Kerala High Court
Chandran vs State Of Kerala on 14 February, 2019
Author: P. Somarajan
Bench: A.M.Shaffique, P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY, THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940
CRL.A.No. 583 of 2015 (D)
AGAINST THE JUDGMENT IN SC No.356/2013 of ADDITIONAL SESSIONS
COURT (SPECIAL COURT), KOTTAYAM, DATED 07-04-2015
CP No.21/2013 of JUDICIAL MAGISTRATE OF FIRST CLASS - I,
ETTUMANOOR
CRIME No.152/2013 OF ETTUMANOOR POLICE STATION
APPELLANT/ACCUSED:
CHANDRAN, C.No.31,
CENTRAL PRISON,
THIRUVANANTHAPURAM -12
BY ADV. ALEX A K (STATE BRIEF)
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY DIRECTOR GENERAL OF PROSECUTION,
HIGH COURT OF KERALA.
BY Sr.PUBLIC PROSECUTOR SRI. S.U.NAZAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05.10.2018, THE
COURT ON 14.02.2019 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.583/15 & 455/16 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY, THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940
CRL.A.No. 455 of 2016 (A)
AGAINST THE JUDGMENT IN SC No. 356/2013 of ADDITIONAL SESSIONS
COURT (SPECIAL COURT), KOTTAYAM, DATED 07-04-2015
CP No.21/2013 of JUDICIAL MAGISTRATE OF FIRST CLASS - I,
ETTUMANOOR
CRIME No.152/2013 OF ETTUMANOOR POLICE STATION
APPELLANT/2nd ACCUSED:
KRISHNAN, S/o ARUMUGHAM, AGED 33 YEARS,
DOOR No.25, NEAR KALAVASAL,
THIRUNAGAR CHRULIPETTY ROAD, KAMPAM T.T.,
UTHAMAPALAYAM TALUK, THENI DISTRICT,
(IInd STREET, THIRUNAGAR, MUNIYANDIPURAM VILICHERI,
MADHURA DISTRICT, TAMIL NADU).
BY ADVS.SRI.K.R.SRIPATHI
SMT.ANUPAMA SUBRAMANIAN
SRI.K.V.RAMABHADRAN
RESPONDENT/STATE:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY Sr. PUBLIC PROSECUTOR SRI. S.U.NAZAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15.10.2018,
THE COURT ON 14.02.2019 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.583/15 & 455/16 3
JUDGMENT
P. Somarajan, J.
Against the judgment of conviction and order of sentence for the offence punishable under Sections 459, 397 and 307 read with Section 34 IPC in Sessions Case No.356/2013 on the file of Additional Sessions Judge-II, Kottayam, dated 07.04.2015, the accused Nos.1 and 2 came up with these two appeals.
2. The accused Nos.1 and 2 were tried for the offence punishable under Sections 459, 397 and 307 read with Section 34 IPC on the allegation that they along with accused No.3 in furtherance of their common intention criminally trespassed into the house of PW1 by break opening the door of the dwelling house and snatched away a gold chain weighing 18gms worn by her and in that attempt they gave a cut injury with a knife on the head of PW2 and also attacked PW1 with a knife taken from accused No.3. The accused Nos.1 and 2 inflicted several injuries on PW2 and then ran away from the place of occurrence. The alleged incident took place at 2.15 a.m. On 15.02.2013.
3. The learned Sessions Judge relied on the ocular evidence tendered by two eye witnesses -PW1 and PW2 and the Crl.Appeal Nos.583/15 & 455/16 4 oral evidence tendered by PW10, an expert who had collected finger print from the place of occurrence which were found to be tallying with the finger print of accused No.2 and Exhibit P8 report submitted by him. The Doctor who attended one of the victims, PW2, was examined as PW8 and got marked Exhibit P6 wound certificate. The injuries noted are grievous in nature and could be possible by MO1 knife. Exhibit P18 is the treatment record. He had undergone treatment as inpatient from 15.02.2013 to 19.02.2013. MO1 is the knife - small in size, MO2 is the knife - big in size. MO8 is the chopper.
