Kerala High Court
K.Noufal vs State Of Kerala on 7 April, 2014
Author: N.K.Balakrishnan
Bench: N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
MONDAY, THE 7TH DAY OF APRIL 2014/17TH CHAITHRA, 1936
CRL.A.No. 231 of 2013 (D)
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SC 275/2011 of ADDL.SESSIONS COURT (ADHOC-II), KASARAGOD
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APPELLANT(S)/ACCUSED 1 - 4 :-
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1. K.NOUFAL, S/O. MOHAMMED, AGED 24 YEARS,
RESIDING AT KUTHARPADAVU
KUKKUTHA KATTU, MUNOOR VILLAGE, MANGALORE, KARNATAKA.
2. IRSHAD, S/O. IBRAHIM, AGED 22 YEARS,
RESIDING AT BANCHAKKATTA
MASTHIGATTA, NEAR GOVERNMENT SCHOOL, ULLAL
MANGALORE, KARNATAKA.
3. ABDUL SATHAR @ SATHAR
S/O. MUHAMMED SALI, AGED 24, MUTHAKKA HOUSE
AMBALAMOGAR VILLAGE, MANGALORE, KARNATAKA.
4. NOUSHAD, S/O. UNHA, AGED 21, NEAR NOORAL MASJID
SOORATHKAL CROSS, MANGALORE, KARNATAKA.
BY ADVS.SRI.C.V.MANUVILSAN
SRI.RENJITH B.MARAR
SRI.M.RAMESH CHANDER (SR.)
SRI.ANEESH JOSEPH
RESPONDENT(S)/COMPLAINANT :-
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STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
07-04-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
jvt
N.K. BALAKRISHNAN, J.
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Crl.Appeal No. 231 of 2013
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Dated this the 7th day of April, 2014
J U D G M E N T
This appeal is filed by accused Nos. 1 to 4 in S.C. No. 275/2011 of the Additional Sessions Court (Adhoc - II), Kasaragod. The accused Nos. 1 and 2 were convicted for offences punishable under Sections 395 and 397 of I.P.C. and they were sentenced to undergo R.I. for 7 years each and to pay Rs. 2,000/- each as fine. Accused Nos. 3 and 4 were sentenced to undergo R.I. for 7 years each and to pay Rs. 2,000/- each as fine fo the offence under Sec. 395 of IPC.
2. It is alleged that on 24-01-2011, P.W.1 being the driver of the lorry proceeded from Coimbatore to Mangalapuram (Mangalore) and at about 4 AM on 25-01-2011 they reached near Cheruvathur. The lorry Crl.Appeal No. 231 of 2013 -:2:- was parked at a vacant space by the side of the highway. The driver (PW1) and the cleaner (PW2) were sleeping in the cabin of the lorry. At about 6 a.m., the four persons (the appellants herein) came near the cabin and knocked at the door and requested for drinking water. When P.W.2 was giving drinking water, one of the accused persons (A2) threatened P.W.2 by keeping a knife at his neck and demanded money. P.W.2 was not having money in his pocket. One of the accused (A1) took away money, mobile phone, identity card and driving license from the pocket of P.W.1. P.W.1 tried to resist the accused. Then P.W.1 was beaten by A1 with an iron rod causing fracture to his right leg and losing of three teeth. Thereafter, all the four persons left the place in a car driven by the fifth man which was stationed behind the lorry.
3. PW1 was taken to the hospital by P.W. 3 where he Crl.Appeal No. 231 of 2013 -:3:- was admitted. The police reached there and recorded Ext.P1-First Information Statement of PW1, based on which, FIR was registered. After conducting investigation, the charge sheet was laid against all the five accused alleging commission of offences punishable under Secs.395 and 397 of IPC. The case was committed to the Court of Session.
4. PW1 to PW14 were examined and Exts.P1 to P21 were marked. MO1 to MO31 were also identified and marked. 5th accused was absconding and so, A1 to A4 appeared before the court and faced trial.
