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2025 DIGILAW 1714 (KER)

Anzar S/o Saved v. State of Kerala

2025-06-25

A.BADHARUDEEN

body2025
JUDGMENT : A. BADHARUDEEN, J. 1. The conviction and sentence imposed against the 2 nd accused as per the judgment dated 24.09.2014 in S.C. No.1706/2011 on the files of the Additional District and Sessions Court-V, Kollam are under challenge in this appeal filed under Section 374 (2) of the Code of Criminal Procedure, 1973 , by the 2 nd accused. The State of Kerala, represented by the Public Prosecutor is arrayed as the sole respondent herein. 2. Even though, this appeal has been filed as early on 01.12.2014, the counsel for the appellant was not available for hearing. Accordingly, Adv.Gayathri Krishnan is appointed as the Amicus Curiae, in this matter. But, her appointment is modified as that of State Brief. 3. Heard the learned State Brief, Adv.Gayathri Krishnan, appearing for the appellant and the learned Public Prosecutor, in detail. Perused the verdict under challenge and the records of the trial court. 4. Parties in this appeal shall be referred as ‘prosecution’ and ‘accused’ hereafter. 5. The prosecution case is that, at about 11.45 p.m. on 25.04.2007, while PW1 and PW12 were walking through the road, accused Nos.1 to 6 reached near them in motorcycles and beat PW12 with an iron rod causing hurt to him and robbed away gold ornaments worth Rs.25,000/- belonged to PW1. It is on this premise, the prosecution alleges commission of the offence punishable under Section 395 of the IPC , by accused Nos.1 to 6. Among the six accused persons, the 1 st accused was tried earlier, since the other accused were not available for trial. Thereafter, the case against accused Nos. 2, 3 and 6 was refiled as S.C. No. 1706/2011. The trial court recorded evidence confined to that of PWs 1 to 12, Exts.P1 to P11(a) and MOs 1 to 7. After the prosecution evidence, accused Nos.2 and 6 (arrayed in this case as accused Nos.1 and 3) absconded and their presence for further trial could not be secured. Accordingly, their case was split up and the trial against the appellant herein, who was the 2 nd accused in S.C. No. 1706/2011 (originally arrayed as the 3 rd accused in the crime) was proceeded. Even though, the accused was given opportunity to adduce defence evidence after questioning him under Section 313(1)(b) of Cr.P.C , he did not opt to adduce any defence evidence. 6. Even though, the accused was given opportunity to adduce defence evidence after questioning him under Section 313(1)(b) of Cr.P.C , he did not opt to adduce any defence evidence. 6. On appreciation of evidence, the trial court found that the 2 nd accused was guilty for the o under Section 395 of the IPC . Accordingly, the 2 nd accused was convicted for the said offence and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.5,000/-. In default of payment of fine, the 2nd accused was sentenced to undergo rigorous imprisonment for a period of three months more. Set off was allowed to the accused, as per law. 7. While challenging the conviction and sentence imposed by the trial court against the 2 nd accused/appellant, the learned State Brief would submit that, in this matter, the identity of the appellant, who is the original 3 rd accused, is not proved with certainty, to guilty for the offence alleged to be committed by the prosecution. That apart, no records produced by the Police to show the arrest of the 2 nd accused/appellant. Therefore, his arrest, in fact, is not proved. Apart from that, it is argued that, even though MOs 1 to 3 alleged to be robbed away by the accused were taken into custody, on disclosure of the same by the 2 nd accused, under Section 27 of the Evidence Act , the owner of the shop where from the recovery effected was not examined. Accordingly, the learned State Brief canvased acquittal of the 2 nd accused/appellant, finding flaws in the prosecution evidence. 8. Dispelling this argument, the learned Public Prosecutor argued that, going by the evidence given by PW1 as well as PW12, the identity of the accused at the dock as well as the identity of the accused at the Police Police Station otherwise is well established. That apart, no serious challenge raised disputing the identity of the accused during trial, at the instance of the accused. Therefore, the identity of the 2 nd accused is well established, so that this challenge would not succeed. Regarding the recovery of MOs 1 to 3, the learned Public Prosecutor argued that, the same is proved by the evidence of the Investigating Officer as well as the witnesses to the recovery mahazar. Therefore, there is no reason to doubt the same. Regarding the recovery of MOs 1 to 3, the learned Public Prosecutor argued that, the same is proved by the evidence of the Investigating Officer as well as the witnesses to the recovery mahazar. Therefore, there is no reason to doubt the same. It is also pointed out that, arrest of the accused could not be ensured without preparing arrest memo. But, the same was not tendered in evidence and the same is a mistake done by the Public Prosecutor, who conducted the case. However, non production of arrest memo as part of evidence by itself is not a reason to acquit the accused, if his guilt was proved by the available evidence. Therefore, the conviction and sentence imposed by the trial court against the 2 nd accused/appellant herein do not require any interference. 9. In view of the rival submissions, the points arise for consideration are: 1. Whether the trial court went wrong in finding that the 2 nd accused/appellant committed the o punishable under Section 395 of the IPC ? 2. Whether the verdict of the trial court would require interference? 3. Order to be passed? 