4. The sequence of incident as narrated by PWs 1 and 2 reveals that the alleged incident happened in and around 2.15 a.m on 15.02.2013. The accused Nos.1 to 3 broke open the house. The accused No.3 stood outside the house so as to facilitate the commission of offence of robbery and accused Nos.1 and 2 stealthily entered into the house and snatched away the gold chain worn by PW3. In that attempt, she woke up and screamed for help. PW2 came up for her help, but accused No.2 hit on him with a chopper like knife on his head causing fracture. By hearing the hue and cry, PW1 woke up and came there. The accused No.1 thereon took a knife from accused No.3 and attacked PW1 and PW2 and inflicted cut injuries.
Crl.Appeal Nos.583/15 & 455/16 5
5. Both the eye witnesses examined by the prosecution, PW1 and PW2, are in agreement with respect to the sequence of incident and the specific overt act of each accused. They had identified the accused Nos.1 and 2, but their identification was put under challenge mainly on the reason that the alleged incident happened during the odd hours of night. PW1 had identified even the dress worn by the accused at the time of commission of offence. One of the accused was wearing a brown colour shorts and the other one wearing a blue colour shorts. But there is no proper identification by PW2 specifying the accused Nos.1 to 3 independently. What is recorded by the learned Trial Judge regarding the identification of accused is really improper as there is only a general statement that "He identifies them". It is really a mistake committed by the Trial Judge. On the other hand, PW2 had identified both the accused Nos.1 and 2 and identified MOs 1 to 5 including the two shorts worn by accused Nos.1 and 2. He had narrated the entire sequence with specific overt act of each and every accused which is fully and completely in agreement with what is spoken by PW1 and had also identified the broken gold chain belonged to his mother which was snatched away by the accused as MO6. It was recovered from accused No.1 on conducting a body search and Ext.P3 mahazar. The Crl.Appeal Nos.583/15 & 455/16 6 recovery of MO16 a piece of gold chain was witnessed by PW4 and PW5 and they have given oral evidence in tune with the recovery under Ext.P3 mahazar. No satisfactory explanation forwarded by the accused No.1 during his examination under Section 313 of Cr.P.C. regarding the possession of a piece of gold chain which was identified as that of PW3 by PWs 1 to 3. It is now well settled that unexplained possession of article of theft is presumptive evidence of commission of robbery and which would act as an incriminating circumstance against the accused No.2 and would give sufficient corroboration to the oral testimony of both PWs 1 to 3. Both PWs 4 and 5 has identified accused Nos.1 and 2 as they were arrested from a nearby house and conducted body search on them. Their identification of accused as the person arrested from a nearby house on the same night and recovery of gold chain and the accused No.1 was found in the company of accused NO.2 in a suspicious circumstance in the house of another person during night time would act as another incriminating circumstance as against accused Nos.1 and 2. The fact that they were acquitted in connection with their criminal trespass on the same night to the house of another person for the commission of robbery will not in any way take away the oral evidence tendered by PWs 4 and 5 and their identification if it is Crl.Appeal Nos.583/15 & 455/16 7 otherwise found to be genuine and acceptable.
6. PW10 had given sufficient corroboration to the oral testimony of PWs1 and 2 and their identification of accused Nos.1 and 2. Exhibit P8 is the report prepared by PW10, the finger print expert. The finger print collected from the place of occurrence found to be tallying with the finger print of accused No.2. But it was disputed mainly on the reason that no mahazar was prepared for the collection of finger print of accused No.2. The ocular evidence tendered by PW10 cannot lightly be discarded simply on the reason that no mahazar was prepared by the Investigating Officer at the time of collection of finger print from the accused No.2. Exhibits P6 and P7 are the two wound certificates drawn on PW2 and PW3, which also give sufficient corroboration to the oral testimony of PWs 1 and 2. MO2 knife was recovered based on the disclosure statement of accused No.2 which further gives corroboration to the oral testimony of PWs 1 and 2.
