Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 14TH DAY OF OCTOBER 2020 / 22ND ASWINA, 1942 AGAINST THE JUDGMENT IN SC 433/2003 DATED 06-04-2005 OF ADDITIONAL DISTRICT COURT (ADHOC), MANJERI AGAINST THE JUDGMENT IN CP 53/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,PARAPPANANGADI APPELLANTS:
1 NAZAR S/O MOIDEENKOYA, ARAYAKATH,CHAPPAPADI, KORMAN KADAPPURAM, TANUR. 2 HUSSAIN KOYA ,S/O.ABDULLA THITHIRAKATH HOUSE, CHAPPALAI, TANUR. 3 HANEEFA ,S/O.HAMSA, KADIYANTEPURAKKAL RAYIRIMANGALAM AMSOM, OTTUMPURAM, TANUR. 4 ALIMON ,S/O.HAMZA, KADIYANTEPURAKKAL RAYIRIMANGALAM AMSOM, OTTUPURAM, TANUR. 5 ABBAS ,S/O.KUHIMARAKKAR KUTTIKKADANVEETTIL, PERIYAPPURAM AMSOM, TANUR. 6 RASHEED, S/O.KUNHIMOHAMMED KUTTIKKAMMUVINTE PURAKKAL VEEDU, RAYIRIMANGALAM. 7 AKBAR, S/O.KUNHIMOHAMMED KUTTIKKAMMUVINTE PURAKKAL VEEDU,, RAYIRIMANGALAM. 8 SAIDALAVI ,S/O.CHERIYA BAVA ARAYARAKATH HOUSE, CHAPPAPADI, TANUR. 9 FAROOQ ,S/O.MUHAMMEDKUTTY POURAJINTEPURAKKAL HOUSE, CHAPPAPADI, TANUR. 10 JALAL, S/O.CHERIYAMON, VELICHANTEPURAKKAL HOUSE, CHAPPAPADI, TANUR. 11 MAHAJU, S/O.MARAKKARKUTTY ,CHEMMEENAKATH VEEDU, CHAPPAPADI, TANUR.
12 AYOOB, S/O.KUNHIKARAKKAR KUTTIKKADANVEETTIL, CHAPPAPADI, KORMANKADAPPURAM. 13 SAMEER, S/O.KUNHIMARAKKAR,KUTTIKKADAN VEETTIL, CHAPPAPADI, KORMANKAPPURAM, TANUR. BY ADVS. SRI.DILIP MOHAN SMT.RIPSY PIUS RESPONDENTS: 1 STATE OF KERALA REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM. 2 THE STATION HOUSE OFFICER, TANUR POLICE STATION, TANUR. R1-2 BY ADV. PUBLIC PROSECUTOR SRI.K.ANAND, AMICUS CURIAE, SRI.K.B.UDAYAKUMAR, SR.GP THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-102020, THE COURT ON 14-10-2020 DELIVERED THE FOLLOWING:
JUDGMENT
Dated this the 14th day of October 2020 The appellants are the accused in Sessions Case No.433/03 on the file of the Additional Sessions Judge, Fast Track No.I(Adhoc), Manjeri.
2. The above case is charge sheeted by the Tanur Police against the appellants alleging offences punishable under Section 324, 395, 427 of the I.P.C.
3. The prosecution case is that, on 16.03.2002 at
8.30 am, all the accused jointly committed dacoity from the house bearing No.20/410 of Tanur Panchayath belonging to the defacto complainant and they caused hurt on her and looted articles comprising TV Set, Electric Iron, Tape Recorder and an amount of Rs.30,000/-. It is also alleged that a gold chain of weighing 6 sovereigns was also looted. Hence, it is alleged that the accused committed the above said offences.
4. To substantiate the case, the prosecution examined PW1 to PW8. Ext.P1 to P10 are marked on the side of the prosecution. M.O.1 is the material object.
5. After going through the evidence and documents,
the trial court found that the accused committed the offence under Section 323, 427 and 395 of the I.P.C. The accused are sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,000/- under Section 395 of the I.P.C. In default of payment of fine, the accused are directed to undergo simple imprisonment for six month each, if the fine amount is realized, there is a direction to pay an amount of Rs.10,000/- to the complainant as compensation. No separate sentence was imposed under Section 427 and 323 of the I.P.C. Aggrieved by the above, this Criminal Appeal is filed.
6. When this appeal came up for consideration, there was no representation to the appellants continuously. This
case was posted for disposal on several occasions. Even then there is no representation. Therefore, I appointed Adv. Anand K. as Amicus Curiae to assist this Court. The legible copy of the entire records were handed over to Adv. Anand on 7/10/2020 and today he argued the case in detail.
7. Heard the learned counsel for the appellants and the learned Public Prosecutor.
8. The Amicus curiae supported the case of the
appellants. The learned counsel submitted that even if the entire allegations in this case are accepted, no offence under Section 394 IPC is made out. The learned counsel submitted that the alleged looted articles are not seized by the prosecution. The learned counsel also submitted that there is no evidence that these looted articles were there inside the house. There is only the interested testimony of PW1. The learned counsel submitted that, in such circumstances, there is absolutely no justification on the part of the trial court in convicting the accused under Section 394 of the I.P.C. The learned counsel also submitted that the offence under Section 427 of the I.P.C is not made out in this case. The learned counsel submitted that the evidence of PW1 cannot be believed because, almost all the portion of her evidence are omissions. The learned counsel also submitted that the offence under Section 323 of the I.P.C is also not made out. The learned counsel submitted that the trial court relied Ext.P2 scene mahazar to convict the appellants under
Section 427 of the I.P.C. The learned counsel submitted that Ext.P2 scene mahazar is not proved in a manner known to law. The learned counsel submitted that the person who prepared the same was not examined. Therefore, the learned counsel submitted that the trial court is not justified in convicting the appellants under Section 427 of the I.P.C.
