Kerala High Court
Francis @ Franchi vs State Of Kerala on 1 October, 2010
Author: K.Hema
Bench: K.Hema
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS.JUSTICE K.HEMA
FRIDAY, THE 1ST DAY OF OCTOBER 2010/10TH BHDARA 1932
CRL.A.No. 1403 of 2009 ( )
--------------------------
SC.110/2006 of ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR
APPELLANT(S)/ACCUSED::
---------------------
FRANCIS @ FRANCHI, S/O.YACOB,
PONTHEKKAN HOUSE, CHIYYARAM, THRISSUR.
BY ADVS.SRI.P.SANTHOSH (PODUVAL)
SMT.R.RAJITHA
RESPONDENT/RESPONDENT::
-----------------------------------
STATE OF KERALA, REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY ADV. PUBLIC PROSECUTOR SRI. K.S SIVAKUMAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-10-2010,
ALONG WITH CRA. 1424/2009, CRA. 1425/2009 &, CRA. 1854/2009, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
K. HEMA, J
----------------------------------
Crl.Appeal.Nos.1403, 1424,
1425 and 1854 of 2009
----------------------------------
Dated this the 1st day of October, 2010
J U D G M E N T
A charge sheet was laid by the police against 10 persons alleging offences under Sections 395, 397 and 412 of Indian Penal Code ('IPC' for short). The Additional Sessions Court convicted accused nos.1 to 5 and sentenced them to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/- each under Section 395 IPC. In default of payment of fine, they were sentenced to undergo simple imprisonment for a further period of six months. Fine amount if realised, was ordered to be given to victim as compensation. They were also sentenced to undergo rigorous imprisonment for seven years under Section 397 IPC.
2. Accused nos.8 and 10 were convicted and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/- each under Section 412 IPC and in default of payment of fine, they were sentenced to undergo simple CRA 1403/09 & con. cases 2 imprisonment for six months. Set off was also allowed. The above conviction and sentence are challenged by appellants (A1 to A5, A8 and A10). (The accused nos. 6, 7 and 9 were acquitted of the offences alleged against them).
3. According to prosecution, on 12.5.2004, accused nos.1 to 5 wrongfully restrained PW34, while he was coming in a two wheeler and accused 2 and 3 beat him with an iron pipe. When he fell down, first accused also beat him on his different parts of body. The 4th accused held a knife against PW2 who was the driver of the autorikshaw in which the accused came to the spot and thereafter, first accused took away gold ornaments worth Rs. 20,00,000/- and currency notes worth Rs.1,40,000/-. The role of the 6th accused is that he gave information over mobile phone regarding movements of PW34. Accused nos.7 to 10 sold certain stolen articles knowing the same to be stolen and received sale consideration and thereby, helped accused nos.1 to 5.
4. To prove the prosecution case, prosecution examined PW1 to PW37 and marked Exts.P1 to P51, and MOs 1 to 473. Accused did not adduce any evidence. But, while they were questioned, they put forward a case that they are innocent of the CRA 1403/09 & con. cases 3 allegations made and pleaded not guilty. The trial court, on analysis of the evidence, found that prosecution proved that accused nos.1 to 5 forcibly took away the valuables from PW34, after causing grievous hurt to him. It was also found that accused nos.8 and 10 also had knowledge that articles were stolen during dacoity and prosecution proved the offence under Section 412 IPC beyond reasonable doubt against them.
5. Heard both sides. Perused the records. On the facts of this case, I find it essential to state firstly, the details in the charge framed by the court against the accused. As per the charge framed by the court, on the crucial day, accused nos.1 to 5 got into an autorickshaw and they proceeded to the place of occurrence. On reaching there, PW2, who was driving the autorickshaw was kept away from the scene and thereafter PW34, who was coming in a scooter, was beaten up on his head by second accused with an iron pipe (MO5).
6. The 3rd accused also beat him with an iron pipe on the back side of his head. PW34 fell down, while first accused beat him with an iron pipe and attempted to commit murder. The first accused took away the gold ornaments worth Rs.20,00,000/- and CRA 1403/09 & con. cases 4 currency notes worth Rs.1,40,000/-. The 4th accused threatened PW34, by showing a knife and kept him away. The 6th accused informed accused nos.1 to 5 over mobile phone about PW34's movements and about PW34 reaching the scene. Accused nos.7 to 10 sold certain gold ornaments knowing that such ornaments are robbed and thereby, helped accused nos.1 to 5 and all of them committed offence under Sections 395, 397 and 412 IPC.
7. To prove the above case, mainly PW 34 who is the alleged victim is examined. PW34 stated in evidence that 2nd and 3rd accused beat him with iron rods on his head and when he fell down, first accused beat him with iron pipe on his back, as well as on his arm. None of the accused are previously known to PW34. Curiously, on a reading of the evidence of PW34, I find that except making a reference to the rank of the accused, there is nothing on record to show as to who was the 1st, 2nd or 3rd accused who committed the overt said act.
8. However, court below entered a finding that three persons who had "restrained PW34 were present in court" as per the evidence of PW34 and he pointed out accused nos.1, 2 and 3. This is absolutely wrong. None was pointed out by PW34, as per CRA 1403/09 & con. cases 5 records and the deposition. PW34 only referred to the rank of accused nos.1 to 3 and stated that they had beaten him. He did not identify the accused in court. It is not recorded by court in deposition whether they were identified by sight.
9. The 4th accused was also convicted for offence under Sections 394 and 397 IPC, but, even as per the charge framed against 4th accused, he had not voluntarily caused hurt to PW34. He had only allegedly shown a knife against PW2 and threatened him but, PW2 has no such case. PW2 gave evidence that he had not taken the accused in his autorikshaw and he had not stated anything to the police, as recorded in Ext.P32. The 4th accused was also not identified by PW34 from the court. Therefore, the fact whether 4th accused was involved in the offence itself is not in evidence of PW 34 or PW2.
10. In a case in which the accused is not previously known to the victim or the witness, the accused must be identified by the relevant witnesses from the court. The court must also record this fact as and when deposition is recorded. A particular accused is identified by the witness in court by pointing out the particular accused. It is not enough for the court to simply record evidence CRA 1403/09 & con. cases 6 with reference to the rank of an accused that he did some overt act, without making it clear whether such person was identified or not. The rank number is given to each accused by prosecution or the court. The witness has to be made to state which accused who stood in the dock committed the particular overt act by pointing out to him. But, evidence is totally silent regarding such fact. Therefore, this court is not in a position to hold, which accused among those who stood trial, committed the alleged overt act.