5. The trial court placed implicit reliance on the evidence given by PW1 and PW2 and other circumstances to hold the appellants guilty of the offences as mentioned above. A1 and A2 were sentenced to undergo R.I. for 7 years and to pay 2,000/- each as fine and in default to undergo R.I. for one year for the offence punishable under Sec.395 r/w 397 of IPC. A3 and A4 were sentenced to undergo R.I. for seven years and to pay 2,000/- each as Crl.Appeal No. 231 of 2013 -:4:- fine and in default to undergo R.I. for one year for the offence under Sec. 395 I.P.C.
6. Learned counsel for the appellants would submit that there is inherent improbability in the case of prosecution. The place of incident, namely; the place where the lorry was parked and as to the place from where the alleged incident took place are not clear. There is inconsistency. There is no acceptable evidence regarding the light in which the assailants could be identified by PW1 and PW2. The properties alleged to have been seized from the possession of the accused were not properly identified.
7. The points for consideration are :-
(i) Whether the accused 1 to 4 along with another accused committed dacoiti at the time and place as alleged by the prosecution ?
(ii) Whether at the time of committing dacoiti, the appellants and/or other accused used deadly weapons (steel rod/pipe) and caused grievous hurt to PW1 ? Crl.Appeal No. 231 of 2013 -:5:-
(iii) Whether the verdict of conviction entered by the lower appellate court against the appellants for offences punishable under Secs.395 and 397 of IPC is unsustainable on any of the grounds raised by the appellants ?
8. PW1 was the driver of the lorry of which, PW2 was the cleaner. Their evidence would show that the lorry reached a place called Paduvalam at about 4 AM on 25.1.2011. The place Paduvalam is some where near to Cheruvathur. PW1 and PW2 are from Tamil Nadu. It may not be possible for PW1 and PW2 to give the exact name of the place. It is by the side of the road to Mangalore. It is some where near Cheruvathur. That is so discernible from the scene mahazar as well.
9. The evidence would show that when the lorry reached there at about 4 AM it was stopped. PW1 and PW2 were sleeping in the lorry cabin itself. Their evidence would show that four persons came there and under the pretext of asking for drinking water, they knocked the door Crl.Appeal No. 231 of 2013 -:6:- of the lorry at about 6 A.M. Without realising the intention of the accused persons, PW2 was trying to take water and at that time one of the accused (A2) demanded money at the knife point (keeping the knife at the neck of PW2). The evidence given by PW1 and PW2 that from the pocket of PW1, a sum of 3,000/-, mobile phone, driving licence etc. were taken away by the accused persons by putting PW1 and PW2 in fear of death by keeping the knife at the neck of PW2 remains unshattered in spite of the incisive cross examination made by the defence. Similarly, the evidence given by PW1 that when he tried to prevent the accused robbing away of the articles from the possession of PW2, he was beaten on his face with an iron pipe and because of the same, he (PW1) lost three teeth and thereafter he was beaten on the leg of P.W.1 causing fracture also remains unshaken. In other words, the credibility of PW1 and PW2 regarding those aspects does not suffer from any intrinsic infirmity or inherent improbability. The evidence would Crl.Appeal No. 231 of 2013 -:7:- show that after robbing away all the articles as mentioned above i.e. the course of which A1 inflicted grievous hurt to P.W.1, all the four accused persons rushed towards the car which was halted there. The further fact is that the said car was immediately driven away after the appellants boarded the car. These facts would sufficiently strengthen the case of the prosecution that the 5th man was waiting with the car a few metres away from the place of incident in order to facilitate the escape of the appellants from the place of occurrence immediately after the robbery was committed.
10. It is vehemently argued by the learned counsel for the appellants that the position in which PW1 and PW2 were sitting in the lorry would create serious doubt in the mind of the court as to their possibility of seeing the car or the persons sitting in that car and as such, the evidence given by PW1 and PW2 cannot be accepted to hold that there was a 5th man. The argument proceeds on the Crl.Appeal No. 231 of 2013 -:8:- premise that if the complicity of the 5th man is not proved the offence will not fall under Sec.395 of IPC.
