IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 26TH JULY 2011 / 4TH SRAVANA 1933 CRL.A.No. 555 of 2010(D) ------------------------ SC.70/2008 of IVTH ADDITIONAL SESSIONS JUDGE,ADHOC-II, THODUPUZHA CP.154/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, NEDUMKANDOM .................... APPELLANT(S): -------------- 1. RAM OUTHAN CHOTHARI, C.NO.3828, CENTRAL PRISON, THIRUVANANTHAPURAM. 2. BHUVAN, C.NO.3829, CENTRAL PRISON, THIRUVANANTHAPURAM. 3. PRAKASH,C.NO.3830, CENTRAL PRISON, THIRUVANANTHAPURAM. BY ADV. ADV.C.K.JAYAKUMAR[STATE BRIEF] RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/07/2011,THE COURT ON 26/07/2011 DELIVERED THE FOLLOWING: V.K.MOHANAN, J - - - - - - - - - - - - -- - - - - - - Crl.A. No. 555 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of July, 2011 J U D G M E N T The appellants are accused Nos. 1 to 3 in S.C. 70/08 of the Court of 4th Additional Sessions Judge (ADHOC – II) Thodupuzha and the challenge in the appeal is against the conviction and sentence imposed against them under Section 450, 394, 397 r/w 34 IPC and offence under Section 3 read with 25 (1-B)(a) of the Arms Act, 1959. 2. The prosecution case is that on 5.4.2007 at about 12.30 am accused Nos. 1 to 4 (Prakash, Bhuvan, Ram Outhan Chouthari, Pannilal) criminally trespassed into Kuzhikandathil estate building bearing No.III/300 belonging to K.M.R. Estate situated at Vellimala Kara in Anakkara Village of Idukki District for the purpose of committing robbery and in furtherance of their common intention to commit the aforesaid offence, A2 throttled the neck of PW4(Johny Sebastian) who is the manager of the estate and when PW4 cried aloud, A1 to A4 thrust a towel in his mouth, A3 hit him on the right wrist with MO2 iron pipe causing a grievous hurt, A1 criminally intimidated PW4 showing MO7 knife and A4 showing MO1 pistol which is a dangerous Crl.A. No. 555 OF 2010 2 weapon and A1 to A4 thereafter tied PW4 on to a cot using MO2 coir rope. Thereafter A1 to A4 committed robbery by taking away the mobile phone of PW1 worth Rs.8,500/- and currency notes worth Rs.2500/- and also the key of the office room and thereafter they committed theft of currency notes worth Rs.94,000/- from the office. Thus according to the prosecution, the accused have thereby committed offences punishable under Section 450, 394, 397 read with 34 IPC and Section 3 read with Section 25(1-B(a) of the Arms Act, 1959. 3. With the above allegation Crime No.85/07 was registered in the Vandanmedu Police Station for the said offences and on completing the investigation the police filed the report in the Judicial First Class Magistrate court Nedumkandom and on taking cognizance for the said offences, C.P.154/07 was instituted in the said court and the learned Magistrate by his proceedings in C.P.154/07 subsequently committed the case to the Sessions Court, wherein the same was received in file as S.C.70/08 and made over to trial court for disposal. Thus on appearance of the accused who were 4 in Nos. a formal charge was framed against them under Section 450, 394, 397 of IPC and Section 3 read with 25(1-B) (a) of the Arms Act, 1959, which Crl.A. No. 555 OF 2010 3 read over and explained to the accused, and in turn they denied the same and pleaded not guilty. Accordingly, the prosecution adduced its evidence consists of depositions of Pws 1 to 18 and documents Ext.P1 to P26. 13 items of material objects were identified and marked as Mos 1 to 13. On completing the prosecution evidence, the accused were examined under Section 313 Cr.P.C. and they denied the incriminating circumstances and evidences. On conclusion of the trial, the trial court has found that the accused are guilty for the offence charged against them and accordingly all the accused were convicted and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.5,000/-(rupees five thousand only) and in default of payment of fine, they are directed to undergo simple imprisonment for a period of 3 months under Section 450 of IPC. All the accused are further sentenced to undergo rigorous imprisonment for a period of seven years under Section 397 of IPC and also sentenced to undergo simple imprisonment for a period of one year each and to pay a fine of Rs.2000/-(rupees two thousand only) each and in default of payment of fine to undergo simple imprisonment for a period of two months under Section 3 read with 25(1-B) (a) of Arms Act, 1959. No separate sentence is Crl.A. No. 555 OF 2010 4 awarded for the offence under Section 392 of IPC. It is ordered that all the sentences shall run concurrently. It is also ordered that the fine amount if recovered, 50% of the same shall be paid as compensation to PW4 under Section 357(1)(b) of Cr.P.C. It is also ordered that MO1, 7, 10, 11 and 12 shall be confiscated, whereas MO6 is ordered to be returned to PW4. MO2 to 5, MO8, MO9 and MO13 is ordered to be destroyed as value less. It is the above findings and order of conviction and sentence are challenged in this appeal. 