11. According to court charge, there is no allegation that nay one of the accused committed wrongful restraint. But, PW34 stated that four persons had wrongfully restrained him by holding iron pipes and knife. According to PW34, the 4th person is not present in the court. In the cross-examination, he stated that it is the 5th accused, who had used the knife. Therefore, it is not clear whether it was the 4th accused or the 5th accused who had carried the knife, MO6. In fact, there is no case, as per the court charge that 4th accused had done anything against PW34 or that he wrongfully restrained PW34, as stated by him. In the court charge, no allegation is also made against the 5th accused as having CRA 1403/09 & con. cases 7 wrongfully restrained PW34 or having held any weapon in his hand.
12. Therefore, the evidence of PW34 regarding the involvement of accused nos.4 and 5 about the overt act committed against him, the weapon carried etc. is shabby and is inconsistent with the charge. Based on such evidence, it cannot be said that the prosecution established the presence of 4th and 5th accused at the scene or of having committed any overt act against PW34. None of them were identified also. The 4th person who committed the accused was not present in court also.
13. Any way, in the absence of any allegation in the charge that the 5th accused committed any overt act against PW34, he cannot be said to have committed any wrongful restraint by using any weapon (MO4), as stated by PW34 and hence, on the basis of the evidence of PW34, no conclusion can be arrived at against accused nos.4 and 5. PW34 has no case that he had seen any knife in the hands of the 4th accused. There is also no allegation in the charge that 5th accused had committed any overt act against PW34 or any other person at the scene.
CRA 1403/09 & con. cases 8
14. It is also relevant to note at this juncture that PW34 stated in court that he was shown four persons on 16.5.2004, but he identified only two persons who had beaten him. In the absence of any evidence to show the involvement of accused nos.4 and 5 at the scene, they cannot be convicted for the alleged offences, especially in the absence of relevant particulars in the charge about the overt acts allegedly committed by them.
15. According to prosecution, MOs.284 to 459 were seized from the house of 4th accused by PW35, the Circle Inspector, under Ext.P8 mahazar. The said recovery was on 16.5.2004. As per Ext.P8(a), the disclosure statement, the 4th accused allegedly told the Circle Inspector (PW35) that he had kept the gold ornaments and money in his house and he would show the house and ornaments, if he is taken there. As led by the 4th accused, he reached his house and taken out the gold ornaments from his house to PW35.
16. There is no reason to disbelieve PW35. The 4th accused has no case that police officers have any motive against him for concocting a false case. There is no reason to disbelieve PW35 on the recovery. It is true that Investigating Officers have CRA 1403/09 & con. cases 9 not questioned the persons who pledged those articles in the institution run by PW34. But, the said omission is not sufficient to reject evidence relating to recovery of stolen articles from possession of 4th accused.
17. The evidence of PW34 shows that he identified from the court, all the articles siezed at the instance of 4th accused and from his house, as the articles stolen from his house. Those articles were seized at the instance of the 4th accused from his own house on 16.5.2004. The alleged theft was on 12.5.2004. Thus, as per evidence, it is proved that 4th accused was in possession of the stolen articles, within 4 days of the theft. He has no explanation for possession of the stolen articles and therefore, under Section 114 (a) of the Evidence Act, it can be presumed that he is either the thief or the receiver of stolen properties.
18. The incident happened on 12.5.2004 and recovery was effected on 16.5.2004 and hence, in the light of the recent recovery, 4th accused can be presumed to have committed theft of the stolen articles. Even though the evidence regarding his involvement at the scene, given by PW34 is shabby, in the absence of any explanation for the stolen articles by the 4th CRA 1403/09 & con. cases 10 accused, the court can draw presumption under Section 114(a) of the Evidence Act.
19. Regarding the evidence of recovery as against 5th accused, PW35 stated that a search was conducted in the house of 5th accused on 15.5.2004 and Mos.460 to 462 were seized from his house. But, PW35 has no case that the search was conducted pursuant to any statement given by the 5th accused. No statement is alleged to have been given by 5th accused to PW35, which is incriminating against the 5th accused. It is also not in evidence, under what circumstances he had gone to the house of 5th accused and conducted the search to recover MOs.460 to 462, under Ext.P10.
20. A mere search and recovery of stolen articles from a house cannot be treated as incriminating against the accused. Unless there is satisfactory evidence that the house is in exclusive possession of the particular accused, a recovery of stolen articles will not be incriminating against him. It can also be seen from the evidence of PW35 that though the articles, MOs.460 to 462 were found in a hidden state, he has not investigated into, as to who concealed the same. Therefore, on CRA 1403/09 & con. cases 11 the basis of the recovery of MOs.460 to 462, which are two gold bangles and a gold chain with locket, it cannot be said that 5th accused had any role in concealing the article or that he was in possession of those articles.
21. The exclusive possession of those articles by the 5th accused is not established by the prosecution and hence, the recovery of those articles cannot be made a ground to convict the 5th accused for any of the offences alleged against him. The other piece of evidence against 5th accused is the recovery of MO8 to MO13. Those articles are gold ingots and those are recovered at the instance of 10th accused. As per the prosecution case, 5th accused had given those articles to 9th accused and it is the 9th accused, who had handed over those articles to 10th accused.
22. The 9th accused is acquitted, since evidence was not sufficient or satisfactory to connect him with the crime. It can also be seen that there is no evidence on record to show that MO8 to MO13 (gold ingots) are stolen articles. Hence, the evidence adduced by the prosecution is not sufficient to convict the 5th accused for the alleged offences.
CRA 1403/09 & con. cases 12
23. Now, the case against accused nos.1 to 3 can be looked into. Learned counsel for first accused argued that the overt act alleged against first accused has not been proved by the evidence of PW34. It is true that PW34 stated in court that first accused beat him on the back as well on his arm with an iron pipe, but the evidence of the doctor (PW18) and the wound certificate (Ext.P23) will not reveal any corresponding injury on PW34. The injury sustained included an incised wound and fracture to the skull, as recorded in Ext.P23. The weapon used by first accused is also not produced in court.
24. It is also relevant to note at this juncture that at the commencement of the investigation and at the time of lodging First Information Statement ('F.I. Statement' for short) the number of persons involved in the offence are only two. F.I. Statement is stated to have been given by none other than the brother of PW34, after making an enquiry with PW34. Since F.I. Statement revealed involvement of only two person, crime was registered against two persons. The F.I.R. is Ext.P33(a).
25. It is also pertinent to note that the allegation made to the doctor was that it was an assault by "unidentified" persons. CRA 1403/09 & con. cases 13 The evidence of PW34 shows that he had no previous acquaintance with any one of the accused. In such circumstances, it is doubtful whether first accused committed any overt act at the scene, as alleged by PW34. In the absence of any evidence regarding causing of hurt by the first accused and he cannot be fastened with the liability of robbery also. The evidence of PW34 read with medical evidence would reveal that no injury was sustained by him at the hands of first accused at the alleged sites by beating with an iron pipe.
