facts and circumstances of the case, it cannot be said that MO1 towel was used as a deadly weapon. If so, the offence punishable under Section 398 IPC is not attracted to the facts and circumstances of Crl. Appeal No.1058 of 2008 5 the case. But then there was definitely an attempt to commit robbery and the persons present and aiding such attempt were five persons answering the definition of dacoity under Section 391 IPC. If so, the offence which is made out is one punishable under Section 395 IPC. As for the act of criminal trespass, there cannot be any doubt that all the five intruders were gaining entry into the clinic of PW1 by A1 feigning stomachache. The purpose of gaining entry into the clinic was for the purpose of committing robbery. Eventhough they could not succeed in committing robbery in order to attract Section 395 IPC it is enough that there is an attempt to commit robbery. Hence the offences which were made out against the appellant were those punishable under Sections 452 and 395 IPC. The conviction entered against the appellant is accordingly altered to offences punishable under Sections 452 and 395 IPC. 4. What now survives for consideration is the question Crl. Appeal No.1058 of 2008 6 regarding the legality and extent of the sentence imposed on the appellant. Having regard to the daring manner at the odd hour of night the appellants and his companions made entry into the clinic of PW1 shows the fearless manner in which the intruders made an attempt to commit robbery. Hence, penal servitude by way of incarceration alone will serve as an effective disincentive to such daring offences I, therefore, do not interfere with the conviction and sentence imposed on the appellant under Section 452 IPC. The conviction and sentence imposed on the appellant under Section 452 IPC are confirmed. As for the conviction under Section 398 IPC, the same has already been altered to one punishable under Section 395 IPC. For the said conviction the appellant does not deserve rigorous imprisonment for 7 years. I am of the view that rigorous imprisonment for 5 years will suffice for the conviction under Section 395 IPC. Accordingly the conviction as well Crl. Appeal No.1058 of 2008 7 as the sentence imposed on the appellant under Section 398 IPC are set aside and instead the appellant is convicted under Section 395 IPC. For the said conviction, he shall undergo rigorous imprisonment for five years. The substantive sentences shall run concurrently. He shall be released from prison upon serving the above sentence, unless his continued detention is found necessary in connection with any other case against him. In the result this Criminal Appeal is partly allowed as above. Dated this the 24 th day of November, 2009. V. RAMKUMAR, JUDGE sj