Kerala High Court
Sajith vs Complainant on 10 August, 2011
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE V.K.MOHANAN
THURSDAY, THE 11TH AUGUST 2011 / 20TH SRAVANA 1933
CRL.A.No. 2439 of 2009
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(SC.768/2008 of ADDL. DISTRICT & SESSIONS COURT (ADHOC), THRISSUR &
CP.6/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I,CHALAKUDY)
....................
APPELLANT(S): ACCUSED NO.4:
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SAJITH, AGED 26 YEARS, S/O.BABU,
PUNOLPARAMBIL HOUSE, NELLIKUZHI VILLAGE
KOTHAMANGALAM, ERNAKULAM DISTRICT.
BY ADV. SRI.P.B.ASOKAN
SMT.P.LATHA
SRI.P.J.UNNIKRISHNAN
SRI.O.U.ANISH RAJ
SRI.AJAY V.ANAND
SRI.PRAISHEEL PRAKASAM
SMT.E.K.SAJNA
SMT.LAJI SAM ZACHARIA
SRI.P.B.AJOY
RESPONDENT(S): COMPLAINANT
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STATE OF KERALA, REPRESENTED BY CI OF POLICE,
CHALAKKUDY THROUGH PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.P.A.SALIM.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/08/2011, ALONG WITH
CRL.A.NO.1165/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V.K.MOHANAN,J
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Crl. A.Nos. 2439 of 2009 & 1165 of 2010 `C.R'
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Dated this the 10th day of August, 2011
JUDGMENT
As the above two appeals are arising out of the same judgment dated 22.8.2009 in SC No. 768/2008 of the Court of Additional District and Sessions Judge (Fast Track Court No-I), Thrissur and the question of facts and law involved are identical, the above appeals are heard together and being disposed by this common judgment.
2. Crl.A No.2439/2009 is preferred by accused No.4 in SC No.768/2008 through a counsel of his choice, whereas Crl.A No.1165/2010 is preferred by the 2nd accused, in the above sessions case, who is undergoing imprisonment in pursuance of the above judgment and thus he preferred the above appeal from the jail. On receiving the appeal as ordered by this Court, the registry has appointed Smt.V.Sreeja, counsel as State Brief to prosecute the appeal for and on behalf of the said appellant. Thus, when Crl.A.No.2439/2009 came up for admission, received the same in file and this Court, by order dated 23.12.2009 in Crl.M.A.11324/2009, suspended the execution of the sentence imposed against the appellant therein/4th accused and thus, he is on bail whereas the other appellant is undergoing imprisonment.
3. Thus the challenge in these appeals is against the conviction and sentence imposed on the appellants, u/s.397 r/w Section 34 of the Indian Penal Code (hereinafter referred to as 'IPC'), vide judgment dated 22.8.2009 in SC No.768/2008 of Crl.A.Nos.2439/2009 & 1165/2010 :-2-:
the court of Additional District and Sessions Judge (Fast Track Court No-I), Thrissur.
4. The prosecution case in brief is that in furtherance of the common intention of the accused in committing theft of a Tata Indigo car, bearing registration No.KL 42/6770 from the possession of the taxi driver namely, Ramachandran-PW1, the accused caused hurt to Ramachandran and attempted to cause his death and dishonestly taken away the car at 16.30 hours on 6.10.2007. With the above allegation, Crime No.163/2007 was registered in Vettilappara Police Station, for the offence punishable u/s.397 of IPC. After investigation, the Police had preferred the report before the Judicial First Class Magistrate Court, Chalakudy.
5. When the final report was filed, all the accused were arrested and except A2, A1, A3 and A4 were on bail. At the time of committal, besides A2, A4 alone appeared and accused Nos.1 and 3 jumped over the bail condition and thus, they were absconding. Thus, the learned Magistrate took cognizance for the said offence and instituted CP No.6/2008 and subsequently, by his order dated 25.4.2008 in the above proceedings, the case with respect to A2 and A4 was committed to the Sessions Court, wherein it was received as SC No.768/2008 and the said case was subsequently, made over to the trial court for disposal.
6. After getting the file from the Sessions Court, and on the production of the 2nd accused and on the appearance of the 4th accused, the trial court has framed a formal charge against the said accused after hearing the accused as well as the Crl.A.Nos.2439/2009 & 1165/2010 :-3-:
prosecution for the offence punishable u/s.392 of IPC and when the said charge was read over and explained to the accused, they denied the same and pleaded not guilty. Consequently, the prosecution adduced its evidence consisting of the deposition of PWs.1 to 12 and the documents Exts.P1 to P13. Besides the above, MO1 plastic rope has also been identified and marked. When the prosecution evidence is closed, the accused were questioned u/s.313 of Cr.P.C and the incriminating circumstances and evidence, which emerged during the prosecution evidence, when put to the accused they denied the same and they took a defence of total denial. In the light of the evidence and materials on record and considering the rival plea taken by the parties, the court below formulated 4 points for its consideration and finally it was found that the accused has used MO1 and attempted to cause the death of PW1 and thus, the prosecution has brought out the ingredients of the offence of robbery under Section 390 and the accused attempted to cause the death of PW1 by using MO1 at the time of committing the robbery and thus, the prosecution has proved the offence punishable u/s.397 r/w S.34 of IPC. Thus, the learned sessions judge found that the accused are guilty u/s.397 r/w S. 34 of IPC and accordingly, convicted them thereunder. On such conviction, both the accused are sentenced to undergo rigorous imprisonment for 10 years u/s.397 r/w S.34 of IPC. Set off is allowed. It is the above finding, conviction and sentence are challenged by accused No.2 and 4 by filing the above two appeals.
7. The specific case of the prosecution is that the accused came to the taxi stand Crl.A.Nos.2439/2009 & 1165/2010 :-4-:
at Aluva where PW1 was plying his vehicle and the 1st accused Yoonus hired the car of PW1 under the pretext to go to Vazhachal to meet his friend said to be a Forest Guard, and as the driver, PW1 has agreed for the trip and when he started the car, the other accused also boarded into the car and thus, the car departed from the stand towards Vazhachal at 16.30 hours on 16.10.2007. According to the prosecution, when the car reached at Choozhimedu bridge,(Choozhimedu palam) nearly two kms. away from Puliyilappara junction, at 8.00 p.m, the 4th accused Sajith, who is the appellant in Crl.A.No.2439/09, asked PW1 to stop the car under the guise for urination. The 3rd accused Shyju was sitting in the front seat and others were sitting in the back seat, among which the 1st accused Yoonus was sitting just behind the driver, PW1. According to the prosecution, when the car stopped as directed by fourth accused, the 1st accused put a tangled knot made up of a plastic rope-MO1 in the neck of PW1 with an intention to kill him by using the said rope. According to the prosecution, seeing the above act of A1, PW1 inserted his left hand inside the knot and prevented the 1st accused from tightening the knot in his neck. Thus, according to the prosecution a scuffle was occurred between them and due to the death fear of PW1, he kicked at 3rd accused Shyju forcibly, who was sitting on the front seat and as a result of it, the front left door was opened and the 3rd accused fell out of the car and PW1, after escaping from the clutches of the 1st accused, jumped out of the car through the left front door. Then, the 1st accused shouted and commanded the 2nd accused to catch PW1 and when Crl.A.Nos.2439/2009 & 1165/2010 :-5-:
2nd accused caught hold of the neck of PW1, he narrowly escaped by biting on the hand of the 2nd accused, and at that time, the knot on the neck of PW1 was loosened and he escaped by running towards the back side of the car. According to the prosecution, at that time the other accused entered into the car and the 1st accused drove the car towards the direction in which the car was faced, when it was stopped and removed the same from the scene of occurrence and by that incident, PW1 incurred a loss of `.4,50,000/-.