26. However, prosecution adduced evidence that on a statement given by first accused to PW37, recovery of an alleged stolen article is effected, under Ext.P18 mahazar. But, learned counsel for the first accused pointed out that the statement allegedly given by the first accused is that he would show one "Simon", who had purchased half of the gold biscuit given by him and pursuant to the said statement, recovery was effected, but Ext.P18 shows that it was not any "biscuit" or "portion of the biscuit", which was seized under Ext.P18. It has come out in evidence that MO 467, which is seized under Ext.P18, pursuant to a statement given by first accused is none other than a gold CRA 1403/09 & con. cases 14 ingot.
27. It is also pointed out that under the same mahazar, three gold pieces were also seized, even though first accused had not given any statement to PW37 regarding the three gold pieces. In the light of these infirmities, I am satisfied that the statement given by first accused to PW37 has no connecting link to the articles, which are stolen from the possession of PW34, especially since he has no case in his disclosure statement that any gold biscuit was stolen from his possession. PW34 has also not stated that any gold pieces were stolen from him. PW12, who is a witness to Ext.P18 has also turned hostile to the prosecution and did not support the case of the prosecution at all. In such circumstances, I find that first accused cannot be found guilty for offence of theft or robbery in respect of MO467 and MO465.
28. Now, coming to evidence relating to robbery against accused nos.2 and 3, I find that according to PW34, second and third accused had beaten him with iron pipes on his head and the doctor (PW18) also noted certain injuries on the head, as per Ext.P23 would certificate. As per the charge, it is the first accused who committed the theft. It is he who had taken away the gold CRA 1403/09 & con. cases 15 ornaments from the scooter. According to PW34 also, it was the first accused, who had taken away the gold ornaments and the currency notes from the scooter. But, neither in the charge nor in the evidence of PW34, it is alleged that the second or third accused had committed any theft.
29. The offence of robbery can be made out against a person, if, in order to commit theft or in committing theft or in carrying away or attempting to carry away property obtained by theft, the offender, for that end, voluntarily causes hurt etc. to any person. In the absence of any charge that accused nos.2 and 3 that they committed theft and in the absence of any evidence from the side of PW34 that second and third accused committed any theft, I find that there is no direct evidence regarding theft committed by second and third accused.
30. The trial court, on an analysis of the evidence on record, found that accused nos.1 to 5 have direct involvement in the commission of robbery and 4th accused was present and aiding such commission (vide paragraph 13). It is also held that evidence of PW34 makes it clear that the property in his possession was dishonestly and forcibly taken away by accused CRA 1403/09 & con. cases 16 (A1 to A5), after causing grievous hurt to him. The court also found that the identification of the accused in court by PW34 is proper. According to trial court, prosecution case is that while accused nos.1, 2, 3 and 5 were committing the offence (the offence is not mentioned), 4th accused was in the autorickshaw intimidating the autorickshaw driver (PW2) by means of a knife. Though PW2 turned hostile, the court held that his admissions in cross-examination probabilises the prosecution case.
31. The court below also relied upon evidence of recovery to hold that recovery of the stolen articles from possession of 4th accused soon after the occurrence probabilises the case that the accused had committed robbery. Fourth accused had no proper explanation to offer regarding possession. It was held. Therefore, involvement of accused nos.1 to 5 in dacoity is proved beyond reasonable doubt, it is also held. A number of gold items were recovered by the information provided by accused nos. 8 and 10 beyond reasonable doubt and that evidence makes it clear that 8th and 10th accused had knowledge that the articles were stolen during dacoity, the court below further held.
CRA 1403/09 & con. cases 17
32. On hearing both sides and on going through the judgment and records in this case, it appears that the trial court has not even tried to understand what exactly prosecution case is. Points were raised in such a fashion that overt acts alleged by the prosecution against each of the accused was not stated in the points for consideration. General allegations are raised whether accused nos.1 to 6 have committed dacoity etc. Section 354(1)(b) of Code of Criminal Procedure lays down that every judgment shall contain the point or points for determination, decision thereon and the reasons for the decision. Unless the points for determination are raised in an appropriate manner, the court cannot arrive at a correct decision.
33. The court below framed point for consideration, as if 6th accused also committed dacoity. Presence of 6th accused at the scene is not even seen mentioned in the charge framed by the court. As per court charge, only allegation against 6th accused is that he informed accused nos.1 to 5 over mobile phone about PW34 coming to the scene. Against accused nos.1 to 5, it is alleged that accused 1 to 3 and 5 came out of the autorickshaw and 4th accused threatened PW34, by showing a knife and kept CRA 1403/09 & con. cases 18 him away.
34. It also appears that the trial court did not try to find out what exactly dacoity is, as per law. A reading of Sections 390, 391 and 397 IPC, it is clear that a person can be convicted for dacoity if five or more persons conjointly commit or attempt to commit 'robbery'. Of course, persons aiding and committing such commission or attempt also will be liable for commission of dacoity, but it is an inevitable for prosecution to prove that accused committed 'robbery', if a person is to be convicted for offence of dacoity.
35. As per Section 390 of the IPC, in all robbery, there is either theft or extortion. In this case, extortion is not relevant because going by the allegations. This is a case of robbery involving theft only. As per Section 390, 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 theft, the offender, for that end, voluntarily causes or attempts to cause any person death, hurt or wrongful restraint or fear of instant death etc. A reading of the charge submitted by the police as well as the charge framed by the court and evidence CRA 1403/09 & con. cases 19 of PW34 reveals that the person who has allegedly committed theft is only the first accused. No other person is allegedly involved in commission of theft.
36. Theft is defined under Section 378 of IPC. Theft is not merely taking away the stolen article in an autorickshaw by a group of person. The persons who are carrying stolen articles in an autorickshaw cannot be said to be committing theft. A reading of Section 378 IPC reveals that whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, "moves" that property in order to such taking, is said to commit theft. To hold a person liable for theft, the prosecution must establish the ingredients of Section 378, of which, the main ingredient is "moving" of property out of the possession of a person without that person's consent.
37. The prosecution must establish that the property which was in possession of a person is moved by offender without the person's consent who intended to take dishonestly. Therefore, in this case, the person who committed theft, as per the admitted case of the prosecution, is the first accused and he alone. The CRA 1403/09 & con. cases 20 prosecution does not have a case that any other accused had moved the stolen articles out of possession of PW34. It is only alleged that the other accused had left the place in an autoricksaw along with the booty. But such an act cannot constitute an offence under Section 378 IPC.