11. Learned Public Prosecutor would strongly oppose the submission pointing out that even it is assumed that it was not possible for PW1 and PW2 to identify the 5th man whether he was sitting in the driver's seat or not cannot have much significance in view of the fact that the only question that would fall for consideration is whether the robbery was committed con-jointly by the accused persons. To attract the offence under Sec.395 of IPC it is not necessary that the 5th man should also be among the persons who attacked PW1 and PW2 in the course of committing robbery. The fact that there was only a sum of 3,000/- in the pocket of PW2 at the relevant time does not take the offence beyond the ambit of Sec.395 of IPC. Learned Public Prosecutor rightly submits that if the allegation of robbery is proved and if it is further proved that all together five persons had con-jointly done that act it Crl.Appeal No. 231 of 2013 -:9:- is immaterial as to the role of each and every accused involved in the commission of crime. All of them should have committed robbery or one or some of them should have aided the commission of robbery.
12. P.W.3 is the driver of another lorry which reached the place of incident within a short while. Since he (PW3) heard P.W.2 and others talking about the necessity of going to the Police Station he enquired with P.W.2 and then he was told that P.W.1 sustained serious injuries as he was beaten by the robbers and P.W.1 was found inside the cabin seat of that lorry with bleeding injuries. Thus, P.W.1 was taken by P.W.3 in his lorry to KAMH Hospital, Cheruvathur where P.W.1 was admitted. P.W.3 has stated that he remained in the hospital till evening. According to him somebody had informed the police .
13. Much was argued by the learned counsel for the appellants contending that there is inconsistency in the Crl.Appeal No. 231 of 2013 -:10:- actual place of incident. In Ext. P1 F.I. statement the place of incident is described as a place slightly to the south of the building occupied by Paduvalam Beverages Corporation. That exactly is the place shown in the scene mahazar. Paduvalam is two or three kms. away from Cheruvathur. As stated earlier P.Ws.1 to 3 are from Tamil Nadu. They were on the way to Mangalore. According to P.Ws.1 and 2, the lorry was parked at a vacant place situated by the side of the National Highway somewhere near Paduvalam. Therefore, there is no material contradiction with regard to the place of incident or the place where the lorry was parked.
14. It is also argued that the car in which the appellants were stated to have escaped was kept at the rear side of the lorry, and hence according to the defence, it was not possible for P.Ws.1 and 2 to see the car. It is important to note that after P.W.1 was attacked in the manner stated above, the accused persons left the scene. Crl.Appeal No. 231 of 2013 -:11:- In such circumstances it is quite natural to have curiosity to see how or to which place the assailants had escaped. The contention that since P.Ws 1 and 2 were in the cabin of the lorry it was not possible for them to see the car or the assailants getting into the car cannot be accepted.
15. It is true that if the identity of the 5th man was sought to be proved based on the evidence given by P.Ws. 1 and 2, then certainly it can be argued that it was nearly impossible for P.Ws 1 and 2 to identify the 5th man who was the driver that car. But the question would be different when the only question to be considered is whether there was a 5th man namely, a driver waiting in the car so as to facilitate the escape of the four appellants. For that purpose, it is not necessary to identify the 5th man.
16. It is vehemently argued by the learned counsel for the appellants that the evidence given by P.Ws 1 and 2 would show that the accused left that place in a white Qualis Car whereas the car Crl.Appeal No. 231 of 2013 -:12:- intercepted and subsequently seized by the police on the same day was a red Tavera Car. True, it may appear, there is an inconsistency with reference to the name and colour of the car. But the fact remains that the appellants escaped from the scene in a car which was kept on the rear side of the lorry.
17. The evidence given by P.W.10 who was then the Sub Inspector, Cheemeni would show that while he was checking the vehicles at a place called Chanadukkam he received a wireless message that the accused in Crime No.65/2011 (Crime number is of this case) were proceeding from a place called Kannadipparamba towards Cheemeni side and that the Circle Inspector of Police, Neeleswar and his party were chasing the aforesaid red Tavera Car. On getting that information, P.W.10 and his party became alert and they also proceeded to Cheemeni and when they reached Cheemeni Town, they found a Crl.Appeal No. 231 of 2013 -:13:- Car (having the description mentioned above) turning towards Kayyur which was being chased by the police Jeep of the Circle Inspector (PW12). The evidence of P.W.10 would further show that his (PW10's) vehicle also proceeded in that line and when it reached a place called Nhandadi, it could be seen that the vehicle of P.W.12 could intercept the red Tavera Car . It was further sworn by him that the four persons who were seen inside the car were trying to flee from there but they were intercepted and apprehended. P.W.12 questioned them and their names and addresses were taken down.