9. The Public Prosecutor supported the judgment of
the trial court. The Public Prosecutor submitted that there is convincing evidence to show that the accused committed offence under Section 395, 427, 323 of the I.P.C.
10. The point for consideration is whether the accused committed offence under Section 395, 427 and 323 of the I.P.C.
11. The first point to be decided is whether the trial court is justified in convicting the accused under Section 395 of the I.P.C. Altogether eight witnesses were examined on
the side of the the prosecution. PW1 is the defacto complainant and eye witness of the incident. The mother of PW1 was also an eye witness, but she was not examined. PW2 is a neighbor. She is examined to prove the incident. PW3 is the scene mahazar witness through whom Ext.P2 scene mahazar is marked. PW4 is the Doctor through whom Ext.P3 wound certificate is marked. Ext.P3 wound certificate is that of PW1. PW5 is a Doctor who examined the mother of PW1. Ext.P4 is the wound certificate. PW6 is the Police Constable who registered FIR. PW7 and PW8 are the Investigating Officers.
12. The evidence available in this case is that of PW1 and
PW2. PW1 narrated the incident in detail. According to her, the accused after committing mischief in the house, looted articles including a clock. According to PW1, assailants have looted a television set, tape recorder and other articles from the house. It is also alleged that she lost Rs.30,000/-. It is also alleged that a golden chain weighing 6 sovereigns was
also lost from the house. Admittedly, PW1 is not an eye witness to the alleged looting of the articles. To attract the offence under Section 395 of the I.P.C., the prosecution has to establish that there is dacoity. Dacoity is defined in Section 391 of the I.P.C. Dacoity means 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”. Therefore, their evidence is necessary to show that the accused committed dacoity. In this case, according to PW1, the accused entered in the house and committed mischief. When the accused entered the house, she and her mother left the house. When they came back, some articles were not there in the house. PW1 is not an eye
witness to the alleged looting. The prosecution has not recovered this alleged looted articles. There is no recovery of these articles either from the accused or some other place. According to the prosecution, these articles were not recovered, because the appellants were released on bail by the bail court under Section 438 of the Cr.P.C. I am surprised
to see such an explanation from the prosecution. If an accused is released on bail under Section 438 of the Cr.P.C., it cannot be said that no recovery is possible. Even though the accused is released on bail under Section 438 of the
Cr.P.C, that will not restrain the Investigating Officer in questioning the accused and getting recovery of the articles. Therefore, I cannot agree with the prosecution that the articles were not recovered because the appellants were released on bail u/s 438 of the Cr.P.C. What remains is that there is only the evidence of PW1 and PW2. They have not seen that the accused in this case looted this articles. It is only their presumption. They have not witnessed the same.
The looted articles are not seized. No recovery is also affected from the accused. In such circumstances, the trial court erred in convicting the accused under Section 395 of the I.P.C.
13. What remains is the offence under Section 427 and
323 of the I.P.C. In the light of the evidence of PW1 coupled with the evidence of PW4, the Doctor, it is clear that PW1 sustained only simple hurt. Ext.P3 is the wound certificate. PW1 deposed that, she was assaulted by the accused and she sustained hurt. Therefore, there is nothing wrong in convicting the accused under Section 323 of the I.P.C.
14. As far as Section 427 of the I.P.C. is concerned, there is ample evidence to prove the same. PW1 clearly stated that the accused trespassed into the house and
committed mischief. This is corroborated by Ext.P2 scene mahazar. Ext.P2 scene mahazar is proved through PW3. A perusal of Ext.P2 scene mahazar will show the details of mischief committed by the accused. In the light of the evidence of PW1 coupled with Ext.P2 scene mahazar the offence under Section 427 of the I.P.C. is proved. The evidence of PW2 also corroborate the fact that an incident happened in the house of PW1. Therefore, there is nothing to disbelieve the evidence of PW1 and PW2 coupled with Ext.P2 to conclude that the offence under Section 427 of the I.P.C is proved. Therefore, I think the trial court perfectly justified in convicting the accused under Section 427 of the I.P.C.
15. Then, the next question is what is the sentence to
be imposed. As far as Section 427 and 323 of the I.P.C. are concerned, the trial court has not imposed any sentence in the light of the fact that the sentence is already imposed under Section 395 of the I.P.C.. Now, I already set aside the conviction and sentence imposed on the appellants under Section 395 of the I.P.C. A perusal of Ext.P2 scene mahazar will show that the accused committed mischief and according to PW1, she sustained a loss of Rs.1 lakh.
16 There are thirteen accused in this case. The loss sustained by PW1 should be compensated by way of compensation. The alleged incident in this case happened in the year 2002. Now, eighteen years elapsed. Admittedly, the accused in this case are not habitual offenders. The motive alleged in this case is some rift between two Muslim groups namely, A.P.Sect and E.K.Sect.
17. Considering the entire facts and circumstances, I think the sentence of fine will be sufficient in this case. In the result, this Criminal Appeal is allowed in part in the following manner.
1. The conviction and sentence imposed on appellants under Section 395 of the I.P.C. are set aside.
2. The appellants are directed to pay a fine of Rs.10,000/- each under Section 427 of the I.P.C. In default of payment of fine, the accused shall undergo simple imprisonment for three months.
3. The appellants are directed to pay a fine of Rs.1000/- under Section 323 of the I.P.C. In default of payment, the appellants shall undergo simple imprisonment for fifteen days.
4. If the fine amount is realized, an amount of Rs. 1 lakh should be paid to PW1 as compensation under Section 357(1) of the Cr.P.C. Sd/- P.V.KUNHIKRISHNAN JUDGE AJ