38. The person who actually "moves" the property (stolen articles) from possession of the victim alone can said to have committed offence of theft. The court below, without noting that the allegation of the prosecution is only against first accused regarding theft, proceeded with the case as though all committed theft. The records do not reveal that accused nos.2 to 5 had, at any time, moved the stolen articles from the possession of PW34 and committed theft of stolen articles which were in possession of PW34, as stated in Section 378 IPC. Therefore, as far as accused nos.2 to 5 are concerned, there is not even an allegation that they committed theft of alleged stolen articles.
39. There is no case for the prosecution that 4th or 5th accused committed theft or voluntarily caused hurt or wrongly restrained PW34. Neither the prosecution nor as per the charge CRA 1403/09 & con. cases 21 framed by the court, 5th accused, at any time, moved the stolen articles from the possession of PW34 or that he had, in any manner, committed any overt acts such as hurt etc., which will make him liable for offence under Section 390 IPC. There is also no case that 6th accused either committed theft or committed any overt act to attract robbery. The court below, without taking note of any of these facts, a general point is framed by the trial court whether accused nos.1 to 6 committed dacoity.
40. Though the prosecution has a case that the 4th accused threatened PW2, the autorickshaw driver, showing a knife at the time of commission of various overt acts by the other accused, at the time of evidence, PW34 did not say in which overt act accused no.4 was involved. PW34 has no case that 4th accused committed any overt act either against him or against PW2. Though PW34 stated that four persons had wrongfully restrained him carrying iron pipes and knife, he stated that those persons were accused nos. 1 to 3 and the person, who was not present in court. The accused no. 4 was very much present in court on the said date, but he did not identify 4th accused as the person who was carrying the knife.
CRA 1403/09 & con. cases 22
41. Thus, from the evidence of PW34, it is evident that 4th accused did not commit any overt act either against PW34 or against any other person present at the scene, as alleged by the prosecution. PW2 was who was allegedly restrained by 4th accused was examined in court but, he turned hostile to prosecution. He also did not implicate 4th accused in the offence. He did not have a case that 4th accused was either present at the scene or that he had threatened him at the scene showing a knife. In such circumstances, going by the definition of robbery in Section 390 IPC, none of the accused 2 to 5 have committed overt act which would constitute offence under the said section.
42. It is also clear from evidence of PW34 that only four persons had gone to him at the scene and they had wrongfully restrained him, even though as per charge framed by court they had not restrained PW34. The number of persons involved at the scene, according to PW34, is only four. Out of this, only three persons allegedly assaulted him and one such person (A1) had removed the articles from his possession. It is clear that to constitute offence of dacoity under Section 391 IPC, there must be involvement of five or more persons. Such five persons must CRA 1403/09 & con. cases 23 conjointly commit robbery or attempted to commit robbery.
43. In the absence of any evidence to show that five or more persons conjointly committed robbery or attempted to commit robbery going by the evidence of PW34 and other evidence against accused, none of the accused can be convicted for offence of dacoity. The court below convicted accused under Section 395 IPC for commission of dacoity, which is an offence defined under Section 391 IPC. The said conviction is clearly illegal.
44. The trial court also convicted accused nos.1 to 5 under Section 397 IPC. According to Section 397, if at any time of committing robbery or dacoity, the offender uses any weapon or causes grievous hurt to any person or attempt to cause death or grievous hurt to any person the imprisonment with which such offence shall be punished shall not be less than 7 years. A reading of Section 397 IPC shows that in cases where an offender is punishable for the offence of robbery or dacoity, Section 397 IPC prescribes a minimum punishment of seven years, if such person uses any deadly weapon or causes grievous hurt to any person or attempt to cause death or grievous hurt to any person.
CRA 1403/09 & con. cases 24
45. But, in this case, accused nos.1 to 5 were found guilty of offence both under Sections 395 and 397 IPC and they are also sentenced under the said Sections independently, for rigorous imprisonment for 7 years. It was also ordered that the the sentences shall run consecutively. The said sentence is not legal for the following reasons. Even if the entire facts are admitted, a person can be convicted for offence under Section 397 IPC only if such person, at the time of commission of robbery, attempted to use any deadly weapon or causes grievous hurt to any person or attempted to cause death or grievous hurt to any person.
46. As per the admitted case of the prosecution, 5th accused had not used any weapon at all. He had not caused any grievous hurt to any person or attempted to cause death or grievous hurt, as per the charge framed by the court or lodged by the police. Of course, PW34 stated in his evidence that 5th accused was carrying a knife but he has no case that he had used the knife against any person or caused any grievous hurt to any person or made any attempt to cause death or grievous hurt to any person.
CRA 1403/09 & con. cases 25
47. It is also relevant to note that 5th accused was not even identified from the court. On the date of examination, 5th accused was not even present in court. In such circumstances, the conviction of 5th accused for offence under Section 397 IPC cannot be sustained. Since I have already held that the allegations and evidence adduced in this case would not reveal any offence of robbery or dacoity, as defined under Section 390 IPC against accused nos.2 to 6, none of such persons can be held guilty of offence under Section 397 IPC.
48. It is only in cases in which the offender uses deadly weapon or causes grievous hurt to any person etc. at the time of committing robbery or dacoity, such persons can be punished under Section 397 IPC. It is also relevant to note that as per Section 397 IPC, in a case in which there is commission of robbery or dacoity, the offender who uses deadly weapons or causes grievous hurt etc. alone can be punished under Section 397 IP.
49. At any rate, the offender who uses deadly weapon or causes grievous hurt or attempt to cause death or attempted to cause grievous hurt to any person cannot under any circumstances be punished for both offences under Sections 395 CRA 1403/09 & con. cases 26 and 397 IPC. If a person is found guilty of commission of offence of robbery or dacoity as per Section 397 IPC, minimum punishment is prescribed, if he uses deadly weapons or causes grievous hurt etc., under certain circumstances. Therefore, such persons cannot be punished for both offences under Sections 395 and 397 IPC and he shall not, at any rate, be ordered to suffer sentence consecutively. There is clear illegality in the sentence passed against accused nos.1 to 5.
50. Going by the charge framed by the court and also in the light of the discussion already made and the evidence of PW34, a question arises before me, whether accused nos.1 to 5 committed any overt act at the scene and if so, what is the offence committed by them. PW34 in his chief-examination stated that four persons voluntarily restrained him at the road, carrying iron pipes and knife. The knife is MO6. Iron pipes are MOs.5 and
14. Though three persons are alleged to have used iron pipes against PW34, the iron pipe allegedly used by first accused was not produced or marked by the prosecution.
