IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA WEDNESDAY, THE 22ND DAY OF SEPTEMBER 2010/31ST BHADRA 1932 CRL.A.No. 2616 of 2009 ( ) -------------------------- SC.84/2009 of ADDL.SESSIONS COURT (ADHOC)-II, THODUPUZHA CP.7/2009 of J.M.F.C.-I(FOREST OFFENCES),TPA APPELLANT(S): ------------ VADIVELU, S/O.SUBRAMANIAN, C.NO.7700, CENTRAL PRISON, VIYYUR THRISSUR-680010. BY ADV. SMT.MINI ELIZABETH GEORGE(STATE BRIEF) RESPONDENT(S): ----------------- 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 22-09-2010, ALONG WITH CRA NOS.37/2010 & CRA. 898/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA J. ------------------------- Crl.Appeal Nos.2616/2009, 37/2010 & 898/2010 -------------------------- Dated this the 22nd September, 2010 J U D G M E N T These appeals arise from the conviction and sentence passed against the appellants under Sections 457 and 397 read with Section 34 of Indian Penal Code ('IPC' for short) by Additional Sessions Court. Each of the accused (Accused nos.1 to 3) is sentenced to undergo rigorous imprisonment for a period of 3 years and to pay a fine of Rs.3,000/- and in default of payment of fine to undergo simple imprisonment for a period of 3 months under Section 457 IPC. 2. The appellants were also sentenced to undergo rigorous imprisonment for a period of 7 years and to pay a fine of Rs.5,000/- each and in default of payment of fine to undergo simple imprisonment for a period of 6 months under Section 397 IPC. The sentences were ordered to run concurrently. Each of the accused (Accused nos.1 to 3) filed independent appeals. All these appeals are heard and disposed of by this common judgment. 3. On hearing both sides and on going through the records, I find that the facts have to be stated in two sets. The facts disclosed from the charge-sheet laid by the police are as follows: Accused nos.1 to 3 committed house trespass in the night by entering into the Crl.Appeal Nos.2616/2009, 37/2010 & 898/2010 2 house of PW1 on 23.06.2006 at 2 a.m. by breaking open the door. They also committed robbery. The alleged offences are under Sections 457 and 397 IPC. As per the charge-sheet laid by the police, the sequence of events are as follows: PW1 saw the first accused snatching the chain from the neck of PW2 and when PW1 stood up, third accused beat PW1 with a stick MO2 and caused hurt to him. 4. It is further alleged in the final report that PW2 made a hue and cry on seeing PW1 being beaten, when second accused intimidated PW2 by showing a chopper and by stating that she would be killed if she raised voice. He also removed the ornaments from the body of PW2 and the children by force. The third accused took PWs 1 and 2 by force and kept them in the courtyard and thereafter, third accused kept the chopper MO1 on the neck of PW1 and threatened him that if he raise voice he would be killed. 5. The first and second accused entered the house and committed theft of the gold ornaments and Rs.20,000/- and also the gold ornaments from the body of the child (altogether 27 sovereigns) , Rs.4000/- and a watch worth Rs.4000/- (Rs.1,80,000/- in total). 6. But, the court framed the charge as follows: “On 23.6.2006 that you, A1 to A3, in furtherance of your common intention to commit robbery, committed lurking house Crl.Appeal Nos.2616/2009, 37/2010 & 898/2010 3 trespass by 2 A.M. by entering into the southern side bed room of the house of CW1 bearing No.VII/107 of Alakodu Panchayat who was residing with his family there and robbed 27 sovereigns of gold ornaments and 20,000/- rupees which were kept in the almirah and a Seiko 5 watch Rs.4000/- together having a total worth of Rs.1,86,000/- from the bed room of CW1 by A3 beating CW1 with a stick and A2 threatening CW1 and CW2 by a chopper at Thalayanadu kara in Alakkodu Village and you thereby committed the offences punishable under Sections 457 and 397 r/w Sec.34 IPC are triable by a court of session. 7. To prove the prosecution case, prosecution adduced evidence and examined PWs 1 to 11 and marked Exts.P1 to P7 and MOs 1 to 4. The accused were questioned under Section 313 Code of Criminal Procedure and they denied the entire allegations made against them. According to them, this case is falsely foisted against them. First accused contended that he did not even know anything about this case. He was taken into custody and the responsibility of this case was fastened falsely on him. He is undergoing imprisonment for a period of 30 years, in total 4 cases. 8. The second accused's case is that he was not aware of anything in this case. Altogether 35 cases are charge-sheeted against him and in all those cases, he is totally innocent. There are 10 to 14 cases pending before the trial court. After taking him into custody he is falsely implicated as the leader in all crimes. For the Crl.Appeal Nos.2616/2009, 37/2010 & 898/2010 4 offences which are committed by other accused, he is made a co- accused. He is undergoing imprisonment for a period of 20 years in 7 such cases in which he is absolutely innocent. The third accused stated that he is paralysed in both hands and legs and it was in such situation that he was implicated in this case. He is undergoing imprisonment for 30 years in 3 cases. 9. Two of the accused (Accused nos.1 and 2) filed appeals as jail appeals and State Briefs were appointed in those appeals. Third accused has engaged a private counsel. 