A2 & A3 v. The Sub Inspector of Police Thalassery Police Station & State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN MONDAY, THE 23RD DAY OF JANUARY 2012/3RD MAGHA 1933 CRL.A.No. 2008 of 2010 ( ) -------------------------SC.395/2009 of ADDL.SESSIONS COURT (ADHOC)-II, THALASSERY APPELLANT: A2 & A3 ------------ 1. MAHESH ,S/O. RAJAN, AGED 22 YEARS OTTUPALAYOOR, SELAM, TAMIL NADU NOW RESIDING, NEAR PUZHAKKARA PURAMBOKDE MANNATHAVADI. 2. SENTHIL @ NAGARAJ, S/O.GUNDUMANI RESIDING IN A RENTED QUARTERS, PUTHUSSERI PALAM MANANTHAVADI. BY ADV. SRI.CIBI THOMAS RESPONDENTS: -------------- 1. THE SUB INSPECTOR OF POLICE THALASSERY POLICE STATION 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. LALIZA T.Y. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-01-2012, ALONG WITH CRA 2055/10 &CRA. 2205/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** **---------------------------------------Crl.A.No. 2008/10, 2055/10 & 2205 of 2010 ----------------------------------------** Dated the 23rd day of January, 2011 ## **JUDGMENT** As the judgment impugned in these appeals is one and the same, at the instance of different accused and the question of facts and law involved are identical, these appeals are heard together and are being disposed of by this common judgment. 2. Crime No.688 of 2008 of Thalassery police station was registered for the offence punishable under section 402 of the Indian Penal code against the accused, who are 7 in numbers, in which the allegation is that the accused were seen assembled at about 23.50 hours on 2.10.2008, under the Railway over bridge at T.C.Mukku in Thiruvangad amsom for the purpose of committing dacoity of passengers alighting from the train and the accused were having dangerous weapons with them when they were found at the place of occurrence. After investigation, report was received in the Judicial First Class Magistrate court Thalassery from where the case was committed to the Sessions Court, Thalassery by its proceedings in C.P.No.18/2009, based Crl.A.2008/10 2 upon which S.C.No.395/2009 was instituted in the Sessions Court from where subsequently, the same was made over to the present trial Court for disposal. A formal charge was framed for the offence punishable under section 402 of IPC against the accused and when the charge read over and explained to the accused, they denied the same and pleaded not guilty. Consequently, the prosecution examined PWs 1 to 6 and marked Exts. P1 to P7 and also produced and marked MO1 to MO7 material objects. Finally the trial Court has held that all the accused were assembled under the railway over bridge at T.C.Mukku for committing dacoity and accordingly, found them guilty under section 402 IPC and convicted thereunder. On such conviction, the accused Nos.1 to 7 are sentenced to undergo rigorous imprisonment for 3 years under section 402 IPC and to pay a fine of Rs.5000/- each and in default they are directed to undergo simple imprisonment for a further period of 6 months. Set off is allowed under section 428 of Cr.P.C 3. It is the above findings and order of conviction and sentence are challenged by the accused by filing the above three separate appeals. Thus Crl.A.No.2008/10 is filed by A2 and Crl.A.2008/10 3 A3 through advocate Sri Cibi Thomas and Crl.A.No.2055/10 is filed by A4 & A5 through Advocate Smt.Jayalatha M. Whereas Crl.A.2205/10 is preferred by A6 from the jail as he is undergoing imprisonment in pursuance of the impugned judgment. Thus on receiving the appeal from the jail, as ordered by this court, the registry has appointed Smt. Reena P.R., a counsel from the panel of State Brief to defend the above appeal. Thus I have heard Sri Cibi Thomas , the counsel appearing for A2 and A3 in Crl.A.No.2008/10, Smt.Retnakaran, the counsel appearing for the appellants in Crl.A.No.2055/2010 who are accused Nos. 4 and 5, and Smt. Leena P.R appearing for A6 - the appellant in Crl.A.2205/10 and Smt. Laliza, the learned Public Prosecutor for the State. 4. According to the prosecution, PW5, the then Circle Inspector of police, Thalassery police station and PW1, the then Additional Sub Inspector of Police, Thalassery Police Station and party, went for night patrol duty and when they reached at the new bus stand, Thalassery, at about 11.45 p.m on 2.10.2008, an autorickshaw driver informed PW5 that he had seen 6 - 7 persons assembled under the railway over bridge at Thalassery Crl.A.2008/10 4 T.C.Mukku and they were in possession of dangerous weapons. Thus according to the prosecution, PW5 and police party went to the said place and accordingly, thus they reached at T.C.Mukku at about 11.50 p.m and they found the accused 7 in numbers assembled under the railway over bridge. According to the prosecution, on seeing the police party, the accused tried to run away, but the police party chased them and restrained the accused and they were caught by the police persons and brought towards the jeep. According to PW5, when he questioned them about their presence at that off-time, they were not able to give any satisfactory explanation for their presence. Thus, according to PW5, he conducted body search of all the accused and on such search, MO1 knife was recovered from the waist of A1, MO2 sword recovered from inside the shirt of A2, MO3 cable wire was seized from A3, MO4 knife was found inside a plastic cover that was in the possession of A4. MO5 packets of chilly powder were taken from the pockets of A5 and A7 and MO6 plastic bag was in the hands of A6 and MO7 iron bar, from that plastic bag was recovered. As the accused failed to offer any satisfactory explanation for their presence there Crl.A.2008/10 5 and for the possession of MOs 1 to 7, according to PW5, he understood that they were assembled there to commit dacoity and accordingly, PW5 arrested all the accused and the accused and material objects were taken to the Thalassery police station and registered crime No.688 of 2008 as per Ext.P6 FIR. PW5 conducted investigation and he visited the place of occurrence and prepared Ext.P4 scene mahazar and he questioned the witness and recorded their statements. He had also prepared Ext.P7 property list and produced the material objects before the court. The further investigation was undertaken by PW6 who finally laid the charge. It is the above evidence and materials relied on by the court below in support of its finding and convicting the appellants/accused. 