51. PW34 also has not identified any iron pipe from court as having been used by first accused at the scene. PW34 also CRA 1403/09 & con. cases 27 deposed that accused nos.1 to 3 beat him with iron pipe on his head and body. The 2nd and 3rd accused were the first to beat him and they beat him on the head with iron pipe and he fell down. After his falling down, first accused beat him on the back as well as on the hand with iron pipe. First accused thereafter took the key of the two-wheeler in which he was travelling and opened the box beneath the seat and took the gold ornaments which were enclosed in a plastic bag. Thereafter, all the four persons got into an autorickshaw and escaped from the scene.
52. PW34 had a case in the beginning of the chief examination that more than four persons were involved in the offence. However, he made a vague allegation that MO6 was the knife which was used by 5th accused. He has no case that 5th accused used the knife against any person present at the scene. The 5th accused was not present in court and he was not identified also. Therefore, a single line in his evidence that MO6 is the knife used by the 5th accused is of no consequence at all. It cannot be used to convict fifth accused.
53. PW34 is the sole witness to the occurrence. Prosecution has no case that there is any other eye witness to CRA 1403/09 & con. cases 28 the occurrence. Even though it has come out from the evidence that some people were taking bath from a nearby place, nobody is examined or cited as witness to speak about the incident. The evidence of PW34 is not corroborated by the evidence of any of the eye-witness. In the above circumstances, his evidence is to be evaluated in the light of other evidence, like medical evidence, and other circumstances to see whether he is believable or not.
54. Before analysing the evidence of PW34 any further, it is worthy to consider the circumstances under which the crime was registered. The first information statement was given in this case by none other than the brother of PW34. He was not examined in this case, since he was no more. But his statement was lodged on 12.5.2004. The F.I. Statement was marked as Ext.P33 and F.I.R. is Ext.P33 (a) recorded by PW28, the S.I. of Police. As per the F.I.R., two persons had committed the offence. Their identity was not available. The accused were shown as "some two persons". It appears that first informant had a conversation with the injured PW34 in this case and it was thereafter that Ext.P33 was lodged.
CRA 1403/09 & con. cases 29
55. The investigation started on the basis of Ext.P33(a), though the crime was committed by only two persons. PW34 was examined by PW18-the doctor on the same day of occurrence at 7.10 p.m. on 12.5.2004. PW18 gave evidence that he examined PW34 and noted certain injuries on his body and the alleged cause stated by him was "assault by unidentified person." To the doctor, he had no case as to how many persons had attacked him or whether more than two persons were involved in this case.
56. It is only at a belated stage that involvement of more than two persons have come to light. Learned counsel for first accused argued that the evidence of PW34 is not corroborated by medical evidence. PW34 had deposed that first accused had beat him on his head and his back. He has no case that after he fell down first accused had beaten him on his head. But the evidence of PW18 will show that injury is sustained by PW34 neither on his back nor on his hand. The doctor had opined that iron pipes used as weapon of offence are likely to cause death. In such circumstances, the absence of corresponding injury on PW34 by beating with iron pipe by first accused casts doubt whether he is speaking the whole truth before court.
CRA 1403/09 & con. cases 30
57. However, evidence of PW34 need not be discarded on the above ground alone. It only cautions the court to scrutinise the evidence with greater caution. While doing so, the evidence of PW34 on the identification of accused assumes significance. PW34 had given evidence in court that he has no previous acquaintance with any one of the accused in this case. The incident happened on 12.5.2004 and PW34 was examined on 12.9.2007 after about 3 years and 4 months. It is true that as submitted by learned Public Prosecutor the incident happened in the broad day light at 5.30 p.m. and he had every chance for noting the features of all the accused and make a clear impression to identity all the assailants, but, at the same time, implicit reliance can be placed on the evidence of PW34 regarding the identification, only if there is evidence to show that he had occasion to identify the accused after the incident and before they were identified from the court.
58. In cases in which accused are not previously known to the victim, it is necessary that a test identification parade is conducted. But, admittedly, no test identification parade was conducted in this case by the investigating officer and he has no CRA 1403/09 & con. cases 31 explanation why this has not been done. None of the investigating officer has a case that PW34 had any occasion to see the accused after the incident and prior to the examination of the witnesses in court. Therefore, even if he had occasion to see the assailants at the scene, it may be possible that PW34 may commit a mistake in respect of the correct identification of the assailants.
59. I will look into whether there could be any such mistake being committed by PW34 in the absence of opportunity for him to identify the accused in a test identification parade or in any manner prior to the examination in court. The definite case of the prosecution is that 4th accused was present at the scene and as per the charge-sheet, he was the only person who was carrying a knife. The knife was seized from the scene. There is also a case for the prosecution that the 4th accused intimidated PW2 by using the knife. Therefore, if the memory of PW34 was not affected after the incident, it is likely that he would be able to identify the 4th accused as the person who was using the knife at the scene.
60. But, on 12.9.2007, the date of examination of PW34 in court, even though 4th accused was present in court and he had CRA 1403/09 & con. cases 32 opportunity to see him in the court, when he was asked to identify the 4 persons who were present at the scene, he not only failed to identify the 4th accused but stated in court that the accused, who was carrying the knife at the scene, was not present in court. From his evidence, it is clear that he implicated 5th accused, who was not present in court, as the person had a vital role. In such circumstances, it cannot be said that PW34 has clear memory for identifying the assailants, who were present at the scene. It is possible that he may commit a mistake.
61. The evidence of a witness, who has given evidence of the nature, is not quite safe to be acted upon, especially regarding identification of the accused at the scene. A doubt is cast on the identification of assailants by him and no reliance can be placed on his evidence regarding identification of the accused at the scene, especially in the absence of test identification parade. There is absolutely no explanation for the prosecution why no test identification parade was conducted. I had already observed that PW34 simply stated the rank of certain accused without pointing out them from court. Hence, it is doubtful whether he was in a position to correctly identify them. CRA 1403/09 & con. cases 33
62. I shall consider the evidence of recovery of the alleged stolen articles from accused nos.1 to 5. PW37, the Circle Inspector gave evidence that first accused was arrested on 27.8.2004, that is about 3 months after the incident. Pursuant to a confession statement made by first accused to him, which is recorded in Ext.P38, stolen articles were seized which are marked as MOs.467 and 465. The mahazar Ext.P18 was also attested by PW12. According to PW37, the alleged confession statement made by first accused to him that he would show Simon (PW12), who had purchased half of the gold biscuit, which were given by him and, accordingly, he proceeded to PW12 and as produced by him he seized MOs. 467 and 465.