4. As the appellants herein are undergoing imprisonment pursuant to the judgment impugned, they preferred this joint appeal from the jail and when the same is received in this court as ordered by this Court, the Registry has appointed Sri. C.K. Jayakumar from the State Brief Panel as counsel to prosecute the appeal for and on behalf of the appellants. Thus, I have heard Adv.Sri. C.K. Jayakumar, counsel for the appellants and Sri. P.A. Salim learned Public Prosecutor. 5. It is relevant to note that the 4th accused in the very same Sessions Case has filed a separate appeal before this Court and by judgment dated 11.12.2009 in Crl.A.1002/09 this Court acquitted the above accused of all the charges levelled against Crl.A. No. 555 OF 2010 5 him basically on the ground that the prosecution has failed to establish the identity of A4 and to prove the guilt against the said accused in the above case. 6. PW1 is the owner of Kuzhikandathil Estate who is not an occurance witness, but the prosecution has got proved Ext.P1 F.I. Statement through him. Thus, on the basis of Ext.P1 F.I. Statement, Ext.P14 FIR was registered. PW2, is the autorikshaw driver who had given lift to the 4 accused persons in the night of 4.4.2007 from Puttadi Junction to Kumali on the request of A2. According to him he left them in front of the forest office at Kumali. PW3 is the person residing near the KMR estate at Vellimala. According to him he roused form sleep in the night of 4.4.07 by PW4, the injured knocking at the door with bleeding. According to PW3 he gave water to PW4 and he told him that two goorkkas who were formerly employed in the estate and two other persons had attacked him and they were armed with iron rod, a pistol and a knife and that they have gone to the office after taking the key. According to PW3 when he went along with PW4 to the office building they found that the office room was completely ransacked and Rs.94,000/- in cash was seen missing. According to PW3 he fetched an autorikshaw by making a phone Crl.A. No. 555 OF 2010 6 call and sent the injured PW4 to the hospital and he had informed the neighbours also. It is the further claim of PW3 that thereafter he went in the jeep in search of ghoorkkas and found them from the vicinity of Kumali Police Station. According to him accused No. 1 and 2 who are ghoorkkas were formerly employed in the estate of PW1. It is the further deposition of PW3 that he himself and others has held the four accused persons in captivity till the Vandanmedu police came and the captives were handed over to the police. 7. PW4 is the main witness of the prosecution who sustained injury in the incident. He is the manager of the estate owned by PW1. He had identified A1 and A2 who were formerly employed as ghorkkas in the very same estate. During his chief examination itself he had given a clear account regarding the entire incident. According to him A1 caught hold of his neck and tried to throttle him and asked him where the money was kept. According to him A1 has also demanded the key of the office room and hit him on the back of his head with iron pipe and thus he sustained a bleeding injury. At that time A3 handed over something to A1 and A3 also hit him on the right wrist with and iron rod causing a fracture of his meta carpel. According to PW4 Crl.A. No. 555 OF 2010 7 when he cried aloud A1 gagged his mouth with a towel and A2 took a coir rope and they tied both his hands and legs. While so, A4 took out a revolver from the pocket of his jacket and threatened him by saying something in Hindi. Thereafter, according to PW4, he was then taken and tied on the cot inside the kitchen. Thereafter the trespassers searched the office room and took away the mobile phone, money and key of the office room and after locking the front door from out side they went away. Thereafter, according to PW4 he somehow untied himself and went out of the house to seek the help of PW3. PW4 during his examination stated that it was A4 who showed MO7 knife and threatened him and A4 was at that time wearing a black overcoat marked as MO8. 