18. The evidence given by P.W.10 the S.I. of Police and P.W.12 the C.I. of Police is clear, cogent and convincing that after chasing the red tavera car mentioned above, P.W.12 could intercept the same by keeping his vehicle in front of Tavera car and at that time all the four persons inside the car tried to flee Crl.Appeal No. 231 of 2013 -:14:- from the place of incident but their attempt was spoiled and all the four persons were caught red- handed. After careful scrutiny, the court below accepted the evidence of PW10 and PW12. I find no reason to hold otherwise.
19. The evidence would show that beneath the middle seat they could find a steel pipe of a length of 56 cms. and a packet of chilly powder (packet was seen opened) two car stereos, one red woollen cap, a polythene bag. When that polythene bag was opened it was found to contain four torches of different colours and 13 mobile phones and black purses, 3 purses of brown colour and a few bunches of keys, identity cards and a blank cheque leaf etc. Besides silver anklets of a weight of about 30 grams and a sum of 20,633/- were also seen. All those properties were seized as per Ext. P5 mahazar. Ext. P5 the contemporaneous record would show the Crl.Appeal No. 231 of 2013 -:15:- details of the articles seized at the time and place as stated above. Those properties were identified and marked as MOs 2 to 31. The two driving license that could be seized as per that mahazar were marked as Exts.P16 and P17. Those driving licence are of P.W.1. The evidence shows that those driving licenses were among the articles robbed from the pocket of P.W.1. The evidence given by P.W.12 that the accused were shown to P.W.1 and he identified those accused persons also could not be properly controverted by the defence.
20. It is for the accused persons to explain how there could be 13 mobile phones and why did they carry the chilly powder. The conduct of the 4 accused persons in trying to escape in the red Tavera car and that they could be intercepted after driving several kilometres and even after the car was intercepted, A1 to A4 tried to flee from the place are Crl.Appeal No. 231 of 2013 -:16:- sufficiently indicative of the fact that all of them were involved in the commission of the offence. All those four persons were caught red-handed. They were later arrested and produced before the Magistrate. Those accused persons were shown to P.W.1 and P.W.2 who were in the hospital. They did identify those four persons. Not only that the identity of the four accused persons who faced the trial was not controverted by the defence. There could be no such challenge also in view of the fact that P.W.1 and P.W.2 the actual victims had sufficient time to get the physical identifying features of those four persons etched in their mind. The contention that it was not possible for P.W.1 and P.W.2 to identify those four persons, cannot be accepted.
21. The fact that there were no other independent eye witnesses at the time of occurrence is well explained since the incident happened at the Crl.Appeal No. 231 of 2013 -:17:- early hours of the day when there was nobody else anywhere near the place. P.W.3 reached there immediately after the incident. What was spoken to by P.W.1 and 2 the injured victims to P.W.3 is relevant since it was so proximate in time and place and there was continuity of action. What transpired there was communicated to P.W.3. The further fact that it was P.W.3 who took P.W.1 and P.W.2 to the hospital in his lorry would prove to the hilt as to the place of incident and the incident that happened.
22. No question was put to P.W.1 as to the vehicle in which other persons were escaped. When P.W.2 was asked he stated that the accused escaped in a white Qualis Car. Simply because P.W.2 committed a mistake in giving the name and colour of the car, it cannot be said that their evidence is unworthy of acceptance. The evidence given by P.W.10 and 12 that for the arrest of the accused Exts. Crl.Appeal No. 231 of 2013 -:18:- P7 to P10 the arrest memos and Exts.P11 to P14 the inspection memo were prepared would prove to the hilt that those four persons were arrested at the time and place noted therein. Even otherwise, there is no case for the defence that they were not arrested in the manner stated by P.Ws. 10 and 12. The evidence given by P.Ws.10 and 12 that the car KA-01-MF 2848 which was the car used by the accused and which was intercepted and examined by P.W.12 contained in it the material objects referred to above and that they tried to escape are strong circumstances to prove their complicity in the commission of robbery.