8. It is the further case of the prosecution that the place of occurrence is inside the reserved forest area, from where the injured-PW1 ran away on account of his death fear and on his way, he met a man running on a motor bike and the injured revealed all what happened to him and thus, injured was taken to nearby place, in the motor bike namely, at Puliyilappara junction, where mobile phone range was available. Thus, PW1 collected the phone number of Vettilappara Police Station, through the motorists from a nearby shop, and thus, PW1 informed the incident to the Police and the Police came there and the injured was taken to Vettilappara police station in the police jeep. According to the prosecution, in the scuffle, the victim has received injuries on his left hand finger and Vettilappara Police recorded the statement of PW1 and registered the above crime and the injured was referred to the nearby Govt. Hospital for treatment. On furnishing information to the relatives of PW1 at his home town, they along with his kith and kin came to the police station and the injured was taken to the hospital. Crl.A.Nos.2439/2009 & 1165/2010 :-6-:
According to the prosecution, the incident was published with the assistance of the general public and the police got information about the vehicle and thus, the vehicle was seized as well as two accused were taken into custody on the next day. Thus, according to the prosecution, the accused has committed the offence punishable u/s.397 of IPC.
9. As I indicated earlier in order to substantiate the above allegation, the prosecution has examined PWs.1 to 11 and produced Exts.P1 to P13 and MO1 plastic rope. Among the prosecution witnesses, PW1, who is the victim and the injured, is the star witness of the prosecution. When he was examined, he had categorically deposed before the court below about the entire incident, strictly in accordance with the prosecution case. PW1 has identified the accused during his examination in the court and MO1 was identified and marked. PWs.2 and 3 are the taxi drivers of Aluva bus stand, who were plying vehicles along with PW1, and during their examinations, they have deposed in terms of the prosecution case and identified the accused as the persons who hired the vehicle of PW1 as alleged by the prosecution. They are also witnesses to Ext.P3 seizure mahazar of the car bearing registration No.KL 42/6770. PW4 is the station house officer of Malakkappara Police Station, who deposed before the court that about 8.20 p.m on 6.10.2007, he got information from Vettilappara Police Station regarding the incident. According to him he conducted raid along with other Police officials within the Malakkappra Police Station limit and made enquiries about the Crl.A.Nos.2439/2009 & 1165/2010 :-7-:
stolen car. He had also deposed that during such enquiry himself and party gone to Ropmattam and gave publicity about the incident to general public and sought their help. According to PW4 though, himself and party waited till the midnight on 6.10.2007 at Ropmattam, they did not receive any valuable information and thus, they returned to the Police Station and the general public gathered there waited, continuously for 2 days to find out the culprits. According to PW4, at 6.00 p.m on 7.10.07, one person from Ropmattam, gave a phone message to Malakkappara Police Station that they had seen the car in question and the culprits at Ropmattam and the car was not stopped in spite of stop signal given and it is further informed PW4 that the culprits escaped from there and drove the car towards Malakkappara direction. Thus, according to PW4, he along with Police Officials while waiting near to the Malakkappara Police station they happened to see the stolen car coming towards them.
Thus, according to PW4, on seeing the Police party, the culprits stopped the car there and ran towards the Tea Estate. According to PW4, the general public who followed the car also came there and joined with the police to catch the culprits and by the evening of 7.10.2007, accused Jomon and Shyju were caught from the Tea-Estate. According to PW4, they could not chase the other accused namely Sajith and Yoonus and they escaped by the side and the car was taken to the custody and brought to the Police Station.
10. PW5 is an independent witness. He is a permanent resident of Crl.A.Nos.2439/2009 & 1165/2010 :-8-:
Malakkappra. He had stated that the stolen car crossed the town, but the same did not stop in spite of the signal given by them, and they gave intimation to Malakkappra Police Station and chased the car. According to PW5, he was also a member of the raiding party, consisting of general public and he had also deposed that they chased the culprits and two of them were booked and PW5 identified the accused in the court. PW6 is the registered owner of the vehicle in question and he had deposed that PW1 is the driver of the vehicle. He had also admitted that the vehicle was released to him from the Police Station on the basis of Kychit executed by him. PW7 is also an independent witness who deposed that he gave phone number of Vettilappra Police Station to PW1 and according to him, PW1 approached him at 8.30 p.m on 6.10.2007 and the victim disclosed about the incident to him and sought his assistance. PW8 is another independent witness, who is an attester to Ext.P4 scene mahazar. When he was examined, he had identified his signature in Ext.P4 and deposed that he was present at the site, when Ext.P4 was prepared. He had also deposed before the court that the Police seized MO1 in his presence and he identified the same also. PW9 is the doctor, who examined PW1 on 7.10.07 and he issued Ext.P5 wound certificate. When PW9 was examined, he had deposed in terms of the contents of Ext.P5 wound certificate.
11. PW10 is a Forest Guard, who was on duty at relevant time in the Forest Check post at Charpa. The check post is coming within the Vettilappara Police Station Crl.A.Nos.2439/2009 & 1165/2010 :-9-:
limit. When PW10 was examined, he had deposed that at about 7.15 p.m on 6.10.07 a Tata Indigo car bearing registration No.KL 42/6770 came to Charpa Forest Check Post and the 4th accused Sajith made endorsement in the check post register. The relevant entry is marked as Ext.P6. According to PW10, he was told by 4th accused that the car was going to Valppara. Through PW10, the relevant entry at page Nos.52 and 53 of the register (Ext.P6) is marked as Ext.P6(a). When PW10 was examined, A4 was absent in the court. During the deposition of PW10, he had deposed that he had identified the 4th accused, Sajith at the office of CI of Police, Chalakkudy on 1.11.2007 and Ext.P6 contained his signature. According to PW10, he can very well identify the 4th accused, since he had seen him twice, i.e just before the time of occurrence and on another occasion during the course of investigation.
12. PW11 is the then Sub Inspector of Police, Vettilappara Police Station and he deposed that on getting phone message from the injured he passed the wireless message about the incident to the nearest Police Station and took steps to book the culprits. He had also deposed regarding the entire incident after getting the information from PW1. According to PW11, he recorded Ext.P1 FI Statement of PW1 and registered Ext.P1(a) FIR on the basis of Ext.P1 FI Statement. According to PW11 as directed by the CI of Police, Chalakkudy he prepared Ext.P4 scene mahazar and also seized MO1, material object. PW11 further deposed that, he had recorded the arrest of A2 and A3 at about 8.00 p.m on 7.10.2007.