63. Learned counsel for first accused pointed out that MO 467 is a gold ingot and MOs 465 are gold pieces. PW34 has no case that he had lost any gold ingot or gold pieces. He has a specific case that what was lost is gold ornaments. There is no evidence to show that MOs.467 and 465 were stolen from the possession of PW34 and hence, first accused cannot be convicted for any offence in the light of the recovery made, it is argued. It is also submitted that PW12 is the person who allegedly purchased CRA 1403/09 & con. cases 34 gold biscuits turned hostile to the prosecution and he did not support the prosecution.
64. On going though Ext.P38 and the evidence of PW37, it is clear that the reference made by first accused to PW37 is regarding the sale of half of gold biscuit. The prosecution has no case that any gold biscuit is stolen from the possession of PW34. Therefore, the confession statement allegedly made to PW37 is not incriminating as against first accused to convict him for any offence involving theft. It is also relevant to note that though he stated that half of the gold biscuit was purchased by PW12, he stated that first accused had not sold any gold biscuit or portion of it to him. Even if it is concluded that such a statement was made, in the absence of any evidence to show that PW34 sold any gold biscuits, the evidence of recovery is of no use as against first accused. Therefore, there is absolutely no evidence against first accused to reveal either his involvement in the offence at the scene or in connection with any alleged stolen articles involved in this case. The conviction entered against first accused is totally unsustainable.
CRA 1403/09 & con. cases 35
65. Now, I shall deal with the offence against 2nd and 3rd accused. As already held by me, it is not safe to act upon the evidence of PW34 to hold that accused nos.2 and 3 were present at the scene at the time of committing the offence. Therefore, they cannot be convicted for any offence relating to beating with iron pipes, as alleged by the prosecution. But, there is evidence relating to recovery from their possession. The incident happened on 12.5.2004 and PW35, the Circle Inspector, gave evidence that the second accused was arrested on 15.5.2005 and pursuant to a statement given by him as Ext.P6, which is marked as Ext.P6(a) that iron pipe, money and gold ornaments are kept in his house and that he would show the room and the articles and, as alleged by him, he reached the house of 2nd accused and seized MOs.16 to 147 which are gold ornaments.
66. He also seized MO14 iron pipe. PW34 did not say specifically whether MO14 was the weapon used by the 2nd accused. He generally said that iron pipes used by accused nos.2 and 3 are MO5 and MO14. MO469 is the bag seized from the house. Regarding the recovery of the articles from the house of 2nd accused, there is only the evidence of PW35. The goldsmith, CRA 1403/09 & con. cases 36 PW5, who had allegedly examined the gold ornaments and weighed the same, turned hostile to the prosecution. He specifically stated that he did not see the seizure of gold ornaments at the instance of accused.
67. However, there is no reason why the evidence of PW35 is discarded in respect of the recovery of the gold ornaments MOs.16 to 147. Those articles were seized pursuant to a statement given by 2nd accused to PW35. The recovery was effected on the third day of the incident. PW34 identified MOs.16 to 147 as the gold ornaments which were stolen from his possession. Nobody has come forward claiming any one of these articles. On a reading of the evidence of PW34, I do not find any reason to reject his evidence regarding identification of these gold ornaments.
68. Of course, challenge is made that the persons who had pledged the articles are not examined. It is also contended that the documents relating to pledging would be available in his shop, but those are not produced. In the absence of non- examination of any such witness or the non-production of the documents do not persuade me to reject the evidence of PW34 on CRA 1403/09 & con. cases 37 the question of identification of MOs.16 to 147, which are gold ornaments stated to have been pledged in a shop.
69. Learned Public Prosecutor strongly contended that the 2nd accused can be convicted for offence involving the stolen articles with the aid of Section 114(a) that he committed theft. It cannot be said that he is only a person who is in possession of stolen articles. Even if the evidence of PW34 regarding identification is rejected, the possession of the stolen articles within three days of the incident by 2nd accused is a strong evidence to conclude that he had committed theft of these articles, it is argued. It is well-settled that recent possession of stolen articles with the accused which is not satisfactorily explained can lead to the presumption under Section 114(a) of Evidence Act that he is the thief. Therefore, this is a fit case where 2nd accused can be convicted for commission of theft.
70. On a close reading of the records and the evidence, I am unable to accept this argument also. But, I have already observed that even the prosecution does not have a case that second accused had removed the stolen articles from the possession of PW34. Going by the definition of theft under Section CRA 1403/09 & con. cases 38 378 IPC, a person who has not moved the article from the possession of any person cannot be convicted for theft. When the prosecution does not have a case that 2nd accused committed any overt act which would constitute offence under Section 378 IPC, he cannot be convicted for offence of theft or any offence in which theft is involved.
71. In the absence of any allegation by the prosecution that he committed any overt act to constitute offence of theft and in the absence of anything in the charge laid by the police or the one framed by the court, no presumption can be drawn under Section 114(a) of Evidence Act to hold that he is the thief. It is only if there is such allegation that he is the thief, a presumption can be drawn by the court that he is the thief. However, the 2nd accused has no explanation under what circumstances he came into possession of MOs.16 to 147 and how those articles found in his house. The prosecution has a case that the booty was distributed among the accused and hence, in the absence of any explanation by the 2nd accused for the recent possession of MOs. 16 to 147, I find that it can be safely concluded that he is in possession of stolen articles which were stolen from the CRA 1403/09 & con. cases 39 possession of PW34, especially in the absence of any satisfactory explanation for the possession. Therefore, the 2nd accused can be found guilty for possession stolen articles MOs.16 to 147 and he has committed offence under Section 411 IPC.
72. Now, I shall deal with the acts committed by 3rd accused. For the reasons already discussed, the prosecution has failed to establish his involvement in any overt act at the scene. PW35 deposed that he had arrested 3rd accused and he had given a statement to him, which is recorded as Ext.P7(a). As per the statement given by 3rd accused to him, he had kept the gold ornaments and money in his house and he would show the same to him. Accordingly, 3rd accused produced a bag from the room in his house and the bag contained gold ornaments and money which were seized after causing PW5 to weigh the gold ornaments. Those were seized under a mahzar Ext.P7.
73. I have already held that the evidence relating to recovery made by PW35 cannot be discarded, since nothing is brought out in evidence to disbelieve his evidence. There is absolutely nothing on record to disbelieve the evidence relating to recovery. It is true that PW5 turned hostile to the prosecution CRA 1403/09 & con. cases 40 and he did not speak anything in support of the prosecution. PW10 is examined as a witness, who allegedly witnessed the recovery of gold ornaments from the house of 3rd accused. But, PW10 deposed that he had not seen third accused taking out any gold ornaments and giving the same to the police. The mere fact that the witnesses PWs. 5 and 10 did not support the prosecution is not a ground to discard the evidence of PW35 in the absence of any reason to do so.