23. Even during cross-examination P.W.12 asserted that P.W.1 did identify the accused from the hospital. The contention raised by the defence was that PW1 was discharged from the hospital prior to 3 p.m. on 26-1-2011 and so it was not possible to show the accused persons from the hospital. That plea Crl.Appeal No. 231 of 2013 -:19:- cannot be accepted since the question is whether P.W.1 was in the hospital and whether P.W.12 had taken the accused persons to the hospital to get them identified by P.W.1.
24. The non-conduct of test identification parade was projected by the defence to contend that the identification of those accused persons made by P.W1 and P.W.2 cannot be accepted. In fact the identity of the fourth accused was not challenged. It is not the case that after the incident the accused were seen by P.Ws.1 and 2 for the first time in court. The evidence would clearly show that the accused persons were shown to P.W.1 from the hospital and he actually confirmed the identity of those persons. That apart, as said earlier, there was sufficient time for P.W.1 and P.W.2 to get the identifying features of the accused etched in their mind so that the possibility of giving a mistaken identity has to be totally ruled out. Crl.Appeal No. 231 of 2013 -:20:- A1 to A4 were arrested on the same day evening. Exts. P16 and P17 the driving licence of P.W.1 were among the properties seized from the Car travelled by the accused.
25. P.W.9 is the R.C. owner of that Car KL-01 MF-2848. His evidence would show that he had entrusted the car to P.W.8 . It was stated by P.W.8 that he had entrusted the vehicle to the first accused at the time of marriage and later he could get release of that vehicle from the police station. Therefore, the fact that A1 to A4 were seen travelling in that car in that manner as stated above is a strong circumstance to support the case of the prosecution that the accused persons were making preparation to escape from the scene and till the evening they were roaming around. Simply because while giving evidence P.W.2 committed mistake in giving the colour of the car does not mean that the whole Crl.Appeal No. 231 of 2013 -:21:- prosecution case should be brushed aside.
26. Dacoity is defined under Sec. 391 I.P.C. It is made clear 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. Here the evidence is clear, cogent and convincing that the 5th man aided and assisted the commission of robbery. It was in his car the other four accused persons reached the spot and the 5th man waited in the car just near the place of incident so as to facilitate the other four accused persons to escape from the scene after committing robbery. There is clear evidence that the 5th man has aided the commission of robbery. It is not necessary that all the five persons should commit Crl.Appeal No. 231 of 2013 -:22:- robbery. It is sufficient, one or more of them only aided the commission of robbery.
27. The learned counsel for the appellants has relied upon the decision of the Supreme court in Om Prakash v. State of Rajasthan - AIR 1998 SC 1220 = 1998 KHC 1519 in support of his submission that if one of the accused is acquitted it is not proper to convict the remaining three accused. The facts dealt with therein are entirely different. Here the consistent case is that four accused persons actively participated in the commission of robbery and the 5th person aided the commission of robbery by keeping the car just near the place of incident so as to facilitate the accused to escape from the scene without being caught or noticed by others. It is not a case where the 5th accused was acquitted but he could not be traced or arrested by the investigating agency. It is argued by the learned counsel for the Crl.Appeal No. 231 of 2013 -:23:- appellants that if there is such a person in all probability, he could have been arrested but only a fake name has been shown by the police to show that there were five persons. But that contention cannot be accepted in view of the specific statements given by P.W.1 and P.W.2 that the 5th man was inside the car and the other four accused persons escaped in the car which was kept near the place of incident.
28. The decision of the Supreme Court in Mahavir Rao v. State of Bihar - AIR 1972 SC 642 also has no application to the facts of this case. There it was only stated as to the essential requirement for the offence of receiving the stolen property. Here that question does not arise. The accused persons had actively participated in the commission of robbery as can be seen from the unassailable evidence given by P.W.1 and P.W.2.
29. The decision in Gopalan v. State of Kerala Crl.Appeal No. 231 of 2013 -:24:-
- 1977 KHC 261 = 1977 KLT 714 also is not applicable to the facts of this case. In that case, out of the five accused, three of them were acquitted from the charge. As stated earlier, it is not a case where one of the accused was acquitted, but the 5th man could not be tried as he could not be arrested by the police.