10. Learned counsel for first accused argued that there is no recovery in this case from first accused. The crime was committed in the year 2006 and arrest of accused was caused only after 2 years. It is also submitted that the accused are Tamilians and no identification parade was conducted in this case. As per the prosecution case, a confession statement was recorded from the accused but that is not marked in this case, it is submitted. According to prosecution itself, the face of the accused was covered by a cloth. 11. It is also in evidence that PW2 cried and dog was there in the house but the neighbours are not made witnesses. None of the neighbours were examined as witnesses to the occurrence or part of the occurrence. It is also submitted that as per the scene mahazar, there was only a table lamp and it is not stated in the mahazar that Crl.Appeal Nos.2616/2009, 37/2010 & 898/2010 5 emergency light was there. According to witnesses they had seen the incident in the light emerging from the emergency lamp. These are some of the arguments. It is also argued that PW2 was examined by the doctor only at 2 p.m., after 12 hours of the incident. 12. Learned counsel for second accused argued that PW1 stated in the chief examination itself that they had kept the emergency lamp switched on, while they went to bed. As per the evidence of PW1 he went to bed by 9 p.m. and at that time there was no electric power and hence emergency lamp was kept switched on. Therefore, it is highly improbable that at the time of offence at 2 a.m the lamp will be burning since an emergency lamp will burn only for a maximum of 2 hours. Learned counsel for first accused pointed out that the case of PW3 that MO1 chopper and MO4 axe which were seized in this case were sharpened by him. But the description in the seizure mahazar runs contrary to this, it is submitted. 13. Learned counsel for 3rd accused argued that third accused had allegedly covered his face with a cloth at the time of offence. No test identification parade was conducted in this case. It is also submitted that PWs 1 and 2 have no previous acquaintance with the accused and at the time when the accused caught PWs 1 and 2 at the courtyard there was no light at the scene. PW2 admitted this fact and Crl.Appeal Nos.2616/2009, 37/2010 & 898/2010 6 stated that the light was only available from the emergency lamp. To prove the ownership of the lamp no bills are produced. Learned counsel for first accused argued that the articles MO1 and MO4 were seized from open space. According to the third accused, he was arrested on the basis of a statement given by first and second accused and no recovery was effected from third accused. 14. Learned Public Prosecutor argued that prosecution cannot be said to be bad for failure to recover the articles. The accused could be arrested only after two years of the incident and it may be difficult to recover the articles earlier. It is also submitted that omission in the scene mahazar regarding the emergency lamp may not be taken as a ground to disbelieve the evidence of PWs 1 and 2 because there is no challenge on this aspect. None of the witnesses was cross-examined about failure to seize emergency lamp and merely because emergency lamp is not seized prosecution case will not become doubtful, it is argued. 15. The First Information statement was given on the same day and the crime was also registered on the same day. PW1 also sustained injuries in the incident and the weapons were recovered. It cannot be said that the emergency lamp will stop burning after a period of 2-4 hours since it depends upon the capacity of the battery, it is argued. PWs 1 and 2 have clearly identified the accused from the Crl.Appeal Nos.2616/2009, 37/2010 & 898/2010 7 court and the identification from the court is the substantive evidence. There is no reason for these witnesses to falsely implicate the accused in a crime of this nature, it is submitted. 16. On hearing both sides and on perusal of the records particularly the charge framed by the court, it is revealed that the articles worth Rs.1,86,000/-, which include 27 sovereigns of gold ornaments, Rs.20,000/- and a watch worth Rs.4000/- were stolen from the bed room of PW1. So the place of occurrence is the bed room of PW1 and the articles were stolen from the said place. But, evidence of alleged eye-witnesses PWs1 and 2 does not reveal that there was any theft of gold ornaments from inside the bed room. According to the charge laid by the police, the stolen articles were kept in the almirah and those were taken out from the almirah kept in the bed room. 17. The charge sheet does not reveal that any articles were stolen from the courtyard of the house. There is also no allegation in the charge framed by the court that any gold ornament was snatched away from the neck of PW2, though as per the charge laid by the police gold ornament was snatched from the neck of PW2. In the absence of allegation in the charge framed by the court that theft was committed from the neck of PW2, it has to be inferred that the case diary does not reveal such overt act. There is nothing on record to Crl.Appeal Nos.2616/2009, 37/2010 & 898/2010 8 show as to why the court omitted to state that theft of gold ornaments was from the neck of PW2 which is of much relevance, on the facts of this case. 18. It appears from the impugned judgment of the trial court that accused were convicted for the act of snatching the gold ornaments from the neck of PW2 and also for commission of theft from the possession of PW2 while she was in the courtyard. But regarding commission of theft of gold ornaments from PW2 either from inside the house or from the courtyard of the house, there is no charge. The attention of the accused was also not drawn to such acts. Such allegations were not brought to the notice of the accused while framing a charge to that effect. 