Crl.A.Nos.2439/2009 & 1165/2010 :-10-:
13. According to PW11, after arrest, on questioning A2 and A3, they divulged the information about the involvement of A1 and A4 in the said crime. Since the full address of A4 and A1 were not available , they were not arrayed as accused. According to the prosecution, A4 surrendered before the CI of police Chalakkudy on 31.10.2007, who was examined as PW12 and on the basis of intimation given by PW12, PW11 went to the office of PW12 and recorded the arrest of A4 at 7 p.m on 31.10.2007. According to Prosecution, as requested by PW12, PW4 along with some of the natives of Malakkapara, who are the persons joined with Malakkapara police for searching the accused on 7.10.2007, went to the office of PW12 and identified A4 and A2. After the arrest of A4 and after his identification by the witnesses, A4 was produced before the Judicial First Class Magistrate, Chalakkudy with Ext.P13 remand report.
14. The investigation was continued by PW12, who finally laid the charge. PW12 deposed that the arrested accused were produced before the witnesses and they properly identified the accused, during the course of investigation. These are the evidence and materials discussed, referred and relied on by the learned Sessions Judge in support of his findings and convicting the accused under section 397 read with Section 34 of IPC and the present appeals are preferred against the above findings and conviction and sentence.
15. I have heard Sri P.B. Ajoy, the learned counsel appearing for the Crl.A.Nos.2439/2009 & 1165/2010 :-11-:
appellant in Crl.A.No.2439/2009 and Smt. V.Sreeja, the counsel appearing for the appellant in Crl.A.No.1165/2010 and Sri P.A.Salim, the learned Pubic Prosecutor appearing for the State.
16. Smt. Sreeja, the learned counsel appearing for A2, the appellant in Crl.A. No.1165/10 submitted that against A2, no overt act is alleged and the prosecution has miserably failed to prove any active role against A2 in the commission of the offence. It is also the submission of the learned counsel that MO1 rope is not a deadly weapon and therefore no offence is attracted against A2. It is the further submission of the learned counsel that the prosecution has miserably failed to establish the identity of A2 and his presence in the commission of the offence as alleged by the prosecution. According to the learned counsel, no proper test identification parade was conducted and all the witnesses including PW1 have no prior acquaintance with A2 and therefore, the evidence of PW1 and other witnesses regarding the identity of the accused cannot be accepted as valid and legal, especially in the absence of test identification parade. Thus according to the learned counsel, the appellant/accused is entitled to get an acquittal.
17. Sri P.B.Ajoy, the learned counsel for the appellant in Crl.A.No.2439/2009, preferred by A4 raised several factual and legal questions in his argument in support of his fervent plea for an acquittal of A4. The learned counsel vehemently submitted that the identity of A4 is not proved legally and properly and there is no Crl.A.Nos.2439/2009 & 1165/2010 :-12-:
legal evidence to establish the identity and role of the accused in the commission of the offence alleged. According to the learned counsel, Ext.P1(a) FIR is a concocted document since in the FIR, which is allegedly prepared at the initial stage of investigation, the names of the accused are shown in the order as arrayed in the final report, though in Ext.P1 FIS, the names of four accused are given in a different order. According to the learned counsel, PW1 did not sustain any injury in the nature mentioned in Section 397 of I.P.C. so as to attract Section 397 IPC. According to the learned counsel, even as per the prosecution allegation, the injury was inflicted and weapon was used by A1 and therefore, as far as A4 is concerned, Section 397 is not at all attracted. It is the further submission of the learned counsel that on a perusal of Ext.P2 trip sheet, the same can be seen as a forged one since the same was produced by PW1 from his possession, when the car was in the custody of Police. According to the learned counsel, Ext.P6 register which is allegedly maintained in the check post at Charpa, cannot be relied on because of the inherent discrepancy contained therein. On the strength of the endorsement contained in Ext.P6, it is the further submission of the learned counsel that in the remarks column it was shown that the car in question was returned and therefore, further allegation of the prosecution that the car was seized from the jurisdictional limit of Malakapara police station is incorrect and the same will go against the prosecution case.
18. The learned counsel Mr. Ajoy emphatically submitted that the identity of Crl.A.Nos.2439/2009 & 1165/2010 :-13-:
A4 is not established beyond reasonable doubt and in support of the above argument, the counsel invited my attention to the depositions of PW4, PW5 and PW10. According to the learned counsel, the evidence of PW4, who is a police officer, and PW5, though an independent witness, are not free from doubt. It is further submitted that the forest guard who was cited as PW10, and who claimed to have identified A4, is a highly interested witness and PW10 has also no prior acquaintance with A4 and therefore PW10 cannot be believed. The learned counsel on the strength of the deposition of PW5 submitted that PW5 identified A4, as instructed by PW12 and hence the evidence of PW5 cannot be taken as a legal evidence to establish the identity of A4. According to the learned counsel , PW10 has never spoken to any feature of A4 so as to identify A4 either at the police station or in the court. In support of the above submission, the learned counsel placed reliance upon the decision of the Apex Court reported in Brij Mohan v. State of Rajasthan (AIR 1994 SC 739); S.C. Bahri v. State of Bihar (AIR 1994 SC 2420).
19. Besides the submission based upon the factual inputs and the evidence, the learned counsel advanced an argument to the effect that Section 397 of IPC is not attracted against A4 in the light of the specific allegation of the prosecution and in view of the available evidence involved in his case. According to the learned counsel Section 397 of IPC will be attracted only against the "offender" mentioned in Section 397 of IPC and in the present case, even according to the prosecution, the Crl.A.Nos.2439/2009 & 1165/2010 :-14-:
overt act is attributed against A1 only and therefore, A4 cannot be convicted under section 397 or with the aid of Section 34 of IPC. It is the further submission of the learned counsel that the ingredients of Section 394 have not been established by the prosecution and the evidence from the side of prosecution is not sufficient to show that A4 "is concerned" in committing the offence. It is also the submission of the learned counsel that as no overt act is attributed against A4 in the commission of the offence, A4 will not come under the purview of "offender" as mentioned in Section 390 of IPC with respect to robbery. Thus, according to the learned counsel, no offence under section 392 or 394 or 397 is attracted against A4 and therefore, he is entitled to get a clear acquittal. In support of the above submission, the learned counsel placed reliance upon the following decisions: Aslam Alias Deewan v. State of Rajasthan [(2008) 9 SCC 227); Shri Phool Kumar v. Delhi Administration [(1975) 1 SCC 797]; Ashfaq v. State (Govt. of NCT of Delhi) [(2004) 3 SCC 116]; Kannan v. State of Kerala [(1979) 3 SCC 319] and Shikandar v. The State (1984 CRI.LJ NOC 103 (Delhi).