74. The evidence of PW34, Ext.P7 and Ext.P7(a), MOs.148 to 284 were seized from the possession of 3rd accused pursuant to a statement given by him and as taken out by him from his house. MOs.148 to 284 are identified by PW34 as stolen gold ornaments. Therefore, the question is what offence is committed by him. As already discussed by me, in the case of 2nd accused, the prosecution has no case that the 3rd accused committed theft. Therefore, no presumption can be made in respect of 3rd accused committing any theft of gold ornaments. I have also held that evidence of PW34 regarding identification of the assailants at the scene is not safe to be acted upon.
CRA 1403/09 & con. cases 41
75. The 3rd accused has to answer for the seizure of the gold ornaments from his house and also his conduct and the disclosure statement, which are all incriminating. He has not explained the possession of such stolen articles. In the absence of explanation, the court can conclude that he was in possession of stolen articles knowing it to be stolen. The evidence of PW34 does not reveal the date of arrest and date of seizure. Still, it is in evidence that it was seized during the course of investigation. In the absence of any explanation for the stolen articles, I am satisfied that the 3rd accused can be convicted for offence under Section 411 of IPC.
76. Now, I shall deal with the offence relating to 4th accused. The prosecution has not proved that the 4th accused was present at the scene or that he involved in any overt act being committed against PW34. However, evidence is adduced to show that pursuant to his confession, stolen articles MOs.285 to 459, which are identified by PW34 as stolen gold ornaments, were seized from his house, pursuant to a confession statement made by him to the Circle Inspector (PW35). According to PW35, the Circle Inspector, 4th accused had made a confession statement to CRA 1403/09 & con. cases 42 him as recorded in Ext.P8(a) that he had kept the gold ornaments and the currency notes in his house and that he would show the place and he would produce the same.
77. Accordingly, the stolen articles were seized from the possession of 4th accused. It is seen from PW35's evidence that on 15.5.2004, 2nd accused was arrested and on the basis of the information received from him, the 4th accused was arrested. As observed by me, earlier, in the absence of any allegation that the 4th accused had committed theft of any gold ornaments from the possession of PW34, no presumption can be drawn under Section 114(a) that he is the thief. But, in the absence of any explanation for the possession of stolen articles MOs.285 to 459, it can safely be presumed that he has received stolen articles knowing them to be stolen and thereby he committed offence under Section 411 of IPC. No other offence is made out against 4th accused.
78. Now, coming to the allegations made against 5th accused also, I find that his presence at the scene is not proved by the prosecution. PW37, however, gave evidence that he was arrested on 16.10.2004 after about five months of the incident and he gave a confession statement to him that he had handed CRA 1403/09 & con. cases 43 over some gold ornaments to the 9th accused, who in turn, gave it to the 10th accused. But, as pointed out by learned counsel for 5th accused, no recovery is effected pursuant to such statement. It is also pointed out by him that the 9th accused was acquitted by the trial court itself. No other confession statement is allegedly made by 5th accused to PW37.
79. However, PW35 deposed that a search was conducted by him in the house of 5th accused and he had taken out a plastic cover which was kept beneath the thatched roof and those were seized under Ext.P10 mahazar. Those articles are Mos.460 to 462. Those are gold bangles and gold chain. The search was not conducted pursuant to any statement given by 5th accused to PW35. It is also relevant to note that though confession statement is made as Ext.P7(a), there is no seizure pursuant to such statement. The only incriminating evidence, the prosecution relies upon is the seizure from the house of accused no.5.
80. Even if the entire prosecution case is admitted, it will only reveal that the articles MOs. 460 to 462 are seized from the house of accused no.5. But, there is nothing in evidence to show CRA 1403/09 & con. cases 44 whether he is the owner of the house or he is in possession of the house. There is no evidence to show whether any other members of the family are residing in the house. In short, there is nothing to show whether the 5th accused was in exclusive possession of the house at the time when the seizure was made as argued. Unless the accused is in exclusive possession of the house from where the articles are seized, it cannot be said that he is in possession of the articles as per law.
81. Since it is not established by the prosecution that the house from where the articles were seized under Section Ext.P10 search list is owned or occupied by 5th accused, it is not possible to infer that he was in possession of the articles seized as per Ext.P10. As per law, if an article is seized from a building, the person can be made liable for constructive possession only if there is evidence to infer that he is the owner or the person in possession of the building at the relevant time. There is lack of evidence on this aspect and therefore, the seizure under Ext.P10 cannot be used as an incriminating evidence against 5th accused. Since the prosecution failed to establish that 5th accused was in possession of the articles seized, he is bound to explain the CRA 1403/09 & con. cases 45 possession. Therefore, there is lack of evidence to connect 5th accused with crime and hence, he cannot be found guilty under any of the offences for which he is charged.
82. The 8th accused was convicted and sentenced under Section 412 of IPC. According to prosecution, and as per the charge laid, accused nos. 8 and 10 sold gold ornaments knowing that those are gold ornaments and thereby aided accused nos. 1 to 5. As per Section 412 IPC, a person will be liable under the said Section if he dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen.
83. It is clear from Section 412 IPC that a person will be liable under the said Section only if dacoity is involved. He must know or must have reason to believe that the possession of the property has been transferred by the commission of dacoity or he must receive dishonestly such property from a person whom he CRA 1403/09 & con. cases 46 knows or has reason to believe to belong to a gang of dacoits. But, absolutely no evidence is adduced with respect to the knowledge or the belief which is relevant under Section 412 of IPC. What makes the person liable under Section 412 is the requisite knowledge or reasonable belief as stated in Section 412. But, nothing is available in evidence to infer any such knowledge or belief. Therefore, the conviction for offence under Section 412 against 8th and 10th accused is not sustainable.
84. However, the prosecution adduced evidence to show that 8th accused was arrested on 9.9.2004, after 4 months of the incident and he gave a disclosure statement to PW37, which is marked as Ext.P42 and pursuant to the same he had seized stolen articles (MOs 3 and 4 gold rings) as per the disclosure statement he gave two gold rings which was given to him by 5th accused in a shop and he would show the person who had purchased it. On the basis of such information, PW37 reached the shop of 8th accused. PW17 took out two gold rings stating that those were purchased from the 8th accused and produced the same to PW37 on 9.9.2004 at about 6.30 p.m. Those were seized under Ext.P27.
CRA 1403/09 & con. cases 47
85. To corroborate the evidence of PW37, PW17 was examined. He deposed that 8th accused gave two gold rings to the witness and he gave money also. From the evidence of PW37and PW17, it will appear that 8th accused gave a confession statement as Ext.P42 that he had given two gold rings in a shop and that he will show the shop and the person who has purchased the same. PW37 has also a case that 8th accused went to the shop of PW17 and pointed out PW17. What is incriminating in the evidence of PW37 against 8th accused is only the conduct of 8th accused in showing PW17.