8. PW5 is another witness examined to show that he was selling knifes, choppers, axes etc. in Kattappana Town and had sold MO7 steel knife to A1 and A3. PW6 is an attester to Ext.P7 scene mahazar with regard to the bed room of PW4 where the first part of the occurance had taken place and PW7 is a witness to Ext.P3 scene mahazar regarding the office room where the 2nd part of occurance taken place. PW8 is a witness to Ext.P4 seizure mahazar as per which MO9 bag and its contents and Crl.A. No. 555 OF 2010 8 personal belongings of the accused were seized by PW16 the Sub Inspector. PW9 is a witness to Ext.P5 and P6 mahazars prepared by PW17. MO4 shirt and MO5 lunki worn by PW4 at the time of occurance were seized as per Ext.P5 mahazar. As per Ext.P6 mahazar the full sleeve shirt of A2 and an overcoat allegedly worn by A3 and another overcoat allegedly worn by A4 were seized. PW10 is a witness to Ext.P7 mahazar as per which MO2 iron pipe was recovered by PW17 on the basis of the confession made by A1. PW10 has also witnessed the recovery of MO7 knife from the vicinity of the spot from where MO2 iron pipe was seized. 9. PW11 was the medical officer in charge of casualty of St.John's Hospital, Kattappana who examined PW4 at 2.15 a.m. On 5.4.2007. When PW11 was examined he had deposed in terms of the prosecution case and further deposed that as per Ext.P8 wound certificate, PW4 had sustained a lacerated injury of 1 x 3 cms. over scalp, swelling and tenderness on right hand and abrasion over right leg. X-ray revealed undisplayed fracture to the base of second meta carpel of his right hand. 10. According to PW12 the Sub Inspector of SBCID Ernakulam, he defused the ammunition used on MO1 gun and Crl.A. No. 555 OF 2010 9 issued Ext.P9 certificate. He had also deposed that the had taken some gun powder and had forwarded the same to the Forensic Science Laboratory. PW13 is the Assistant Director of Forensic Science Laboratory who issued Ext.P10 certificate to show that MO1 revolver is a serviceable firearm. PW14 who is the Assistant Director of Explosives after examination of MO10 and MO11 gun powder issued Ext.P11 certificate. Ext.P12 scene plan pertaining to the bed room of PW4 and Ext.P13 is the scene plan pertaining to the office room which were marked through PW15 who was the Village Officer of Anakkara Village. 11. PW16 was the Sub inspector, Vandanmedu Police Station who deposed that Ext.P1 F.I. Statement was recorded by CW22 and Ext.P14 FIR registered by CW22, initially for offences punishable under Section 450 and 394 read with Section 34 IPC. It was PW16 who arrested A1 to A4 from the vicinity of Kumali Sales Tax check post at about 3.30 a.m. on 5.4.07. According to him at the time of arrest A3 was holding MO9 bag. A1 and A2 were identified by PW1 and his office staff, as A1 and A2 were formerly employed in the estate. MO9 bag contained currency notes worth Rs.90,500/- and MO1 revolver and MO6 mobile phone were also identified. Ext.P15 to P18 are the arrest memo Crl.A. No. 555 OF 2010 10 of A1 to A4. Ext.P4is the mahazar prepared by PW16 at 3.30 am on 5.4.07 after the seizure of MO9 bag and body search of A1 to A4. 12. PW17 is the then Circle Inspector of Police Nedumkandom Police Station who investigated the case for 2 days that is on 5.4.2007 and 6.4.2007 during which he prepared Ext.P2 scene mahazar to which PW6 is an attester. According to him, the blood stained earth and MO3 piece of coir rope were seized from the scene of crime. PW17 has also prepared Ext.P3 scene mahazar with regard to the office room of which PW7 is the attester. Ext.P5 is the recovery mahazar prepared by PW17 for which PW9 is an attester. He had also seized MO4 shirt and MO5 lunki belonged to PW4 as per Ext.P5 mahazar. PW17 has also prepared Ext.P6 recovery mahazar for the recovery of MO8 overcoat and PW9 is an attester to that mahazar. PW17 further prepared Ext.P7 recovery mahazar on the basis of which MO2 iron pipe was recovered at the instance of A1 and MO7 knife has also taken into custody from the same vicinity. Ext.P21 is the certificate of the Forensic Science Laboratory marked through PW17 to show that MO4 and MO5 dress belonged to PW4 smeared with human blood belonging to 'O' group. Crl.A. No. 555 OF 