20. On the other hand, stoutly resisting the contentions raised by the counsel for the appellants in both the appeals, Mr.P.A.Salim learned Public Prosecutor submitted that the arguments advanced by the counsel for 4th accused before this Court is diametrically opposed to the stand taken by 4th accused during the trial. Inviting my attention to paragraph 10 of the judgment of the trial court, the learned Public Crl.A.Nos.2439/2009 & 1165/2010 :-15-:
Prosecutor submitted that the counsel for 4th accused in the trial court has fairly conceded that they are not challenging that part of the case of the prosecution with respect to the identity of the 4th accused. It is the further submission of the learned Public Prosecutor that PW1 is the victim and injured and when he was examined, he had deposed before the court strictly in accordance with the prosecution allegation and he had identified A2 and A4. According to the learned Public Prosecutor, as per the prosecution case, PW1 had been forced to spend about three hours with the company of the assailants and thus, he had occasion to note the features of the assailants, their speech and thus he is familiar with the face of the accused and therefore, the evidence adduced by the prosecution through PW1, regarding the identity of the accused, alone is sufficient for the conviction of the accused. Besides the above, the learned Public Prosecutor also invited my attention to the depositions of Pws.2 and 3, who are the drivers in the taxi stand at Aluva, where PW1 was also plying the vehicle and Pws.2 and 3 have categorically identified the accused in the court and previously after the arrest of A2 and A4, when those accused were shown to them by the Police during the investigation. On the basis of the evidence of PW10, the learned Public Prosecutor further submitted that the evidence of PW10 is intact and PW10 had identified A4 as the person who made endorsement in Ext.P6 register maintained at Charpa Forest Check Post. Learned Public Prosecutor submitted that PW10 has also got opportunity to note the features of A4 since he had spent sufficient time in the forest check post for Crl.A.Nos.2439/2009 & 1165/2010 :-16-:
the purpose of making the endorsement in Ext.P6 and therefore, his evidence regarding the identity of A4 can be safely acted upon, especially when PW10 has also identified the accused in the Police Station when A4 was shown to him during investigation. Thus, according to the learned Public Prosecutor, the contentions raised by both the counsel for the appellants regarding the identity are not sustainable and liable to be rejected.
21. On the strength of the decision of a learned Single Judge of the Allahabad High Court in Durjan v. State of U.P. [1989 (1) Crimes 392], the learned Public Prosecutor submitted that Section 397 I.P.C. provides for enhancement of the term of imprisonment in certain cases in which the offender uses deadly weapons. Thus, according to the learned Public Prosecutor, even if the number of assailants is more than one, Section 397 I.P.C. will be attracted irrespective of the fact whether the other accused were in possession of the deadly weapon or not. According to the learned Public Prosecutor, if the term 'offender' used in Section 397 is taken as only one person, other accused involved in the same crime can easily escape from the clutches of law and therefore, according to the learned Public Prosecutor, the trial court is correct in convicting all the accused under Section 397 read with Section 34 of I.P.C. and there is no illegality in recording the conviction and sentence against the accused under Section 397 read with Section 34 I.P.C. Thus, according to the learned Public Prosecutor, no interference is warranted.
Crl.A.Nos.2439/2009 & 1165/2010 :-17-:
22. I have carefully considered the arguments advanced by the learned counsel for the appellants and also the learned Public Prosecutor. I have perused the judgment of the trial court and scrutinized the evidence and the materials on record .
23. The specific case of the prosecution is that at about 4.30 p.m. on 6.10.2007, the accused four in numbers, in furtherance of their common intention to commit theft of Tata Indigo car bearing Registration No.KL 42/6770 from the possession of PW1, attempted to cause his death and had dishonestly taken away the said car and thereby committed the offence punishable under Section 397 of I.P.C. I have already referred to the prosecution evidence. In the light of the argument advanced by the learned counsel for the appellants and the learned Public Prosecutor, especially in the light of the evidence and materials involved in the case, the points that emerge for consideration are (1) Whether the prosecution has succeeded in establishing its allegation against the accused, (2) whether the learned Sessions Judge is justified in his finding that the appellants/accused Nos.2 and 4 have committed the offence punishable under Section 397 read with Section 34 and if not, what are the offences committed by the accused and (3) what is the punishment.
24. In order to substantiate the allegation against the appellants, the prosecution mainly depends upon its star witness viz.,PW1. When PW1 was examined, he had deposed before the court strictly in accordance with the prosecution allegation. According to PW1, at about 4.30 p.m. on 6.10.2007, the first accused hired the car for Crl.A.Nos.2439/2009 & 1165/2010 :-18-:
a trip to Vazhachal purportedly to meet his friend said to be a Forest Guard and PW1 had agreed for the trip and when he started the car, the other accused also got into the car and thus they left Aluva and proceeded towards Vazhachal. PW1 has further deposed that when the car reached at Choozhimedu bridge at about 8 p.m. and at a place two Kms. away from Puliyilappara Junction, the fourth accused asked him to stop the car under the guise for urination and at that time, the third accused was sitting in the front seat and accused Nos.1 and 2 were sitting in the back seat. Thus, according to PW1, when the car was stopped as requested by A4, A1 who was sitting just behind the driver seat put a tangled knot made up of plastic rope-MO1 in the neck of PW1 so as to kill him by using the rope. PW1 has categorically deposed that seeing the above act of A1, he inserted his left hand inside the knot and thus prevented the first accused from fastening the knot on his neck. PW1 further deposed that pursuant to that, a scuffle was occurred and due to the death of fear, he kicked A3 who was sitting in front seat of the car and as a result of the same, the front left door of the car was opened and third accused fell out. By using that opportunity, according to PW1, he jumped out of the car through the left front door and thereby escaped from the clutches of the accused. PW1 has further deposed regarding his arrival at the next junction and the intimation given to the Police after obtaining phone number of the Police Station etc. PW1 has also deposed that when he left the car, all the accused entered into the same and the accused had driven the car and gone in the direction in which the car Crl.A.Nos.2439/2009 & 1165/2010 :-19-:
stopped. According to PW1, the accused, particularly A1 attempted to murder him for the purpose of taking away the car. According to him, he sustained a loss of `.4,50,000/-.
25. In the Chief Examination of PW1, he had deposed that A1, who was not present in the court at that time and A4, came together and hired his vehicle. According to PW1, he was told by the accused that they had a friend, who was working as Forest Guard at Vazhachal and they wanted to meet him. Thus, PW1 deposed as follows:-
" .
. ,
."
(emphasis supplied)
He further stated as follows:-
" -
. 7
7< .
. (A4) .
. .
. .
2km .
. . .
(A4) . 7=
.
." (emphasis supplied)
He continues as follows:-
" .
. .
.
Crl.A.Nos.2439/2009 & 1165/2010
:-20-:
automatic
. .
. (A2)
.
.
. .
.
. .
,
. ................ ................ .................. .............. ..............
...............................
. .
4 .
. '
(emphasis supplied)
During the Chief Examination, he had further deposed that he had gone to the police station and also gone to the Government Hospital Chalakudy etc. He had also deposed that he was questioned by the police and during investigation, they have seized the vehicle and accused were arrested and as requested by the police he reached the Vettilappara police station and identified the accused and the vehicle. He had also deposed that " , ."He had also stated that he had given statement before the police for identifying the accused.
26. During cross examination for A2, PW1 was asked that "
? .
Crl.A.Nos.2439/2009 & 1165/2010 :-21-:
door "He had also deposed that
opposite side-
. During the cross examination on behalf of A4, he had deposed "
.
. .
.
. . . .