30. What remains for consideration is whether there were altogether five accused persons and whether one aided the commission of robbery. Therefore, if the evidence given by P.Ws 1 and 2 that the 5th man was there in the car and it was in that car A1 to A4 escaped is accepted, the contention to the contrary advanced by the defence cannot be accepted. In the cases cited supra, after trial, the court found that the participation of the other persons could not be established and so it was found that the offence would not fall under Sec. 395 of I.P.C. Crl.Appeal No. 231 of 2013 -:25:-
31. It is axiomatic that identification tests do not constitute substantive evidence and they are primarily meant for the purpose of holding the investigation agency with an assurance that their investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement before court. The main object of holding identification parade during investigation is only to test the memory of the witnesses based on the first impression and also to enable the prosecution to decide whether all or any of them should be the eye witnesses of the crime. The substantive evidence is the evidence of identification given in court. The facts which establish the identity of the accused persons are relevant under Sec. 9 of the Evidence Act. The test identification conducted during investigation may strengthen the trustworthiness of that evidence but, it cannot be said that the non- Crl.Appeal No. 231 of 2013 -:26:- conduct of test identification parade is fatal to the prosecution.
32. The trial court was impressed by the evidence of P.W.1 and P.W.2 whose testimony could safely be relied upon by the court below to hold that the identification of the accused was made by P.W.1 and P.W.2 in Court. It gained confidence in the mind of the court. The trial court has rightly stated that there was sufficient time for P.W.1 and P.W.2 to interact and thereby to get the identifying physical features of the accused persons imprinted in their minds so that the possibility of false implication has to be ruled out.
33. One more aspect assumes relevance. Ext. P15 the identity card of the first accused and Exts.P16 and P17 the driving licence of P.W.1 were among the properties which were seized as per the mahazar prepared for the seizure of those articles Crl.Appeal No. 231 of 2013 -:27:- made by P.W.12. It is contended by the defence that the seizure of Exts. P16 and P17 cannot be believed at all. There is no reason to disbelieve the evidence given by P.W.10 and P.W.12 on that point. Besides, the description of these documents was specifically mentioned in the contemporaneous record, the seizure mahazar prepared for that purpose. That apart, there is also the identity card of the first accused which also was seen in the plastic cover in which so many other properties including the mobile phones were found. There was no case for the appellants that the identity cards showing the name M. Noufal, Marketing Executive, where the contact number has been shown, does not pertain to A1. It was issued by Manorama Printers, at Mangalore, the other address of which also shown therein. Therefore, the seizure of Exts.P15, 16 and 17 from the car as per the seizure mahazar mentioned above would clinch the issue that Crl.Appeal No. 231 of 2013 -:28:- the accused travelled in a red Tavera car bearing No. KA 01MF 2848. As stated earlier, the evidence given by P.W.9 would show that he was the owner of the car and that it was given to P.W.8. P.W.8 has stated that it was handed over to A1. The evidence is clear that A1 was travelling in that car at the relevant time. It is that car which was used by all the four accused persons mentioned earlier. The fact that all the articles like 13 mobile phones and other incriminating articles were found inside the car at that time would corroborate the case of the prosecution that the accused persons had shared their common intention to commit robbery. The further fact that a packet of chilly powder was also found inside would indicate that it was also collected and kept by them to use it against the victims to facilitate the commission of robbery/dacoity.
34. The investigating officer could have switched Crl.Appeal No. 231 of 2013 -:29:- on those mobile phones and made calls therefrom to find out the respective mobile numbers and whom they belong to. Had it been done, it would have thrown light to so many other aspects including commission of other crimes, if any. Such omission or negligence should not have been there. If proceeded in that line, the mobile phone number of the absconding accused (the fifth man) also could have been found out.
35. It is curious to note that the learned Pubic Prosecutor who conducted the case had no idea at all as to what all things are to be brought out while examining the witnesses. It is surprising to note that when the witness to the mahazar did not support the prosecution and when they only stated that they signed the mahazar from the police station, no permission was sought from the court for putting such questions as may be put in cross-examination. It seems that the prosecutor is totally unaware of the Crl.Appeal No. 231 of 2013 -:30:- position that if the witnesses are not declared hostile (if permission is not sought to cross-examine), those witnesses will be treated as prosecution witnesses and if so, the prosecution cannot disown those witnesses. Does it show incompetency or insincerity ? The learned trial Judge also did not put any court question to elicit answers which could have been elicited during trial. The trial Judge cannot be oblivious of the participatory role of the Judge while conducting trial so as to elicit the truth by putting questions under Sec.165 of the Evidence Act. That truth may be in favour of the accused or in favour of the prosecution, but that is not the concern of the court. The duty of the court is to elicit matters which are necessary for the court to find out the truth. So many relevant questions could have been put to the witnesses to elicit answers pertaining to all these aspects. It was not done. However, that does not Crl.Appeal No. 231 of 2013 -:31:- affect the case of the prosecution as a whole.