10. Point Nos.1 and 2:- The crucial evidence regarding the occurrence in this case is that of PW1 as well as PW12. PW1 examined in this case is one Shylaja and according to her, she knew the accused at the dock and the occurrence (at the time of trial, accused Nos. 2, 3 and 6 were at the dock). Though, she did not remember the date of occurrence, when it was suggested, she stated that the occurrence was at 11.00 p.m. on 25.04.2007. The evidence of PW1 is that, the place of occurrence was at Plavinmoodu Junction in Paravoor-Parippally Road. According to her, at the time of occurrence, she along with her husband, PW12 were coming out of the house of the sister of PW12 and she was carrying their child. While they were walking from Meenambalam, six persons came from behind in bikes and asked the house of one Babu. When PW12 showed the house, the accused persons moved forward. Thereafter, the accused came back and beat PW12 on his head by using an iron rod. PW1 ran therefrom carrying the child and fell down. By the time, the accused persons taken away 3.5 sovereigns of gold chain and the studs of her right ear. When PW12 showed the house, the accused persons moved forward. Thereafter, the accused came back and beat PW12 on his head by using an iron rod. PW1 ran therefrom carrying the child and fell down. By the time, the accused persons taken away 3.5 sovereigns of gold chain and the studs of her right ear. Even though, during cross-examination, some minor omissions extracted regarding the total number of the accused persons, nothing extracted to disbelieve the evidence of PW1. PW1 identified accused Nos.2, 3 and 6 at the dock and the 3 rd accused so identi herein. PW1 given evidence further that before dock identification, she identified the accused persons at the Police Station also. During cross-examination of PW1, the identity of the accused was not put under serious challenge, by questioning PW1, as to whether PW1 was familiar with the accused or with suggestion that she had any occasion to identify the accused, as she did not know the accused prior to the occurrence. 11. PW12, who is the husband of PW1 also supported the occurrence in similar terms as deposed by PW1 regarding the occurrence. Ext.P6 is the First Information Statement given by him before the Investigating Officer, which led to registration of this crime and PW12 supported Ext.P6 statement given by him. PW12 also identified the accused at the dock and stated that he had identified the accused, after the occurrence at the Police Station itself. During cross-examination of PW12 also, the identity of the 2 nd accused/appellant was not put under challenge, as already discussed. 12. Therefore, it could not be held that there was no proper identification of the accused in this case to hold that the prosecution failed to identify the accused. Apart from that, PW12 deposed that he sustained injuries in the occurrence. PW2 the doctor, K.Sthanu Kumar was examined to prove Ext.P1 wound certificate prepared by Dr.Binu, who was working as the Causality Medical Officer at Safa Hospital, Parippally during the relevant time, after identifying his handwriting and signature therein. PW2 deposed in support of Ext.P1 and the injuries sustained by PW12 viz. lacerated wound on scalp 1x4 c.m., lacerated wound on scalp 1x3 c.m. and contusion right shoulder. He also opined that injuries could be caused as alleged. 13. PW2 deposed in support of Ext.P1 and the injuries sustained by PW12 viz. lacerated wound on scalp 1x4 c.m., lacerated wound on scalp 1x3 c.m. and contusion right shoulder. He also opined that injuries could be caused as alleged. 13. PW11 is the Investigating Officer, who conducted the investigation in this crime, from 01.03.2007 till 30.10.2009 and recorded the confession statement of the 2 nd accused. PW11 deposed that, during questioning the 2 nd accused/the appellant herein gave statement that, he pledged MOs 1 to 3 at S.R.M. Finance at Puthenchantha Junction and the 2 nd accused was ready to show the same, if he was brought there. Accordingly, PW11 accompanied the 2 nd accused/appellant and recovered MOs 1 to 3 as shown by the accused by preparing Ext.P11 recovery mahazar and the statement of the 2 nd accused, which led to recovery is marked as Ext.P11(a). He also identified MOs 1 to 3 as the studs. During cross-examination, the confession statement as well as the authorship of concealment as disclosed by the 2 nd accused/appellant as well as his arrest were deposed by PW11. 14. Coming to the other evidence, PW4 denied having seen the incident and turned hostile to the prosecution. PW5 is an attester to Ext.P4 recovery mahazar of iron rod marked as MO7. During cross examination he stated that it was an iron pipe. PW6 stated that he was familiar with PW1, Shailaja and PW12 Sunil Kumar. He saw the incident while standing at a distance, half furlong away. When he reached the spot, he saw PWs 1 and 12 with injuries. They informed that the ear stud and a gold chain were lost. But, his evidence is that, he did not see the accused. PW7 is an attester to the scene mahazar and it is marked as Ext.P5. PW8 is an appraiser of gold ornaments. On 9.7.2007 he verified the gold ornaments and ascertained its purity. He identified MOs 1 to 3. PW9, the then Sub Inspector of Police at Parippally police station testified that, on 26.4.2007 he recorded the FI statement given by PW12 Sunil Kumar, marked as Ext.P6. On the basis of Ext.P6 statement he registered the case as Crime No:134/2007 and the FIR prepared by him is marked as Ext.P7. The investigation was conducted by Circle Inspector and he supported the investigation. 15. On the basis of Ext.P6 statement he registered the case as Crime No:134/2007 and the FIR prepared by him is marked as Ext.P7. The investigation was conducted by Circle Inspector and he supported the investigation. 15. Now, the question arises for consideration is, whether the prosecution established the ingredients to attract the offence punishable under Section 395 of IPC ? 