? . ? .' In further
cross examination, he had deposed that he cannot say as to how much time taken for the scuffle inside the car. He stated that all what happened was all of a sudden. He had also deposed that 4- . Thus, on a scrutiny of evidence of PW1, it can be seen that though he was subjected to lengthy cross examination, there was no serious challenge against his deposition regarding the identity of A2 and A4. PW1, during his Chief Examination itself, stated the role of A4 and A1 in hiring the vehicle and also stated that the other two accused were standing in the opposite direction and they too entered into the car when the car was about to leave the stand. From the evidence of PW1, it can be seen that it was A4 who asked him to stop the vehicle under the guise for urination at the place of occurrence, which is an isolated area, so as to facilitate the commission of offence. Crl.A.Nos.2439/2009 & 1165/2010 :-22-:
Otherwise, if the attempt was made, while the car was in motion, the same would likely to result in an accident, which would be endanger to the life of the accused as well and if that be so, they could not have materialised their intention. It is also borne out from the evidence of PW1 that it was A4, who made the endorsement in Ext.P6 register. It is also deposed by PW1 that A2 chased PW1 as commanded by A1. It is also on evidence that A3 was also inside the car along with A1 and A2, when the first accused attempted to cause the death of PW1 and also during the time of scuffle inside the car. So, regarding the entire incident, regarding the identity of the accused, the evidence of PW1 is intact. In order to prove the incident, the prosecution has no other evidence other than the attendant circumstances and the deposition of PW1, who is the victim and the injured. But, against the evidence of PW1, with respect to the incident, there is no serious challenge. Thus, on an evaluation of the evidence of PW1, according to me, his evidence alone is sufficient to prove the incident and the identity of accused 2 and 4.
27. In the light of the contention raised by the counsel for the appellants, with respect to the identity of the accused, let me now considered as to whether the prosecution has succeeded in establishing the identity of the accused with the support of any other evidence. I have already found in the preceding paragraph that the identity of the accused is established by the prosecution through the evidence of the victim himself, PW1. Though he was subjected to lengthy cross examination, nothing Crl.A.Nos.2439/2009 & 1165/2010 :-23-:
is brought out to disbelieve his evidence regarding the identity of the accused. It is to be noted that besides the evidence of PW1, the prosecution has also adduced supportive and corroborative evidence to establish the identity of the accused. Thus, it can be seen that the evidence of PWs.2 and 3 would show that they have identified the accused as the persons who approached PW1 on 6.10.2007 to hire the taxi of PW1. They have also deposed that they have identified the accused from the police station before their giving evidence in the court while they were examined as prosecution witnesses. Thus the evidence of PWs. 2 and 3 fully supported the evidence of PW1 regarding the identity.
28. Besides the above evidence of PWs. 2 and 3, next comes the evidence of PW10, the Forest Guard. PW1 during his examination had deposed that the car reached at the Charpa Forest Check Post between 7 and 7.15 p.m. and it was A4 who made the endorsement in Ext.P6 register. When PW10 was examined, he had deposed that, on 6.10.2007, at about 7.15 p.m., a Tata Indigo Car bearing registration No.KL 42/6770 came to the Charpa Forest Check Post and A4 made requisite entry in the register. Through PW10, Exts.P6 and P6(a) were marked. As pointed out by the learned Public Prosecutor, in paragraph 10 of the judgment, the trial court had recorded that, "when he was examined before court, the 4th accused Sajith was absent and his counsel submitted that he is not challenging the identity of the 4th accused". In the evidence of PW10, he had deposed that the above mentioned car came in the Crl.A.Nos.2439/2009 & 1165/2010 :-24-:
checkpost and it was disclosed that the vehicle was going to Valpara. He further deposed that ' '. The learned Judge of the trial court recorded that "he is absent here. Saji is 4th accused. abst petn. No dispute regarding the identity" PW10 has also deposed that ' 1.11.07-
C.I.Office- '. During cross-examination,
PW10 deposed that '
.' He had further deposed that '
.' From the approach in cross examination, it appears that A4 has no
much grievance regarding the evidence of PW10 with respect to the identity of A4.
29. Besides PW10, the prosecution has also examined PW4, who was the Station House Officer of Malakkapara Police Station. I have already stated the evidence of PW4 in paragraph 9 of this judgment. He had deposed that when himself and party were waiting near to the Malakkapara Police Station, in pursuance of the information received by him from one of the local inhabitants of Ropmattam, they happened to see the stolen car coming towards them and according to PW4, on seeing the police party, the culprits inside the car after stopping the same, ran towards the tea estate and himself and the general public chased the accused and caught hold the accused by the evening of 7.10.2007. According to PW4, Jomon(A2) and Shyju Crl.A.Nos.2439/2009 & 1165/2010 :-25-:
(A3) were caught from the tea estate. According to PW4, they could not chase A1 and A4 as they escaped from the site but the car was taken into custody and brought to the police station. During the examination of PW4, he had identified the appellants/accused in the court. He had deposed that as directed by the CI of Police, Chalakudy, himself and the local inhabitants who chased Sajith, reached the Chalakudy Police Station and identified him from the police station. During the cross examination for A2, PW4 has stated that " .
7/10/07- ,
?.
. PW4 denied the suggestion made on behalf of A2, that he has not arrested A2. There is no cross examination from the side of A4, regarding the evidence given by PW4 with respect to the identity of A4. From the above evidence of PWs 2, 3, 4 and 10, it can be seen that they have identified A2 and A4 and their evidence fully corroborates the evidence of PW1 with respect to the identity of the accused.
30. In this juncture, it is pertinent to note that, having regard to the facts and circumstances involved in the case, in order to accept the evidence of PW1, regarding the incident and identity of the accused, no corroboration is necessary, because the first part of the incident, i.e. the hiring of the vehicle and their journey till the forest checkpost at Charpa has taken place during the day light. It has also come out in Crl.A.Nos.2439/2009 & 1165/2010 :-26-:
evidence that during the way, they have stopped the vehicle for taking tea and therefore, about 3 hours were taken to reach the place of occurrence, whereas the normal time required is only 2 to 2.30 hours. Therefore, PW1 has got sufficient opportunity and time to get acquaintance with the accused, particularly with respect to their features, face and speech. According to PW1, when the car was stopped at the instance of A4, the door was opened and there was doorlight and therefore,he could identify A1 as the person who put the plastic rope on his neck and also his evidence regarding A2 the person, who chased him and the presence of A3 inside the car, also remained intact. PWs 2 and 3 also found the accused in the bus stand on 6.10.2007. Their evidence is also intact and nothing brought on record to disbelieve them. PW10 is another witness who had seen A4 when A4 made the endorsement in Ext.P6 on the date of the incident. So, PW10 is not a stranger or a chance witness or an interested witness. As per the evidence on record, A4 reached the checkpost of which PW10 was in charge and A4 spend time to make the endorsement in Ext.P6 register and therefore, he could easily identify A4 in the court as the person who made the endorsement in Ext.P6 on 6.10.2007 and such endorsement was made when A4 arrived at the checkpost in the car in question. During the course of investigation, PW10 was also summoned to the police station and he identified the accused. That being the position, the evidence of PWs 1 to 3, 4 and 10, connected with the identity of the accused, during the course of investigation, other than by way of test identification Crl.A.Nos.2439/2009 & 1165/2010 :-27-:
parade, can be easily accepted and acted upon which would further render the correctness and genuineness of the identity made by those witnesses during the course of trial. In the present case, the identity of the accused is properly established by the prosecution in the court and the evidence of PW1, the victim, is fully supported by the evidence of independent witnesses as well as the official witnesses. Therefore, the decisions relied on by the learned counsel for the 4th accused regarding the test identification parade, i.e. Suresh Chandra Bahri v. State of Bihar (AIR 1994 SC 2420) and Brij Mohan v. State of Rajasthan (AIR 1994 SC 739), have no relevance in the present case. In the light of the above discussions and findings, according to me, the prosecution has fully succeeded in establishing the identity of the accused as well as the incident by which the accused attempted to cause the death of PW1, and committed the offence of robbery with respect to the vehicle, viz. Tata Indigo Car, bearing registration No.KL 42/6770, on 6.10.2007. Thus, the first point is answered in favour of the prosecution.