36. It is vehemently argued on behalf of the appellants that if there is no acceptable evidence to show that there was a 5th man and if there is no evidence to show that such a person aided the commission of robbery, the appellants cannot be found guilty of the offence of dacoity. It is true that in order to sustain conviction for the offence under Sec. 395 of IPC it is not necessary that the 5th man should also actively take part in the commission of robbery but it is sufficient if he aids the commission of robbery. Therefore, the crucial question is whether there was a fifth man and whether he aided or facilitated the commission of robbery by the other four accused persons.
37. The evidence given by P.W.1 and P.W.2 would show that a car was parked just behind the lorry. P.W.1 and P.W.2 could see that the four Crl.Appeal No. 231 of 2013 -:32:- accused persons escaped in that car and that the said car was driven by a person who was in the car. In other words, it was that 5th man who was in the car who aided and facilitated the other four accused persons to escape from the scene after commission of robbery. If so, there could be no doubt to hold that the 5th person has actually aided accused Nos. 1 to 4 in the commission of robbery and if so, all the four accused persons who faced the trial can be held guilty of the offence under Sec. 395 of I.P.C, even though the identity of that 5th man could not be established. But it is pointed out that the 5th man could not be arrested at all. Since the mobile phones were seized, the Investigating Officer could have located as to who and where the 5th person was at the relevant time. No effective steps were taken to apprehend the 5th man. It is also pointed out by the appellants that it was not possible for P.W.1 and P.W.2 to say Crl.Appeal No. 231 of 2013 -:33:- with certainty that there was a fifth man since P.W.1 and P.W.2 were sitting in the cabin of the lorry whereas the car was parked at the rear side of that lorry. But that plea is not acceptable. The evidence given by P.Ws 1 and 2 can be accepted as true. But still there is an element of doubt as to the role of that 5th man.
38. The fact that when the red Tavera car was intercepted by P.W.12 in the presence of P.W.10 and others, the appellants (A1 to A4) alone were there in the Car. Though the evidence given by P.Ws.1 and 2 that there was a 5th man is quite acceptable, it cannot be held with certainty that the said 5th man had shared the common intention or that he stationed that vehicle with intent to facilitate the escape of A1 to A4. It is in that background the evidence given by P.W.2 that what he saw was a white Qualis Car may have some significance. It can as well be a case Crl.Appeal No. 231 of 2013 -:34:- where the fifth man and the car might have been brought by the appellants (A1 to A4) after hiring it for a short while. That fifth man might not be knowing the intention of the appellants or as to what was the act that was committed or going to be committed by those four persons. It can as well be a case that after the commission of the crime, A1 to A4 escaped by boarding that Car driven by the 5th man. It is also possible to hold that after reaching a particular place A1 to A4 might have left that car and proceeded in their own red Tavera car which might have been stationed at a particular place. That might be the reason why the 5th man was not seen at the time when that vehicle was intercepted in the evening. It is true that no such case was advanced by the prosecution or by the defence. It is also true that if the 5th man had noticed what was happening, at least on hearing the cry or alarm, he would not have waited, Crl.Appeal No. 231 of 2013 -:35:- instead he would have left that place immediately without waiting for the other four persons.