16. Section 395 of IPC deal with punishment for dacoity, wherein it has been provided that, whoever commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. 17. Section 391 of IPC defines the offence of dacoity, wherein it has been provided that, when five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit “dacoity”. 18. So, when robbery is committed by five or more persons, the same is dacoity and robbery is defined under Section 390 of IPC . Section 390 of IPC explains when theft becomes robbery. It has been provided that, theft is “robbery” if, in order to the committing of the theft, or in committing the 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. 19. An analysis of section 390 of the Indian Penal Code, 1860 , theft may constitute robbery, when the prosecution establishes the following ingredients: (a) if in order to the committing of theft, or (b) in committing the theft: or (c) in carrying away or attempting to carry away property obtained by theft: (d) the offender for that end i.e., any of the ends contemplated by (a) to (c). (e) 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 instant wrongful restraint. 20. (e) 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 instant wrongful restraint. 20. In other words, theft would only be robbery if for any of the ends mentioned in (a) to (c) the offender voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurl or instant wrongful restraint. If the ends does not fall within (a) to (c) but, the offender still causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint, the offence would not be robbery. Therefore, it is essential that (a) or (b) or (c) has to be read conjunctively with (d) and (e). It is only when (a) or (b) or (c) co-exist with (d) and (e) is there a nexus between any of them and (d) and (e) would theft amount to robbery. 21. Here, the evidence available would indicate that altogether six accused persons, after sharing common intention to commit robbery, caused injuries to PW12 and robbed away gold ornaments belonged to PW1. In their attempt to commit robbery, they asked the house of one Babu to PW12. When PW12 showed the house, the accused persons moved forward and came back soon. Then, they beat PW12 on his head by using an iron rod, which is marked as MO7. PW1 scared to see this, ran away from the place of occurrence carrying the child and she fell down. When, PW1 fell down, the accused persons taken away MOs 1 to 3 belonged to PW1 and the same were recovered on the basis of confession statement given by the 2 nd accused/appellant herein and the recovery was proved. In such a case, there is no reason to hold that the trial court went wrong in finding that the 2nd accused/appellant herein committed the offence punishable under Section 395 of IPC , where PW12 sustained injuries as deposed by him and the injuries sustained and the treatment underwent were proved by examining PW2. While addressing the contention raised as regards to proper identification of the appellant, PW1 and PW12 identified him at the dock and later the stolen items viz. While addressing the contention raised as regards to proper identification of the appellant, PW1 and PW12 identified him at the dock and later the stolen items viz. MOs 1 to 3 recovered at his instance under Section 27 of the Evidence Act . Further, the identity was not disputed before the trial court as already discussed. Therefore, the challenge on the ground of identity raised before the Appellate Court necessarily fail. Similar is the position with regard to non marking of arrest memo. Merely because the Prosecutor failed to tender the arrest memo in evidence, that by itself is insufficient to acquit an accused, where evidence is available to prove the guilt of the accused. Non examination of the owner of S.R.M. Finance also is not fatal to the prosecution, as the recovery of MOs 1 to 3 was proved satisfactorily. That apart, PW1 deposed about release of the same to her from the Court. Therefore, the ingredients to attract an offence punishable under Section 395 of IPC are established by the prosecution beyond reasonable doubt. Thus, the conviction imposed against the 2 nd accused/appellant by the trial court does not require any interference. 22. Coming to the sentence imposed against the 2 nd accused/appellant herein, the trial court imposed rigorous imprisonment for a period of two years and to pay a fine of Rs.5,000/- and in default of payment of fine, the 2nd accused was sentenced to undergo rigorous imprisonment for a period of three months more. Considering the gravity of the offence and the manner in which the same was done, the 2 nd accused/appellant herein does not deserve much leniency in the matter of sentence. However, in the interest of justice, I am inclined to reduce the sentence for a period of eighteen months and to pay a fine of Rs.5,000/-. 23. Point No.3:- In the result, this appeal is allowed in part. The conviction imposed against the 2 nd accused/appellant herein by the trial court stands confirmed and sentence stands modified, whereby the 2nd accused/appellant herein is sentenced to undergo rigorous imprisonment for a period of eighteen months and to pay fine of Rs.5,000/- (Rupees Five Thousand Only). In default of payment of fine, the 2nd accused/appellant herein shall undergo rigorous imprisonment/default imprisonment for a period of one month. In default of payment of fine, the 2nd accused/appellant herein shall undergo rigorous imprisonment/default imprisonment for a period of one month. The 2 nd accused/appellant herein is directed to appear before the trial court, forthwith to undergo the modified sentence. In default to do so, the trial court is directed to execute the sentence, as per law, without fail. 24. Registry is directed to forward a copy of this judgment to the trial court for information and compliance, forthwith.