31. In the light of my finding on point No.1, the next question to be considered is whether the learned Sessions Judge is justified in his finding that the appellants/accused Nos.2 and 4 have committed the offence punishable under Section 397 read with Section 34, and if not, what are the offences committed by the accused. As I mentioned earlier, Mr.P.B.Ajoy, learned counsel for the 4th accused vehemently submitted that the offence under Section 397 is not at all Crl.A.Nos.2439/2009 & 1165/2010 :-28-:
attracted against A4 and the said contention on behalf of A4 is also shared by Smt.V.Sreeja, learned counsel appearing for A2. According to the learned counsel, Section 397 of IPC can be pressed into service in the present case only against A1, if the allegation against A1 is proved, since according to the learned counsel, as per the prosecution allegation, it is A1 who tried to cause the death of PW1 by using MO1. But, the learned Public Prosecutor Mr.P.A.Salim resisting the above contention submitted that the term 'offender' used in Section 397 of IPC does not mean or refer to only a single person or accused. According to the learned Public Prosecutor, if more than one accused is involved in the commission of the offence of robbery and in case more than one accused use any deadly weapon, both the persons can be held liable under Section 397 of IPC, otherwise, all other accused have to be acquitted. On a careful consideration of the arguments advanced by both the counsel for the appellants and the learned Public Prosecutor, according to me, those contentions require an elaborate consideration with reference to various provisions contained in I.P.C. and the authorities governing the field.
32. The facts proved by the prosecution in support of their case is that the accused four in number, with the intention to commit the theft of the vehicle of PW1, approached PW1 under the pretext of hiring his vehicle and taken to the place of occurrence and towards the theft of the said vehicle and during the commission of the offence of theft, the first accused has attempted to cause death of PW1 and in that Crl.A.Nos.2439/2009 & 1165/2010 :-29-:
attempt, PW1 has also sustained injury and accused Nos.2,3 and 4, by their presence and the overt act, facilitated the commission of the above offence. Chapter XVII of IPC deals with offences against property. Section 378 defines 'theft'. Section 379 prescribes 'punishment for theft'. Section 390 defines 'robbery', according to which, in all robbery, there is either theft or extortion. Section 390 reads as follows:-
"390. Robbery.--In all robbery there is either theft or extortion.
When theft is robbery.-- Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.-- Extortion is "robbery" if the offender, at the time of committing the extortion is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
Explanation.-- The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint."
In the present case, the allegation is that of theft and not extortion. Section 392 prescribes the punishment for the offence of robbery. In the decision in State of Maharashtra v. Joseph Mingel Koli, (1997 (2) Crimes 228 (Bom), it was held as follows:-
"An analysis of section 390 I.P.C. would show that in order that theft may constitute robbery, prosecution has to establish:
(a) if in order to the committing of theft;or
(b) in committing the theft; or
(c) in carrying away or attempting to carry away property obtained by theft;
(d) the offender for that end i.e. any of the ends contemplated by (a) to (c) Crl.A.Nos.2439/2009 & 1165/2010 :-30-:
(e) voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint.
In other words, theft would only be robbery if for any of the ends mentioned in (a) to (c) the offender voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint.
If the ends does not fall within (a) to (c) but, the offender still causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint, the offence would not be robbery.
We wish to emphasise that (a) or (b) or (c) have to be read conjunctively with (d) and (e). It is only when (a) or (b) or (c) co-exist with (d) and (e) or there is a nexus between any of them and (d) and (e) would theft amount to robbery."
33. At this juncture, according to me, in order to appreciate the contentions raised by the counsel for the appellant as well as the learned Public Prosecutor, it is only just and proper to refer the police charge and the charge framed by the court below against the accused. In the report filed by the Police in Crime No.163 of 2007 of Vettilappara Police Station, the offence incorporated is under Section 397 of I.P.C. The police charge begins with the following allegations that 1 4 1- KL 42/6770-
TATA INDIGO 1- .................................. " After stating the overtact played by each of the accused, it is finally concluded that 1- 3- 4- Crl.A.Nos.2439/2009 & 1165/2010 :-31-:
4= TATA Indigo 1-
". In this
case, it is relevant to note that originally the crime was registered for the offence under Section 394 of I.P.C. Based upon the materials furnished by the Police, after investigation and after hearing the accused as well as the prosecution, the court below has framed a formal charge for the offence under Section 397 of I.P.C., which reads " 2 .........." Thereafter, in the charge, the court has also in detail mentioned the overt act played by each of the accused and the entire facts and circumstances relied on by the prosecution and thus, the charge concluded 1- 3- 4- IPC 397 ."
34. In the present case, the finding of the trial court is that the accused has committed the offence punishable under Section 397 read with Section 34 of I.P.C. Section 397 reads as follows:-
"397. Robbery, or dacoity, with attempt to cause death or grievous hurt.-- If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years."
Crl.A.Nos.2439/2009 & 1165/2010 :-32-:
On a close reading of the above Section, one can understand that if the offence proved is either robbery or dacoity. with attempt to cause death or grievous hurt, and in case the offender uses any deadly weapon or caused grievous hurt to any person or attempted to cause death or grievous hurt to any person, such offender shall be punished for not less than imprisonment of seven years.
35. The contentions raised by counsel for the appellant and the learned Public Prosecutor have to be examined in the light of the above definitions of various offences. According to the learned counsel for the appellants, since the word 'offender' used in Section 390 'when theft is robbery' and the same word employed in Section 397, in the absence of any specific allegation or proved fact to that direction, that A2 or A4 has used any deadly weapon or the other overt act as mentioned in Section 397 or 390, the appellants cannot be convicted either under Section 392 or Section 397 of I.P.C. It is also the submission of Sri.P.B.Ajoy that as the prosecution has no allegation against either A2 or A4 that they have voluntarily caused hurt in committing the offence of robbery, Section 394 of I.P.C. is also not attracted against them. Thus, according to the learned counsel, at the most, what is attracted is only the offence of 'theft' punishable under Section 379 of I.P.C. In support of the above contentions, learned counsel invited my attention to the decision of the Delhi High Court in Shikandar's case (cited supra). Besides the above decision, he has also relied on the decision of the Apex Court in Shri Phool Kumar's case and Ashfaq's case (cited supra). Crl.A.Nos.2439/2009 & 1165/2010 :-33-:
Learned counsel submitted that Section 397 will be attracted against the offender and user of deadly weapon whereas Mr.P.A.Salim, learned Public Prosecutor, on the strength of the decision of the Allahabad High Court reported in Durjan 's case (cited supra), submitted that Section 397 provides for an enhancement of the term of imprisonment where the offender used a deadly weapon. Thus, according to the learned Public Prosecutor, if the accused involved is more than one person and in case he uses the deadly weapon, Section 397 is attracted.