86. But in the evidence of PW17, he did not corroborate the evidence of PW37 on this aspect. He only said that in 2004, the 8th accused sold a gold ring weighing 8 grams. He has not identified MOs 4 and 5 as the gold ornaments sold to him by 8th accused. It is seen from the evidence of PW17 that the 8th accused sold two gold rings to him. He stated only with respect to one gold ring which was sold by 8th accused to him. He only stated that he produced two gold rings to the police but he has no case that the 2nd gold ring was given by the 8th accused to him.
CRA 1403/09 & con. cases 48
87. PW17 identified the two gold ornaments produced before the police as MO3 and MO4, but he has no case as to when these gold ornaments were sold by 8th accused to him. In the chief examination, he has not stated even roughly, the period during which he sold the ornaments to him. However, he admitted in cross-examination that he told the police that he sold the same four months back. There is nothing in evidence to show on which day he was questioned by the police.
88. On a reading of the evidence of PW37 and PW17, it appears that MO3 and MO4 were produced as the gold rings which were sold to PW37 by the 8th accused, which was seized under Ext.P27 mahazar and that PW37 happened to go to the shop of PW17 pursuant to the disclosure statement made by the 8th accused to him and as pointed out by him. It is also clear that MO3 and MO4 rings were in possession of the 8th accused about four months prior to the questioning of PW17.
89. The seizure was on 9.9.2004 and the incident is on 12.4.2004. PW34 also identified MO3 and MO4 as the gold rings stolen from his possession. Therefore, the 8th accused is bound to explain the possession of the gold rings, MO3 and MO4. He has CRA 1403/09 & con. cases 49 failed to do so. Hence, it can be presumed under Section 114(a) of the Evidence Act that he has received the stolen gold rings knowing those to be stolen. Hence, 8th accused has committed an offence under Section 411 of Indian Penal Code.
90. Now, coming to the 10th accused, I find that the evidence against him is in respect of five recoveries effected by PW37, the Circle Inspector. He deposed that the 10th accused was arrested on 16.10.2004 and he made a confession to him and the disclosure statement is Ext.P44. He seized several gold ornaments pursuant to a disclosure statement such as Exts.P44, P45, P46, P47 and P48. In all these statements, he has stated that he had given "gold" to the persons from whom the alleged recovery was effected. The evidence of PW7 reveals that what was seized under the various mahazars such as Exts.P28, P29, P30, P31, P32 are all gold ingots.
91. The prosecution has no case that gold ingots were stolen from the possession of PW34. His definite case is that gold ornaments were stolen from his possession. However, he has identified the gold ingots and from the cross-examination, it is clear that he could not establish the possession of such gold CRA 1403/09 & con. cases 50 ingots by him. Therefore, even if disclosure statements are made to PW37 and even if gold ingots, MOs.8 to 13 were seized, no criminal liability can be attached to the 10th accused for possession of those articles.
92. So long as there is no evidence to show that those gold ingots are obtained by melting the gold ornaments which were stolen from the possession of PW34, the 10th accused cannot be held liable for offence under Sections 412 or 411 for possession of such gold ingots. The recovery is of no consequence, since Mos.8 to 13 are not proved to be the stolen articles. No evidence is adduced to show that the gold ornaments stolen from the possession of PW34 were melted and converted into MOs.8 to 13. Therefore, the prosecution has not proved any offence against the 10th accused.
93. The learned Additional Sessions Judge has not considered the matter in the proper perspective. He has not even raised the points for determination, as required by law. He has not paid his attention to the relevant aspects, which are to be decided. But, on some statements rendered by him in the judgment, he has convicted accused nos.1 to 5 for offences under CRA 1403/09 & con. cases 51 Sections 395 and 397 of the Indian Penal Code and accused nos.8 and 10 for offence under Section 412 of the Code.
94. In the light of the discussions made, accused 2, 3, 4 and 8 are found guilty of offence under Section 411 IPC and they are convicted thereunder. Learned counsel for appellants were heard on the question of sentence. Learned counsel for second accused submitted that second accused has two minor children, aged 7 years and one year. He is a headload worker and he is in custody for the past 504 days. As far as third accused is concerned, it is submitted that he is aged 19 years, as per the mahazar and he has undergone one year and four months' imprisonment. The 4th accused is aged 23 years as per the mahazar and he is also in the custody for the past one year and four months. The 8th accused is in custody for the past 191 days. Hence, it is submitted that a lenient view may be taken and the period, which they have already suffered may be fixed as sentence for the offences, for which they are convicted.
95. Learned Public Prosecutor was heard in the matter and he submitted that second accused is involved in two other cases of theft, robbery etc. and third accused is involved in two CRA 1403/09 & con. cases 52 other cases of theft, robbery etc. Against the 4th accused also, there is one more case under Sections 326 and 308 of the Indian Penal Code. As against 8th accused, there are no reported cases. On hearing both sides and on considering the various facts and circumstances, I find that there are no extenuating circumstances, which call for any leniency in sentence.
In the result, the following order is passed :
(i) The conviction and sentence passed against accused nos.1 to 5 under Sections 395 and 397 IPC are set aside.
(ii) The conviction and sentence passed against accused nos.8 and 10 under Section 412 IPC are set aside.
(iii) Accused nos.1 to 5 are found not guilty and they are acquitted of offences under Sections 395 and 397 IPC .
(iv) Accused nos.8 and 10 are found not guilty of the offence under Section 412 IPC and they are acquitted of the said offence.
(v) Accused nos.2 and 3 are found guilty and each of them are convicted and sentenced under Section 411 IPC to undergo rigorous imprisonment for a period of three years and to pay a fine of ` 25,000/- each under the said section. In default of payment of fine, each of them will undergo imprisonment for six months. The fine, if realised, will be paid to PW34.
CRA 1403/09 & con. cases 53
(vi) The 4th accused is found guilty and is convicted and sentenced under Section 411 IPC to undergo rigorous imprisonment for two years and to pay a fine of ` 10,000/- and in default of payment of fine, to undergo imprisonment for two months. The fine, if realised, will be paid to PW34.
(vii) The 8th accused is found guilty and he is convicted for offence under Section 411 IPC.
The period of detention which he has already undergone will be treated as the sentence for the said offence.
(viii) Accused nos.1, 5, 8 and 10 are set at liberty forthwith, if their detention is not wanted in any other case.
(ix) Issue release order in respect of accused nos.1 and 10 forthwith.
Appeal No.1424/09 is allowed. Appeal Nos.1854/09 and 1425/09 are partly allowed. Appeal No.1403/09 is dismissed.
Sd/- K.HEMA, JUDGE krs.