7. Exhibit D2 is the FIR and D1 is the FIS lodged by PW4 and Exhibit D4 is the copy of judgment. The accused persons were arrested from the house of PW4 while they were engaged in their criminal activity. Based on the abovesaid Exhibits - D1, D2 and D4, the identity of accused persons was put under challenge. Since they were acquitted under Crl.Appeal Nos.583/15 & 455/16 8 Exhibit D4 judgment, their arrest from the house of PW4 could only be a vitiated one, it was argued. But as discussed earlier, the matching of finger print collected from the place of occurrence as that of accused No.2 and the identification made by PW1 and PW2 cannot be discarded simply for the reason that the alleged incident happened during the odd hours of night. PWs 2 and 3 had received injuries. The recovery of MO2 knife would further strengthen the oral evidence and identification made by PWs 1 and 2. PW3 had categorically stated that when she woke up on hearing unusual sound, she took a torch and she had seen accused Nos. 1 and 2 in the light of torch. She had also deposed that accused Nos. 1 and 2 entered into the house by break opening the main door of the hall, that too during the odd hours of night of 15.02.2013 at about 2.15 a.m. It is the accused No.1 who snatched away the gold chain worn by PW3. She had also deposed that she had switched on the electric light inside the hall and that she had seen both the accused Nos. 1 and 2. She had also specified the specific overt act of both the accused Nos. 1 and 2 and role of accused No.3 and the sequence of incident and gives sufficient corroboration to the oral testimony of both PWs 1 and 2.
Crl.Appeal Nos.583/15 & 455/16 9
8. In order to attract Section 307 IPC, it must be established that there was an attempt to commit murder and what is material is the intention or knowledge, that the act committed by the accused would cause death of victim though the victim had survived. The injuries noted by the Doctor in Exhibits P6 and P7 are the following:
"Exhibit P6 : Incised wound left frontal region with fracture frontal bone with cerebro spinal fluid and contusion frontal lobe and incised wound right hand.
Exhibit P7 : Multiple incised wound over scalp 6x2x1cm, 4x2x1cm, 2.5x2x1cm."
9. The circumstance under which the alleged incident happened and the injuries noted would not satisfy the ingredients which constitute Section 307 IPC, but would fall under Section 326 IPC. Being a minor offence to Section 307 IPC, a separate charge for the offence under Section 326 IPC is not necessary and as such the accused Nos. 1 and 2 are liable to be convicted for the offence punishable under Section 326 IPC and the conviction and the order of sentence under Section 307 IPC is liable to be set aside and we do so. The accused Nos. 1 and 2 are found to be guilty for the offence punishable under Section 326 IPC and convicted thereunder and sentenced to undergo imprisonment for a period of seven years. The offence Crl.Appeal Nos.583/15 & 455/16 10 alleged against accused Nos.1 and 2 would satisfy the ingredients which constitute Section 459 IPC read with Section 397 IPC and hence the finding of guilt of accused under Section 459 read with Section 397 IPC and the conviction thereunder deserves no interference by this Court.
10. Section 397 IPC is not a provision dealing with any separate offence and hence there cannot be any separate order of sentence under Section 397 IPC. It only restricts the imposition of punishment on the accused by insisting a minimum sentence of seven years.
11. The sentence awarded for the offence under Section 459 IPC can be reduced to rigorous imprisonment for seven years and a fine of Rs.25,000/- each, in default, to undergo rigorous imprisonment for six months each.
In the result, both the appeals are allowed in part. The finding of guilt of accused Nos. 1 and 2 for the offence under Section 307 IPC and the conviction thereunder are hereby set aside. Both the accused Nos.1 and 2 are found guilty for the offence punishable under Section 326 IPC and convicted thereunder and sentenced to undergo rigorous imprisonment for seven years. Both the accused are also found guilty for the offence under Section 459 read with Section 397 IPC and the finding of the Trial Court Crl.Appeal Nos.583/15 & 455/16 11 convicting the accused Nos. 1 and 2 for the said offence is hereby confirmed. But the order of sentence is modified to the extent of rigorous imprisonment for seven years and a fine of Rs.25,000/- each, in default, to undergo rigorous imprisonment for another six months each. The substantive sentence shall run concurrently. Set off is allowed under Section 428 Cr.P.C. but subject to Sections 433(A) and 432 read with Section 433 Cr.P.C. Fine, if any, realized shall be released to PW1 and PW2 under Section 357(1)(b) of Cr.P.C.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
P.SOMARAJAN JUDGE DMR/-