36. In the decision in Ashfaq's case (cited supra), the Honourable Apex Court has held in paragraph 9 as follows:-
".............. The provisions of Section 397, do not create any new substantive offence as such but merely serve as being complementary to Sections 392 and 395 by regulating the punishment already provided for dacoity by fixing a minimum term of imprisonment when the dacoity committed was found attendant upon certain aggravating circumstances viz. use of a deadly weapon or causing of grievous hurt or attempting to cause death or grievous hurt.................." (emphasis supplied) In the said decision, the Apex Court has further held as follows:-
"..............For that reason, no doubt the provision postulates only the individual act of the accused to be relevant to attract Section 397 IPC and thereby inevitably negates the use of the principle of constructive or vicarious liability engrafted in Section 34 IPC......" (emphasis supplied) In the foregone paragraph, after evaluation and appreciation of the evidence on record, I have already found that the prosecution has succeeded in establishing its allegation of theft of the car in question and while committing that offence, the accused attempted to cause the death of PW1 and during that incident, PW1 sustained injury also. Thus, Crl.A.Nos.2439/2009 & 1165/2010 :-34-:
according to me, the prosecution has fully succeeded in proving the ingredients of Section 390 I.P.C. 'when theft is robbery'.
37. In the light of the above referred decision of the Supreme Court, Section 397 does not create any new substantive offence and it is complementary to Section 392 or 395. Here, since the number of accused involved is only 4, Section 395 is not attracted. In the light of the above Supreme Court decision and on a close reading of Section 397, it can be seen that the particular intention of the legislature is to ensure a minimum term of imprisonment as punishment against the person involved in the offence of robbery as well as dacoity and particularly, against such offender, who used any deadly weapon or causes grievous hurt to any person and attempted to cause death or grievous hurt to any person, considering his overt act and gravity of such criminal overt act, though such deterrent punishment is not desirable to impose against other accused who are not coming within the category mentioned in this section. That does not mean that if other accused persons are also involved, during the commission of the offence of robbery or dacoity or in committing the said offences, no punishment fixed by Section 392 or 395 is attracted against them, or else, only an offender or the person uses any deadly weapon alone can be convicted and sentenced. Therefore, the logical conclusion that can be arrived is that in a case in which the accused are involved in the offence either under Section 390 or 391, those accused, who have not used deadly weapon and committed no overt act, can be sentenced in accordance with Crl.A.Nos.2439/2009 & 1165/2010 :-35-:
Section 392 or 395 of I.P.C. as the case may be. In the decision in Shri Phool Kumar's case (cited supra), the Apex Court has held that the term 'offender' in that section is confined to the offender who uses any deadly weapon and the other accused cannot be held liable under Section 397 of I.P.C. According to me, the accused, who by presence and by his overt act assisted the offender, cannot be allowed to escape from the penal liability and therefore, Section 34 of I.P.C. is certainly attracted and the same can be pressed into service for the ends of justice. In Ashfaq's case (cited supra), the Honourable Apex Court has held that under Section 397, the provision mainly concerns with the individual act of the accused and thereby, negates the use of the principle of constructive or vicarious liability. It is also relevant to note that the Apex Court has held so, after its finding that the provisions of Section 397 will not create any new substantive offence, but complementary to Sections 392 or 395. In that case, the factual position also indicates that there was no need to invoke Section 34 of I.P.C. because all accused in that case were also wielding deadly weapon of their own and thereby squarely fulfilled the ingredients of Section 397 of I.P.C., dehors any reference to Section 34 of I.P.C. In the light of the above decision, particularly in view of the scope of Section 397 and the factual finding therein, the only conclusion that can be arrived is that there is no legal impediment in convicting and sentencing the appellant/accused for the offence under Section 392 of I.P.C. instead of Section 397 of I.P.C. read with Section 34 of I.P.C., even though they do not use deadly weapon or Crl.A.Nos.2439/2009 & 1165/2010 :-36-:
commit any overt act as contemplated and enumerated in Section 397 of I.P.C. , the ingredients of Sections 392 and 34 of I.P.C. are attracted against them.
38. In the light of the finding in the preceding paragraph, the next question to be considered is whether any prejudice will be caused to the appellants/accused in convicting and sentencing them for the offence under Section 392 read with Section 34 of I.P.C., in the absence of a formal charge to that effect. Though during the trial, no specific charge was framed for the offence under Section 392 read with Section 34 of I.P.C., the substance of the allegation under Section 392 and Section 34 has already been brought to the notice of the accused which is evident from the Police charge. I have already referred to the police charge and court charge in para 33 of this judgment from where it can be seen the role attributed against the appellants/accused and the substance of allegation under Section 390 of I.P.C. As per the court charge which I referred supra, the appellants/accused were beware of the prosecution allegation and the charge framed against them by the trial court and thus, the appellants/accused were put to face the trial for the offence covered by Section 392 and 34 of I.P.C. Thus, no prejudice will be caused against the appellants in convicting them under Section 392 of I.P.C., in the light of the above punishment clause. In the light of the dictum laid down by the Apex Court in Ashfaq's case and in view of Section 397 of I.P.C., it can be seen that the said section does not create any new substantive offence, but prescribes a minimum sentence of seven years against the offender and the same is Crl.A.Nos.2439/2009 & 1165/2010 :-37-:
compulsory, but the maximum sentence against such offenders and other accused is only ten years imprisonment and fine as provided under Section 392 or 395 as the case may be. In effect and in substance, the charge either under Section 392 or 397 would be the same, as far as the appellants are concerned , but Section 397 of I.P.C. is not attracted against the appellants herein, as there is no allegation and proof in terms of Section 397 of I.P.C. against them, but Section 392 read with Section 34 of I.P.C. are attracted against the appellants/accused.
39. In the present case, the offence proved against the accused is under Section 390 robbery which is punishable under Section 392 of I.P.C. particularly, the prosecution allegation is that the accused attempted to cause death of PW1 while committing the robbery. Therefore, the contention of counsel for the appellant based upon the decisions in Shikandar v. the State [1984 CRI.L.J.NOC 103 (DELHI)], Aslam alias Deewan v. State of Rajasthan [(2008)9 SCC 227] that Section 394 of I.P.C. is not attracted, has no relevance and accordingly, the same is rejected.