19. It appears from the charge framed by the court that accused nos.1 to 3 were called upon to stand trial on the allegation that all of them committed robbery by committing theft of gold ornaments and other articles from inside the bed room of PW1 and that for the purpose to commit theft, third accused had beaten PW1 with MO1, second accused had threatened PW1 and PW2 by showing a chopper. But, there is no allegation against first accused for having committed the requisite overt act to substantiate offence of robbery against him. Crl.Appeal Nos.2616/2009, 37/2010 & 898/2010 9 20. Robbery is defined under Section 390 IPC. According to Section 390 “in all robbery there is either theft or extortion. Theft becomes robbery, only if, in order to commit theft or in committing theft or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint”. 21. As per the prosecution allegations, first accused had also committed theft of various articles, but absolutely no whisper is made in the charge whether he committed any of the requisite overt acts to substantiate an offence of robbery. To convict a person for robbery it is not sufficient, if a person is proved to have committed theft, but some other overt act also must be committed by him for establishing offence of robbery. 22. There is also another limb for offence of robbery under Section 390 IPC. “Extortion” will also be robbery if the offender commits certain acts. A reading of the charge and the definition of the offence reveals that the overt acts, which are required for making offence of theft or robbery, are not alleged or proved against the first accused. Hence first accused cannot be convicted for offence under Section 397 IPC. The conviction and sentence passed against first Crl.Appeal Nos.2616/2009, 37/2010 & 898/2010 10 accused for offence of robbery are not sustainable on this count itself. 23. Of course, the State Brief did not argue this legal position. But, before confirming a conviction and sentence, it is the satisfaction of the court which is more important. The court must be convinced that prosecution proved all the ingredients of the offence alleged against each of the accused. This responsibility is attached to the trial court also. On going through the judgment of the trial court it can be seen that except a narration of the version given by various witnesses, the court failed to consider the evidence adduced and appreciate it in the proper perspective to decide whether accused committed the alleged offence. 24. The prosecution has called upon the court to infer a commission of theft, in the absence of direct evidence given by PW1 and PW2 regarding taking away of the articles from the almirah in the bed room, though they are the alleged witnesses. In the absence of direct evidence, the prosecution may prove theft by producing evidence relating to possession of stolen articles by accused. Recent possession of stolen articles by the accused can lead to an inference under Section 114 of the Evidence Act that he is either the thief or a receiver of stolen articles. 25. But, in this case, none of the stolen articles were produced and no evidence was adduced to show that any of these articles were Crl.Appeal Nos.2616/2009, 37/2010 & 898/2010 11 in possession of any of the accused on any day after the alleged commission of offence. Therefore, evidence is totally lacking regarding commission of theft from the almirah of the house of PW1. 26. Of course, PW1 has given evidence that gold chain was snatched away from the neck of PW2 by first accused from the bed room. But, as per the prosecution records, there is no such allegation. Further, there is absolutely no whisper about any such overt act committed by first accused, in the charge framed by the court. Therefore, the accused cannot be convicted for commission of theft of gold chain from the neck of PW2, since such an allegation is not brought to the notice of the accused, especially in the absence of any such allegation in the charge submitted by police or in the charge framed by court. As per the charge, theft was from the almirah. 27. According to PW1, it was the third accused who removed the bangles, ring, necklace and studs from the possession of PW2. As per the charge laid by the police third accused had not at any time removed any gold ornaments from the possession of PW2. On the other hand, it was the second accused who had removed the same showing a chopper. There is absolutely no whisper in the charge laid against the accused that any theft had taken place from the courtyard. There is also no case as per the charge sheet by the police that such removal of gold ornaments was from the courtyard of PW1. Crl.Appeal Nos.2616/2009, 37/2010 & 898/2010 12 28. The police report reveals that police has no case that third accused had at any time removed any gold ornaments from the possession of PW2. In the absence of any charge that theft was committed by third accused from the possession of PW2 from the courtyard, he cannot be convicted for commission of theft even though PW1 stated, after three years of the incident, that third accused had committed theft from PW2. 29. In this context, it is also relevant to note that even PW2 herself has no case that gold ornaments were removed by first accused or even the second accused from her possession while they were made to stand in the courtyard. But, her case is that gold ornaments kept in the almirah were taken away while they were standing in the courtyard. In the above circumstances, third accused cannot be convicted for committing theft of gold ornaments from the possession of PW2 while they were standing in the courtyard. 