39. It is a fact that the prosecution could not trace the whereabouts of that 5th man. Therefore, though it might be correct that the 5th man was there as spoken to by P.W.1 and P.W.2 and he might have aided the robbery, it is not possible to hold with certainty that the 5th man knew and had actually aided A1 to A4 in the commission of the crime. There is a long distance to travel from "might be true" to "must be true". If viewed in that line, benefit of reasonable doubt has to be given even though the evidence given by P.Ws.1 and 2 that there was a fifth man is true and acceptable. Hence, it is safer to take the view that the accused are guilty of the offence of robbery and not dacoity. Hence, all the four accused are held guilty of the offence under Sec. 392 read with Sec. 34 of I.P.C. So far as appellants 1 and 2 are Crl.Appeal No. 231 of 2013 -:36:- concerned, they are found guilty and convicted of the offence under Sec.397 of I.P.C. which takes within it Sec.392 of I.P.C. also and the trial court has not entered a separate conviction for appellants 1 and 2 for the offence under Sec. 395 or 392 of IPC as the case may be. So far as appellants 1 and 2 are concerned, their conviction under Sec.397 of IPC alone will suffice.
40. The evidence would clearly show that the accused kept the knife at the neck of PW2 and threatened him that he would be killed. There is also unassailable evidence that the first accused beat PW1 with an iron rod and caused fracture to his right leg bones. There is also evidence to show that A1 beat PW1 on his face causing loss of his three upper teeth. Therefore, it is a case where A1 by beating with an iron rod caused grievous hurt to PW1 and A2 used a deadly weapon (knife) while committing robbery. The Crl.Appeal No. 231 of 2013 -:37:- learned Sessions Judge found A1 guilty of the offences under Section 395 read with Sec.397 of IPC. Both sections are distinct and separate. In order to attract Sec.397 of IPC it is sufficient that the offender, at the time of committing robbery or dacoity used the deadly weapon or caused grievous hurt to any person. Here A2 used a deadly weapon (knife) at the time of committing robbery by keeping at the neck of PW2. The other accused (A1) caused grievous hurt to PW1 with an iron rod. These two acts of A1 and A2 were done at the time of committing robbery. The word used is 'robbery' or 'dacoity' and so in order to attract Sec.397 of IPC, it is not necessary to prove that there were five or more persons. Hence, the conviction of A1 and A2 for the offence under Sec.397 of IPC is only to be confirmed.
41. It is further argued by the learned counsel for appellant Nos.3 and 4 that since their conviction Crl.Appeal No. 231 of 2013 -:38:- has been altered to Section 392 read with Sec.34 of I.P.C., maximum lenience may be shown in the matter of sentence. This is a case where the nature of the attack, the time chosen and the robbery committed by the accused persons would show the gravity of the offence. It is actually a highway robbery, the learned Public Prosecutor submits.
42. It is also pertinent to note that chilly powder, iron rods, mobile phones etc. were seized from the Car in which the appellants were travelling. All of them tried to flee. But they were intercepted and apprehended by P.W.10, P.W.12 and other officials. As stated earlier, the time chosen and the nature of the attack etc. would show that the appellants are 'organized criminals' and it was a pre-planned attack, the learned Public Prosecutor submits. However, since conviction of A3 and A4 has been altered to Sec.392 of IPC, I find that there should be Crl.Appeal No. 231 of 2013 -:39:- slight modification in the matter of sentence as well. Hence, A3 and A4 are convicted for the offence under Sec. 392 read with Sec. 34 of IPC and they are sentenced to undergo R.I. for five years and to pay 20,000/- (Rupees Twenty Thousand only) each as fine and in default to undergo R.I. for six months each. The conviction of appellants 1 and 2 (A1 & A2) for the offence under Sec.397 I.P.C. is confirmed. They must be visited with minimum punishment prescribed for the offence. Hence, the sentence passed by the court below against appellants 1 and 2 (A1 & A2) directing them to undergo R.I. for 7 years and to pay a fine of 2,000/- each and in default to undergo R.I. for one year is confirmed.
43. The appeal so far as it relates to A1 and A2 stands dismissed.
44. The appeal as regards A3 and A4 is partly allowed altering their conviction to Sec. 392 read with Crl.Appeal No. 231 of 2013 -:40:- Sec. 34 of I.P.C. and they are sentenced to undergo R.I. for 5 years each and to pay 20,000/- (Rupees Twenty Thousand only) each as fine and in default to undergo R.I. for six months each. If the fine amount is paid or realised, the entire amount shall be paid to PW1, the injured as compensation.
Sd/-N.K.BALAKRISHNAN, JUDGE.
Ani/jvt