2010 11 13. PW18 was the Circle Inspector of Police, Nedumkandom Police Station, who laid the report after investigation. Through PW18, Ext.P3 forwarding note was proved. Ext.P24 letter from the Addl. District Magistrate showing that A1 to 4 had no gun license. It was PW18 who filed Ext.P25 report to alter Section by adding Section 397 IPC and Section 3 and 25(1-B) (a) of the Arms Act, 1959. He had also obtained Ext.P26 sanction for prosecution, from the District Collector, to prosecute the accused persons for the offences under the Arms Act, 1959. It is on the basis of the above evidence and material learned Sessions judge has found that the accused have committed the offence for which they faced the charge. 14. The learned counsel for the appellants vehemently submitted that the prosecution has miserably failed to prove the case beyond reasonable doubt. In support of the above argument, the learned counsel invited my attention to Ext.P1 and submitted that as per Ext.P1, the same is recorded from the house of PW1 whereas PW16, says that it was recorded from the place of occurrence. Another point raised is that as per Ext.P6 which prepared by PW17 and marked through PW9, it is a full Crl.A. No. 555 OF 2010 12 sleeve shirt, but according to the counsel in Ext.P22 property list no such shirt is mentioned. It is also the submission of the learned counsel that there is no evidence to show that Rs.94,000/- was kept in the estate office. It is further argued that no independent witness is examined to prove the incident. It is also the submission of the learned counsel that PW4 has not claimed that he had prior acquaintance with A3 and therefore, the prosecution has failed to establish the identity of A3 especially when no test identification was conducted. It is also the submission of the counsel for the appellant that regarding the arrest, there is no proper and convincing evidence. It is pointed out that when PW3 says that arrest was from the Kumali bus stand, according to PW8, arrest was from the Kerala Tamilnadu boarder. It is also the case of the learned counsel that according to PW4 it was A1, who inserted towel on the mouth on PW4 but the prosecution case is that A1 to A4 involved in the same act. Another point raised by the counsel is that, the evidence of PW4 can not be acted upon because according to him, he had seen the accused removing the mobile phone from the front room, while he was in the kitchen. But according to PW4, he cannot see from the kitchen what happening in the front Crl.A. No. 555 OF 2010 13 room. It is also the submission of the learned counsel that, the court has failed in properly questioning the accused u/s.313 of Cr.P.C. Since the questions were put to the accused in Malayalam even though, the accused Nos. 1 and 2 are Hindi speaking persons. The last point raised by the learned counsel is that the preparation of Ext.P20 property list cannot be believed because it is humanly impossible to prepare such list on the date of arrest as claimed by the prosecution. Thus, according to the learned counsel the prosecution has failed to establish the case against the accused beyond reasonable and therefore, the accused entitled to an acquittal. 15. On the other hand, P.A.Salim, learned Public Prosecutor submitted that the entire incident is established through the evidence of the injured witness namely PW4, who got prior acquaintance with A1 and A2 and he had identified the accused in the court. According to the learned counsel evidence of PW4 is free of any infirmity or contradiction and there is nothing wrong in acting upon the evidence of PW4. The learned Public Prosecutor further submitted that, the entire prosecution case is not depending upon the evidence of PW4 alone and there are other documentary evidence and also evidence of other Crl.A. No. 555 OF 2010 14 independent witness. The learned Public Prosecutor submitted that immediately after the incident the accused were catched red handed and they were arrested and taken into custody with the properties which forcible taken from the possession and custody of PW4. Beside, the above evidence the prosecution has also adduce evidence through PW2, PW3 and PW11 to show that immediately after the incident, the injured was taken to the hospital and he had given treatment for the injury sustained by him at the hands of the accused. The learned Public Prosecutor submitted that PW3, the neighbor of PW4, when he was