IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 9TH DECEMBER 2009 / 18TH AGRAHAYANA 1931 CRL.A.No. 1432 of 2009(D) ------------------------- SC.369/2007 of ADDL.SESSIONS JUDGE, ADHOC-III, N.PARAVUR CP.43/2007 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... APPELLANT(S): APPELLANT ---------------------------------------------- KANNAN @ MILITORY KANNAN,C.NO.7503, CENTRAL PRISON, VIYYUR,THRISSUR. BY ADV. ADV.B.PREMOD [STATE BRIEF] RESPONDENT(S): --------------------------- STATE OF KERALA REPRSENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. JAYASOORYA BHARATHAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.Appeal.No.1432 of 2009 = = = = = = = = = = = = = = Dated this the 9th day of December, 2009 JUDGMENT In this appeal, preferred from the Central Prison Viyyur, the appellant(Kannan @ Military Kannan), who was the 3rd accused in Crime No.168 of 2006 of Thrikkakara Police Station for offences punishable under Sections 307 and 397 read with 34 IPC and who alone stood trial before the Additional Sessions Judge, Adhoc-III, N.Paravur in S.C.No.369 of 2007, challenges the conviction entered and the sentence passed against him for the aforementioned offences. 2. The case of the prosecution can be summarised as follows:- The three accused persons had previous enmity towards PW2 who had objected to the sale of ganja by Vinod @ Chundeli (A2). On account of the said enmity, the three accused persons in furtherance of their common intention to commit robbery, after Crl. Appeal No.1432/09 2 causing the death of PW2 on 2.5.2006, at about 11 a.m., on the T.V.Centre Road, Near Madison Hotel, armed with a knife, chilly powder etc. attacked PW2, who was walking along the road holding a bag containing Rs.1,90,000/-. A3(Kannan) caught hold of PW2 from behind and A1(Ratheesh) stabbed on the right side of his belly with a knife, which is a dangerous weapon and voluntarily caused grievous hurt to PW2. At that time A2 sprinkled chilly powder on the face of PW2, beat and fisted PW2. The 3rd accused (the appellant herein) attempted to rob PW2 of his bag containing Rs.1,90,000/-. The accused have thereby committed offences punishable under Sections 307 and 397 read with 34 IPC. 3. The appellant (3rd accused) alone stood trial before the court below. On the appellant pleading not guilty to the charge framed against him by the court below for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution Crl. Appeal No.1432/09 3 altogether examined 16 witnesses as P.Ws 1 to 16 and got marked 11 documents as Exts. P1 to P11 and 3 material objects as MOs. 1 to 3. 4. After the close of the prosecution evidence, the appellant was questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. 5. The appellant did not adduce any defence evidence when called upon to enter on his defence. 6. The learned Addl. Sessions Judge, after trial, as per judgment dated 03.06.09 found the appellant guilty of the offences charged against him. For the conviction under Section 307 read with 34 IPC, he was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.50,000/- (Rupees fifty thousand only) and on default to pay the fine, to suffer rigorous imprisonment for three years. The same sentence was imposed on the appellant for Crl. Appeal No.1432/09 4 the conviction under Section 397 read with 34 IPC. Substantive sentences were directed to run concurrently. It is the said judgment which is assailed in this appeal. 7. I heard Adv. Sri.B.Pramod, the learned counsel appearing for the appellant on State Brief and the learned Public Prosecutor. 8. After hearing both sides in detail and after a careful re-appraisal of the oral and documentary evidence, I am of the view that the prosecution has not succeeded in bringing home the guilt of the appellant beyond reasonable doubt. Going by Ext.P1, the First Information Statement given by PW2, there were only two assailants and it was Vinod @ Chundeli (A2 in the court charge) who had stabbed him on the side of his belly and the companion of Vinod had sprinkled chilly powder on his face. But when we come to the final report we find the names of three culprits namely Ratheesh, Vinod @ Chundeli Vinod and Kannan @ Military Kannan (the appellant). Specific overt acts are attributed to Crl. Appeal No.1432/09 5 each one of them in the final report. A3 (the appellant) is alleged to have caught hold of PW2 from behind and A1 is alleged to have stabbed PW2 on the right side of his belly and A2 is alleged to have robbed PW2 of his bag containing cash worth Rs.1,90,000/- . As against this, what PW2, the solitary eye witness examined in the case, would say initially in his chief examination is that the appellant (A3) stabbed him from behind and sprinkled chilly powder on his face. But during cross-examination at Page 9 of his deposition PW2 corrected himself by saying that he got confused and actually it was Ratheesh (A1 in the charge sheet) and not the appellant who had stabbed him and his statement in chief examination was given under a mistake and that all the 3 accused persons were present. Even assuming that it was the other two persons who committed the overt acts alleged and the appellant was only present there, from the mere presence of a person it cannot be necessarily be inferred that such a person was acting in Crl. Appeal No.1432/09 6 furtherance of the common intention of the accused persons. When from the witness box, PW2 has stated that no overt act was committed by the appellant and he has no case that the appellant had committed any act in conformity with the prosecution case, the court below was not justified in convicting the appellant merely because he was present at the scene of occurrence. Moreover, it must be remembered that PW2 has no case that he had any previous acquaintance with the appellant. Hence, the identification of the appellant in Court by PW2 after about 3 years of the occurrence was absolutely valueless (See Kanan V.State of Kerala (AIR 1979 SC 1127). The charge framed by the court below also would attribute the act of stabbing to the appellant without there being any material in support of the same. But the victim (PW2) frankly confessed during cross examination that it was not the appellant but it was Ratheesh who had stabbed him. If so, the conviction entered and the sentence passed against the appellant on Crl. Appeal No.1432/09 7 the premise that he had committed the aforesaid offences was clearly unsustainable and is accordingly dislodged. The appellant is found not guilty of the offences punishable under Sections 307 and 397 read with 34 IPC and is acquitted thereunder. He shall be released from prison forthwith, unless his continued detention is found necessary in connection with any other case against him. This Criminal Appeal is allowed as above. Dated this the 9th day of December, 2009 V. RAMKUMAR, JUDGE sj Crl. Appeal No.1432/09 8 Gist of the Judgment The Appellant, who was the 3rd accused in Crime No.168 of 2006 of Thrikkakara Police Station and who was the sole accused who stood trial before the Additional Sessions Judge, Adhoc - III, N.Paravur in S.C.No.369 of 2007 is found not guilty of the offences punishable under Sections 307 and 397 read with 34 IPC and is acquitted thereunder. He shall be released from prison forthwith, unless his continued detention is found necessary in connection with any other case against him. In the result this Criminal Appeal is allowed as above. Dated this the 9th day of December, 2009 V. RAMKUMAR, JUDGE sj