30. The trial court ignored all these relevant facts before the accused were convicted. It is also relevant to note that PW1 identified MO1 as the chopper used by third accused for threatening PW1 by showing it against his neck, as per the chief examination, second accused was the person who threatened him by showing a chopper at his neck and he identified second accused. He had no case in chief examination that third accused had kept any chopper at his neck and Crl.Appeal Nos.2616/2009, 37/2010 & 898/2010 13 threatened him. But, evidence of PW1 reveals that it was the third accused who had kept the chopper against her husband's neck and she identified MO1 as the said chopper. 31. There can be no doubt that there is vital contradiction regarding this aspect which is of great significance. The offender who commits overt act of threatening or commission of hurt on the victim alone will be liable for offence of robbery. In such a situation, neither second accused nor third accused can be said to have committed robbery against PW1, in the light of the contradictory evidence given by PWs 1 and 2. The prosecution failed to establish that either first accused, second or third accused committed the requisite overt act, as stated under Section 390 IPC to constitute offence of robbery. 32. Now, a question arises whether any of the accused committed offence under Section 457 IPC. PWs 1 and 2 categorically stated that all the accused had entered the house and it is in evidence that the door was broke open to enter the house at 2 a.m. on 23.06.2006. To prove this case regarding house breaking at night, there is direct evidence of PWs 1 and 2. But, as discussed earlier, their evidence does not inspire confidence of the court to act upon the same, since their evidence is full of major contradictions, even with respect to the main overt act committed by accused 2 and 3. Crl.Appeal Nos.2616/2009, 37/2010 & 898/2010 14 33. I am not inclined to rely upon the evidence without independent corroboration, especially since the evidence on record reveals the possibility of the neighbours witnessing the incident. It is in evidence that a hue and cry was made by PW2 from the bed room itself. PW1 specifically stated about this fact. It is also specifically stated in evidence that at the time when the alleged victims were kept in the courtyard also, PW2 was crying. It is in evidence that PWs 1 and 2 were held up and restrained at the tip of chopper from the courtyard for about half an hour when first and second accused were allegedly committing theft from the almirah kept in the bed room. 34. So, in all probabilities, there was every possibility for attracting the neighbours to the spot, but none of the neighbours were examined in this case. Learned counsel for second accused pointed out that CW11 is a neighbour and he was cited as a witness to prove that the accused left the place after the incident. CW11 was a witness to the incident, but he was not examined. 35. It is clear from evidence that PWs 1 and 2 were prepared to make any statement to convince the court that accused were involved in the case. It has come out from evidence that third accused was covered with a cloth. But PWs 1 and 2 have gone to the extent of saying that they identified third accused and saw various overt acts allegedly committed by him. They identified third accused from the Crl.Appeal Nos.2616/2009, 37/2010 & 898/2010 15 court during examination. It is not comprehensible how they could identify third accused from the scene. 36. Therefore, the above fact must caution the court while appreciating evidence adduced in a case involving a serious offence under Section 397 IPC. It is based on the evidence of PWs 1 and 2 that the court below convicted all the accused. But, in the light of the various discrepancies and infirmities in the evidence of PWs 1 and 2, I am of the opinion that in the absence of any independent corroboration, it will not be safe for the court to enter a conviction either under Section 457 or 397 IPC against accused. 37. There are various other discrepancies also in the evidence. But, I am not inclined to enter a conviction on the basis of evidence of PWs 1 and 2. Of course, as learned Public Prosecutor pointed out, nothing is brought out from their evidence to show that they had any motive to give false evidence before court against the accused. Lack of any such motive alone cannot be taken as a ground to believe them. This is a case where the witnesses even identified third accused from the court and attempted to convince that he is also involved. 38. From the evidence of PWs 1 and 2, it is clear that they could not see the face of third accused. They also did not state whether there was any identifying feature for being convinced about his involvement in the offence or at the scene. The court cannot be Crl.Appeal Nos.2616/2009, 37/2010 & 898/2010 16 prejudiced only by the fact that accused are involved in various other cases for similar offences. A person can be convicted only if prosecution proves that he committed alleged offences by cogent and convincing evidence. On a consideration of the entire evidence on record, I am satisfied that the prosecution failed to prove the case alleged against the accused. Hence, the conviction and sentence passed against accused 1 to 3 are unsustainable . In the result, the following order is passed: i. The conviction and sentence passed against the appellants (accused nos.1 to