informed by PW4 about the incident, he telephonically contacted PW2, who in turn came with an auto rickshaw as directed by PW3 and PW2 took PW4 to the hospital at Kattappana wherein PW11 treated PW4 for the injuries noted in Ext.P8 wound certificate. So according to the learned Public Prosecutor, the above evidence are sufficient guarantee for the prosecution case and the involvement of the accused in the commission of the offences and therefore, the learned Sessions Judge, is perfectly correct and justified in convicting the accused. Thus, according to the learned Public Prosecutor no interference is warranted with the above order of conviction and sentence. Crl.A. No. 555 OF 2010 15 16. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the learned Public Prosecutor. I have gone through the evidence and materials on record. 17. In the light of the facts and circumstances involved in this case, and evidence on record and in the light of the rival pleadings, the question to be considered in this appeal is whether the conviction and sentence imposed against the appellants who are accused Nos.1 to 3 are correct or not. In this juncture, it is pertinent to note that while dealing with the appeal that Crl. Appeal No.1002/2009 preferred by the 4th accused, this Court has found that the prosecution has miserably failed to show that A4 was one among the assailants. Accordingly, A4 was acquitted. But as far as the present appellants/accused are concerned, it can be seen that the prosecution has clearly established the identity of A1 to A3 and succeeded in proving the overt act of the above appellants/accused in commission of the offence. It is crystal clear from the evidence that accused Nos.1 and 2 known to PW4 as they were employed as security guards in the estate of PW1, where PW4 was working as the manager. It is true, that PW4 Crl.A. No. 555 OF 2010 16 has no prior acquaintance with A3 as in the case of A4. But it is relevant to note that according to PW17 as per Ext.P6, a full sleeve shirt worn by A3 and an overcoat worn by A4 were seized and those materials were produced before the court as per Ext.P22 property list. The seizure, as Ext.P6 was also proved through PW9. It is also proved that immediately after the incident, the Police recovered MO9 bag, which contained stolen currency amounting of Rs.94,500/-, from the possession of A3. PW4 has identified A3 in the court, when he was giving evidence that too after expiry of 2 years from the date of occurrence, and such evidence of PW4, is further supported by the seizure of the currency note from the possession of A3 immediately after the crime. Therefore, the benefit granted by this court in favour of A4 cannot be extended in favour of A3 connected with the identity of A3. Thus, noted consideration of the case at hand, I am of the view that the prosecution has succeeded in establishing the identity of A1 to A3 as the assailants who inflicted injury on PW4 and stolen the currency amounting to Rs.94,500/-. 18. When PW1 was examined he had deposed that he gave Ext.P1 FI Statement to PW16. PW1 has no claim that he had Crl.A. No. 555 OF 2010 17 witnessed the entire incident and his own admission itself is to the effect that he got the information from one of his labour and also on contacting the persons who accompanied PW4, when PW4 was removed to the hospital. Therefore, those variations regarding the place from where Ext.P1 was recorded has no consequence at all. Another point raised by the counsel is that there is no full sleeve shirt as per Ext.P22 property list. But it is relevant to note that though in Ext.P6 it is stated as one full sleeve shirt there is no description of the shirt in Ext.P22 as to whether it is full sleeve or half sleeve but it is categorically stated that in Ext.P22 that there is a white shirt. So the point raised by the counsel in this connection is not sufficient to dis- believe the prosecution case especially when a while shirt available as per Ext.P22. It is clear from the evidence of PW1 the owner of the estate and the manager, PW4 that PW4 has kept 94,000/- rupees in the office. I find no reason to dis-believe them especially, when the said currencies were recovered from the possession of A3 at that time of his arrest who was found in company of A1 and A2 that too immediately after the incident. Considering the time and place of occurrence as stated by the prosecution and especially in the nature of