40. In the light of the foregone discussion, it can be seen that the proved case is that the offence of theft is committed, not under extortion, but by an attempt to cause death of PW1 and in that occasion, PW1 has also sustained injury. Section 391 dacoity is not attracted in this case because the number of assailants/accused are below five. According to me, from the facts and circumstances proved in this case, the offence of robbery as defined under Section 390 of I.P.C. is attracted against the Crl.A.Nos.2439/2009 & 1165/2010 :-38-:
accused. It is proved that the accused, who are residing in different places and addresses, came to Aluva Bus stand on 6.10.2007 and A1 and A4 contacted PW1 and hired the taxi and when the car started, A2 and A3 got entered into the vehicle which thereafter proceeded to Vazhachal as per the direction of the accused and when the incident, as spoken to by PW1, has taken place, all the accused were inside the car and it was A4, who made endorsement in Ext.P6 register and it was, at the instance of A4, the car was stopped at the place of occurrence for facilitating the commission of the offence and after the incident and when PW1 escaped from the clutches of the accused, all the accused entered into the car and the car was removed from the possession of PW1. So, according to me, Section 390 is attracted since the above proved act of the accused would show that they have done all these acts in order to commit the theft of the vehicle. The proved presence of the accused and also the proved overt act against A2 and A4, from the stage of hiring the vehicle till the removal of the same would further prove that all these acts were done in order to commit the offence and in committing the theft of the vehicle. The evidence of PW1 would show that A1 put MO1 over his neck voluntarily and attempted to cause the death of PW1 and in that incident, PW1 had sustained injury. The above allegation and the overt act played by the accused unerringly point towards the pre-meditated act of the accused and the sharing of common intention of committing the offence of robbery. It is true, in the present case, it was A1, who put MO1 on the neck of PW1 Crl.A.Nos.2439/2009 & 1165/2010 :-39-:
and attempted to cause the death of PW1. Smt.Sreeja took a contention to the effect that MO1 plastic rope is not a deadly weapon and hence neither Section 392 nor Section 397 is attracted. But according to me, such contention has no relevance in the present case for two reasons. In order to attract Section 397 or 390, the overt act contemplated therein need not by the actual use of the deadly weapon. The overt act contemplated in the above section can be materialised even without using any deadly weapon or by showing the same. In view of the decisions in Ashfaq's case and Shri Phool Kumar's case (cited supra), the actual use of the deadly weapon is not necessary to attract Section 397. Suppose the attempt to cause the death is by pressing the neck of PW1 by using the hands of the accused, that act will also come under the purview of Section 390 or 397. Hence, even if no weapon is used, the overt act enumerated therein is proved, those sections will be attracted. Besides the above, whether a material or weapon used is a deadly weapon or not, depends upon its use and its potential to cause any injury. Therefore, the above contention of the learned counsel cannot be accepted. A1 made such attempt in the presence of other accused and under the guise to meet the friend of the first accused, PW1 was misled with his vehicle to the place of occurrence for which the other accused made all the assistance by their presence and by their proved overt act which I mentioned above. So the accused Nos. 2 and 4 cannot escape from their penal liability on the basis of the contentions advanced by the learned counsel for the appellants on the basis of the word Crl.A.Nos.2439/2009 & 1165/2010 :-40-:
'offender' used in Section 390 as well as Section 397 of I.P.C. On the other hand, as I stated earlier, the proved presence and the overt act of the appellant/accused are sufficient to hold that the same were pre-meditated and sharing of common intention by the appellants to commit the offence under Section 390 of I.P.C. On examination of the facts and circumstances involved in the case, in the light of the dictum laid down by the Honourable Apex Court in the decisions reported in Ramashish Yadav v. State of Bihar [1999(8) SCC 555] and Lallan Bhai v. State of Bihar (AIR 2000 SC 333), the very presence of the appellants and the overt act proved against them and the factual background of the case which I indicated earlier would show that the above modus operandi in committing the offence was as a result of a pre-arranged plan and prior concert and hence, the vicarious liability under Section 34 of I.P.C. is attracted against the appellants. Therefore, the appellants are liable to be convicted under Section 392 with the aid of Section 34 of I.P.C.
41. Of course, while considering the case and sentence against A1, if the allegation against him is proved, Section 397 may have relevance. But, in the present case, as far as the accused Nos.2 and 4 who are the appellants herein are concerned, the offence of robbery against them are proved by their presence and the overt act played by them and the sharing of common intention of committing theft or robbery and therefore, the liability against accused Nos.2 and 4 by virtue of Section 34 of I.P.C. is attracted and therefore , the appellants/accused Nos.2 and 4 are liable to be Crl.A.Nos.2439/2009 & 1165/2010 :-41-:
convicted under Section 392 of I.P.C. read with Section 34 of I.P.C. Thus, according to me, the finding of the learned Sessions Judge that the appellants 2 and 4/accused are guilty under Section 397 of I.P.C. is not correct and whereas the offence proved against accused Nos.2 and 4 is under Section 390 of I.P.C. and accordingly, the punishment clause attracted against them is under Section 392 of I.P.C. read with Section 34 of I.P.C. and point No.2 is found accordingly.
42. In the light of the above findings, the next question to be considered is the punishment and the quantum of sentence. In the present case, PW1 engaged in the job as taxi driver to pull on his family with whom the appellants have no prior acquaintance, but because of their lust for making money, made him the prey for their wicked plan and attempted to cause his death for committing the theft of the vehicle driven by him. The modus operandi adopted by the accused in the commission of the present offence and now-a-days such offences are not uncommon in our society.
Therefore, according to me, they deserve deterrent punishment. As per Section 392 of I.P.C., the maximum sentence that can be imposed against the offender is only ten years Rigorous Imprisonment and also liable to be sentenced for fine. Having regard to the facts and circumstances involved in the case, I am of the view that the sentence of seven years Rigorous Imprisonment and sentence of reasonable amount of fine are sufficient to meet the ends of justice.
43. In the result, the conviction and sentence imposed against the appellants by Crl.A.Nos.2439/2009 & 1165/2010 :-42-:
the trial court under Section 397 read with Section 34 I.P.C. is set aside and the appellants/accused are sentenced to undergo Rigorous Imprisonment for a period of seven years and each of them is further sentenced to pay a fine of `.25,000/- each and in default, each of them is directed to undergo simple imprisonment for a further period of one year under Section 392 of I.P.C. If the fine amount is realised, the entire amount shall be paid to PW1 under Section 357(1)(b) of Cr.P.C.
Accordingly, the Criminal Appeals are dismissed, convicting the appellants/accused under Section 392 read with Section 34 I.P.C. instead of Section 397 read with Section 34 of I.P.C. and they are sentenced to undergo Rigorous Imprisonment for a period of seven years and each of them is further sentenced to pay fine of `.25,000/- each and in default, each of them is directed to undergo simple imprisonment for a further period of one year. On realisation of the fine amount, the entire amount shall be paid to PW1 under Section 357(1)(b) of the Cr.P.C. Since the appeals are dismissed, the bail bond executed by A4/the appellant in Crl.A.No.2439 of 2009 is cancelled and he is directed to surrender in the trial court within three months from today to serve the sentence, failing which the trial court is free to take coercive steps for securing his presence and to execute the sentence and for realisation of the fine amount.
V.K.MOHANAN,JUDGE pm/kvm/mbs/ Crl.A.Nos.2439/2009 & 1165/2010 :-43-: