Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 20TH DAY OF DECEMBER 2023/29TH AGRAHAYANA, 1945 CRL.A NO. 92 OF 2018 AGAINST THE JUDGMENT DATED 20.11.2017 IN SC NO.165 OF 2016 OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE-II, PATHANAMTHITTA CRIME NO.139/2005 OF THIRUVALLA POLICE STATION, PATHANAMTHITTA APPELLANT/1ST ACCUSED: NAZEEMA, D/O.ASAINAR, THEKKAKATHU VEEDU, NEDUVA AMSAM, CHITTIPPADY DESOM, ALUNKAL BEACH. BY ADVS.SRI.K.N.ABHILASH SRI.SUNIL NAIR PALAKKAT SRI.M.M.ALIYAR SRI.M.A.AHAMMAD SAHEER RESPONDENT/STATE/COMLAINANT: STATE OF KERALA REPRESENTED BY THE SUB-INSPECTOR OF POLICE, THIRUVALLA, IN CRIME NO.139/2005, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM -682 031. BY SMT.NIMA JACOB, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.05.2023, THE COURT ON 20.12.2023 DELIVERED THE FOLLOWING: -:2:-
MARY JOSEPH, J.
----------------------- ----------------------- Dated this the 20th day of December, 2023
JUDGMENT
The appeal on hand is preferred against a judgment
passed by Additional Sessions Court-II, Pathanamthitta (for short ‘the trial court’) in S.C.No.165/2016.
2. The appellant herein is the 1st accused in the
above case. She was found guilty for the offence punishable under Section 394 of Indian Penal Code, 1860 (for short ‘the IPC’) and convicted and sentenced to undergo Rigorous Imprisonment for a term of seven years and to pay fine of ₹1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of 6 months. She was found not guilty for the offence punishable under Sections 328 and 381 IPC. She was also directed to have the benefit of set off for the period already
-:3:- undergone by her in custody during trial. 2nd accused was found not guilty for the offences punishable under Sections 328, 381 and 394 read with Section 34 IPC and was acquitted under Section 235(1) of Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C’).
3. As per the prosecution case, the 1 st accused was attending CW1 as a home nurse at Pushpagiri Medical College Hospital, Thiruvalla. On 17.12.2004 at about 12 noon sleeping pills were administered by the 1 st accused on
CW1 by mixing it with the food. Thereafter when CW1 slept, 1st accused committed theft of gold ornaments worth ₹22,500/- worn by CW1, a wrist watch worn by her and cash worth ₹25,000/- kept in the Almirah of the said room. At about 3 p.m. on 18.12.2004 the stolen properties were entrusted to the husband of the 1 st accused, who was the
2nd accused. The 2nd accused took ₹15,000/- therefrom and exchanged the gold ornaments at the jewellery of CW10 and thereafter pledged those with Muthoot Bank, -:4:- Mavoor Road, Kozhikode. It was alleged further that the sleeping pills administered were entrusted to the 1 st accused by the 2nd accused. Therefore, the 1st and 2nd accused were alleged to have committed the offences punishable under Sections 328, 381 and 394 read with Section 34 IPC. The case was registered by the Circle Inspector of Police, Thanoor as Crime No.26 of 2005 of Parappanangadi Police Station. The case was forwarded to CW15, the Sub Inspector of Police, Thiruvalla and a case
was registered at that Police Station. The case was investigated, during which course, the accused were arrested and produced before the court respectively on 09.03.2005 and 16.03.2005. They were then given in the custody of the police. On completion of the investigation a final report was laid by CW15 on 28.06.2005 against the accused for offences punishable under Sections 328 and
381 read with Section 34 IPC. The Final Report was laid before Judicial First Class Magistrate Court, Thiruvalla. -:5:-
4. The offence under Section 328 IPC incorporated
thereunder being an offence triable by Court of Sessions, the case was committed by Judicial First Class Magistrate Court, Thiruvalla to Court of Sessions, Pathanamthitta by
proceedings initiated as CP No.52/2008. The case was taken on file by Court of Sessions, Pathanamthitta as SC No.428/2008 and thereafter it was made over to Additional Court of Sessions-II, Pathanamthitta (for short ‘the trial court’) for trial and disposal. The case was taken on file by the trial court as SC No.428/2008. The accused absconded and therefore the case was transferred to the Long Pending Register, as LP No.1/2014. On surrender of the accused,
LP No.1/2014 was renumbered as SC No.165/2016. Copies of all relevant records were furnished to the accused by the trial court. A counsel was appointed by District Legal Service Authority to provide legal aid to the accused at the expense of the State. While defending the case, charge was framed against accused for offences -:6:- under Sections 328, 381, 394 read with Section 34 IPC, after hearing the learned prosecution and defence counsel and having due consideration of the documents produced in the case. The charge framed was read over and explained to each of the accused. They pleaded not guilty and claimed to be tried.
5. Prosecution examined PWs 1 to 9, marked Exts.P1 to P13 and identified MOs 1 to 3.
6. The accused were examined by the trial court under Section 313(1)(b) Cr.P.C with reference to the incriminating circumstances brought by the prosecution in
evidence during trial against them. Each of them denied the questions put to them. 1st accused had taken a stand of innocence contending that he has not committed any of the offences. Her case was that her name is Shalu Beevi and the police has falsely implicated her in the case on a misunderstanding that her name is Nazeema. The 2nd accused also maintained a stand of false implication and -:7:- innocence. Thereafter the learned Public Prosecutor as well as the defence counsel were heard. Grounds having not been made out to record an order of acquittal of the accused under Section 232 Cr.P.C, each of them were called upon to enter on their defence. They did not adduce any evidence.
7. PW1 was the daughter of CW1. She adduced
evidence strictly in tune with the allegations raised by the prosecution and identified the 1st accused as well as her gold chains (3 in numbers) and gold bangles (3 in numbers), which are marked in evidence as MO1 and MO2
series. 1st accused was brought to the hospital by PW2 where CW1 was undergoing treatment. PW2 also identified the 1st accused. According to PW2 1st accused was brought from Babu Enterprises to the hospital. Proprietor of Babu Enterprises, Changanassery was examined as PW3 and he also adduced evidence in tune with the prosecution case.
He also identified the 1st accused. Administrator of -:8:- Pushpagiri Hospital, Thiruvalla gave evidence as PW4. During examination he deposed facts contrary to those as spoken by him during examination under Section 161 Cr.P.C and therefore was declared as hostile. The Circle Inspector of Police, Thanoor Police Station was examined as PW5. He deposed that on the basis of the confession statement given by the 1st accused to him, a Quartz watch was recovered from a rental house where the 1st accused was residing. He also deposed to have registered Crime No.26 of 2005 against the accused at Parappanangadi Police Station. The FIR in the case and the seizure mahazar prepared at the time of seizure of the Quartz watch were marked through him in evidence respectively as Exts.P1 and P2. A report was prepared and filed before the trial court seeking to add Section 328 IPC and it is marked in evidence through PW5 as Ext.P3. The confession statement recorded from the 1 st accused, the relevant part of which formed the basis for the recovery of -:9:- the Quartz watch was marked in evidence as Ext.P4. 1 st accused was also identified by him.
8. An employee of Alappadu Jewellery, Kozhikode was also examined as PW6. Admittedly Ext.P5 seizure mahazar
was attested by him. He deposed that he was present when the jewels were seized and labels affixed on it from the Jewellery, after its seizure. An employee of Muthoot
Bank was examined as PW7. Admittedly jewels were received by him from the 2nd accused. The signature found in Ext.P6 mahazar was also admitted as authored by him. The jewels were weighed in front of the Sub Inspector of Police, Thiruvalla Police Station and the 2 nd accused. According to PW7, the accused was a regular visitor of Muthoot Bank and thus, he has acquaintance with him and
therefore identified him. Another employee of Muthoot Bank, Kozhikode was examined as PW8. Admittedly he signed Ext.P6 and deposed that the jewellery was pledged by the 2nd accused in the Mavoor road branch of the bank. -:10:- The receipt given from the bank while pledging the gold ornaments was identified by PW9. The FIR registered at Thiruvalla Police Station was marked through him as
Ext.P8. The scene mahazar prepared in the above crime was marked in evidence as Ext.P9. Exts.P5 and P6 were also identified by him. Lists of properties prepared while
forwarding the properties seized, to the trial court were marked in evidence as Ext.P10 series. Confessions recorded by him from the 2nd and the 1st accused were marked in evidence respectively as Exts.P11 and P12. The Quartz watch is identified through PW9 and marked in evidence as MO3. The report prepared while forwarding MO3 to Judicial First Class Magistrate Court was marked in evidence as Ext.P13. The accused was identified by PW9. Chargesheet was laid by him against the accused. On appreciation of the above evidence, the trial court arrived at a finding that the 1st accused is not guilty for the offences punishable under Sections 328 and 381 IPC and -:11:- thereby acquitted her. She was found guilty by the trial court only for the offence under Section 394 IPC and convicted and sentenced to undergo rigorous imprisonment for a term of 7 years and was also liable to pay fine of Rs.1 lakh. In case of default in payment of fine, she was directed to undergo simple imprisonment for six more months. Set off was also allowed for the period already undergone by her during remand and judicial custody. MO3 was ordered to be returned to the legal heirs of CW1 on expiry of the time stipulated for filing the appeal.
9. 2nd accused was found not guilty by the trial court for the offence punishable under Sections 328, 381 and 394 read with Section 34 IPC and was acquitted under Section 235(1) Cr.P.C. In the above context that the 1 st accused has filed the appeal before this Court.
10. The learned counsel for the appellant urged that as per the case of the prosecution accused Nos. 1 and 2 had committed the offence under Sections 328, 381 and -:12:-
394 read with Section 34 IPC with their common intention. According to the learned counsel charge was also framed by the trial court for all the offences against both the
accused, and they faced trial together. The prosecution has relied on the same set of evidence to arrive at a finding of guilt of the 1st accused for the offence under Section 394 IPC and for acquitting her for the offences under Sections 328 and 381 IPC. The same set of evidence was relied on by the trial court for finding the 2nd accused not guilty for the offence under Sections 328, 381 and 394 read with Section 34 IPC and acquitting him. According to him, the
trial court is erred an unjustified in convicting the 1 st accused for the offence under Section 394 IPC when herself and the other accused were acquitted for offences under Sections 328 and 381 IPC. According to the learned counsel, for attracting the offence under Section 328 IPC, the prosecution needs to prove that the accused has
committed hurt on the victim. Similarly for an offence -:13:- under Section 390 liable to be punished under Section 394 IPC to be attracted, the prosecution needs to prove that the accused had caused hurt on the person from whom the properties have been stolen. Therefore for attracting an offence under Section 390 IPC, the prosecution has to establish that while committing theft of properties from the victim, the accused has also inflicted hurt on him.
11. In order to have a better understanding of the case, the provisions of the Indian Penal Code, 1860 dealing with the offences referred to is appropriate to be extracted hereunder. Section 328 IPC reads :
“328. Causing hurt by means of poison, etc., with intent to commit an offence : Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. ” -:14:-
12. As per the allegations of the prosecution, poison
was mixed with the food by the 1st accused, who was then a bystander for CW1 at the hospital and given to her. The poison was brought and given to the 1st accused by the 2nd accused. The material witnesses relied on by the prosecution were PWs 1 and 2 and they deposed strictly in tune with the prosecution case. The trial court arrived at a finding after appreciation of the evidence that the prosecution failed to prove the offence under Section 328 IPC against both the accused. The trial court on appreciation of the evidence tendered by the witnesses of the prosecution also found that the prosecution failed to establish the guilt of both the accused for offences punishable under Section 381 IPC. Section 381 IPC reads : “381. Theft by clerk or servant of property in possession of master: Whoever, being a clerk or servant, or being employed in the capacity of a clerk or servant, commits theft in respect of any property in the possession of his master or employer, shall be punished with -:15:- imprisonment for either description for a term which may extend to seven years, and shall also be liable to fine.”
13. The gold ornaments stolen from CW1 were recovered from the house hired on rent by the 1 st accused
for residing. The information regarding the availability of the gold ornaments were received by PW9, from the confession made to him by the accused. There is no case for the prosecution that the recovery of the gold ornaments was made through the accused on the basis of a disclosure statement made by any of them. The disclosure statement does not form part of the evidence on record. Therefore it can be gathered from the evidence that the recovery of the gold ornaments was not one effected under Section 27 of the Evidence Act, 1872. According to the prosecution the gold ornaments were exchanged from a jewellery and then pledged with Muthoot Bank. The employees of the Muthoot Bank examined as PWs 7 and 8 have also deposed about the pledge of the gold ornaments at Muthoot Bank. Therefore for want of sufficient and satisfactory evidence to
-:16:- establish the guilt of the accused under Section 381 IPC, that they were found not guilty by the trial court for that offence and acquitted.
14. In the above context, the question relevant for consideration is, whether the offence under Section 390 IPC would be attracted then to punish the 1st accused under Section 394 IPC. The offence of robbery is dealt with under Section 390 IPC and it reads :
“390. Robbery In all robbery there is either theft or extortion. When theft is robbery : 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. When extortion is robbery : Extortion is “robbery” if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person, so put in fear then and there to deliver up the thing extorted. Explanation : The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint. ” -:17:-
From the extract above, this Court is convinced that for attracting an offence under Section 390 IPC, the offence of theft or extortion is relevant to be established. Causing hurt in the course of commission of the offence of theft or extortion is also an ingredient relevant for constituting an offence of robbery under Section 390 IPC.
15. In the case on hand, the trial court has found
that the accused are not liable to be convicted and sentenced for offences under Sections 328 and 381 IPC and accordingly acquitted them. Therefore the prosecution cannot claim that the offence under Section 390 IPC is attracted in the case on hand. Therefore, the finding of guilt of the 1st accused for the offence under Section 390
IPC will not sustain. When the accused stands acquitted for the offence under Sections 328 and 381 IPC an offence under Section 390 IPC will not be attracted against him, since the ingredients constituting the offence under -:18:- Sections 328 and 381 IPC also are essential to be established for proving the offence under Section 390 IPC.
16. In a context when the 1 st accused was acquitted
for the offences under Sections 328 and 381 IPC that the trial court found him guilty for the offence under Section 390 IPC and convicted and sentenced him under Section 394 IPC. The trial court is convinced to have committed an error while finding the 1st accused guilty for the offence under Section 394 IPC and convicted and sentenced her for the same by the judgment under challenge. This Court has no hesitation to hold in the case on hand that the prosecution has thoroughly failed to establish the guilt of the 1st accused for the offence under Section 390 IPC and therefore the finding that he is guilty for the offence and the orders of conviction and the sentence imposed under
Section 394 IPC will not sustain. Those are only to be reversed. -:19:- The appeal succeeds for the reasons and is allowed. The finding of guilt of the appellant and orders of conviction and sentence for the offence under Section 394 IPC is reversed. The accused is acquitted for the offence under Section 394 IPC. The bail bond executed by her is cancelled and she is set at liberty forthwith. Sd/- MARY JOSEPH JUDGE ttb