5. The learned counsel appearing for the appellants are unanimous in their submission and submitted that the prosecution has miserably failed to prove its case beyond reasonable doubt. To substantiate the above submission, the arguments advanced by the learned counsels for the appellants are also same. In order to challenge the veracity of the prosecution case, all the counsels have pointed out that, Crl.A.2008/10 6 according to PW5, he got the information furnished by the autorickshaw driver. But according to the counsels, the said auto driver is not examined and therefore, the claim of the PW5 for reaching at the place of occurrence cannot be believed, particularly, when there is no independent witness to corroborate such claim of PW5. It is also the contention of the learned counsels for the appellants that the prosecution has failed to prove the identity of the accused since, according to them, the alleged incident has taken place at 11.50 p.m and at that time there was no sufficient light for the witnesses to identify the accused. Sticking on the contentions advanced by the accused in the trial court, the counsels for the appellants submitted that the recovery shown in this case and the evidence thereto are manipulated by the prosecution and Mos 1 to 7 were taken by the police from a neighboring scrap store. Thus, the counsels for the appellants submitted that the prosecution has miserably failed to prove the allegation against the accused and particularly, the arrest of the accused and their identity. Thus according to the learned counsel, the trial court is incorrect in its finding and convicting the appellants. Crl.A.2008/10 7 6. On the other had, the learned Public Prosecutor submitted that the evidence of PWs 1 to 6 are in tact and it was PW5, who was then working as C.I of police, detected the crime and his evidence is supported by independent evidence. It is also submitted by the learned Public Prosecutor that the accused in this case is also involved in several other cases. Thus, according to the learned Public Prosecutor, no interference is warranted. 7. I have carefully considered the arguments advanced by the learned Counsels for the appellants and the learned Public Prosecutor and I have perused the evidence and materials on record. In the light of the rival pleadings and the evidence on record, the question to be considered is whether the trial court is justified in its findings and convicting the appellants for the offence under section 402 of IPC. The first contention raised by the counsel for the appellants is that the claim of PW5 regarding the detection and arrest of the accused cannot be believed since the autorickshaw driver, from whom PW5 allegedly got information, is not examined. According to me, the above contention is not sustainable. In the present case, as Crl.A.2008/10 8 per the prosecution allegation, the accused were caught redhanded who were found in possession of the material objects , the deadly weapons, and that too at about 11.50 p.m and when they failed to offer any proper account for their presence at the off-time, particularly when they were found in possession of the Material objects. PW5 is the detecting officer who is none other than the C.I of police attached to Thalassery police station at that time. The Police is not bound to disclose the source of information and they have every right to keep the same in secret. In the present case PW5 has deposed that the information was received by him from an auto driver. Though PW5 was subjected to lengthy cross examination, his evidence could not be shaken. In the present case it is relevant to note that the evidence of PW5 is further corroborated by the evidence of PW2 , an attestor to Ex.P2 seizure mahazar who is an independent witness also. When PW2 was examined, he had deposed in terms of the prosecution and he had admitted his signature in Ext.P2 as a witness to the seizure. PW2 has also identified Mos 1 to 7. So, the evidence of PW5 is fully corroborated by the evidence of PW2 regarding the seizure of Crl.A.2008/10 9 material objects from the possession of the accused at the relevant time and date. Another contention advanced by the counsels for the appellants is that the identity of the accused are not proved as the crime was detected and the accused were arrested during the night. The above contention is not sustainable in the light of the facts and circumstances involved in the case and especially in the light of the evidence of the prosecution. According to the prosecution, the accused though tried to run away from the spot, they were chased and intercepted and arrested by the police officials from the spot itself, who were immediately produced before the court as per Ext.P6 FIR. The accused were identified in the box by the witness in the court, particularly by PW5. the trial court on the basis of the evidence of PW5, has found that the head light of the police jeep was in good condition and according to PW5, there was search lights fitted to the four sides of the jeep, and therefore, according to me, the finding of the court below that there was sufficient light for identifying the accused, cannot be found incorrect or without any basis. In this juncture, it is relevant to note that there is no serious challenge against the Crl.A.2008/10 10 seizure of the material objects from the place of occurrence and the accused were caught red-handed and produced before the court. Though a contention is advanced to the effect that Mos 1 to 7 were taken by the police from the nearby shop and the evidence is made artificially, no material is brought on record to substantiate such contention. After consideration of the entire evidence, particularly on the basis of the evidence of PW4, the trial court has found that PW4 used to keep things in a sack outside his shop. PW5 has also stated that only waste plastic things were kept outside the scrap store of PW4 and that was specifically mentioned in Ext.P4 which is the scene mahassar. On the basis of the above materials, the trial court refused to accept the contention of the defence that Mos 1 to 7 were obtained by the police from the shop of PW4 to introduce false evidence against the appellants. From paragraph 20 of the judgment of the trial court, it can be seen that the appellant/accused in the present case had already been convicted and pleaded guilty in many cases in Thalassery district itself, as submitted by the learned Public Prosecutor and the said submission is not denied by the defence. It is also stated Crl.A.2008/10 11 that the same court recognized three of the accused that A4 to A6 in the present case, were convicted under sections 457 and 392 IPC as per the judgment in S.C.No.392/09. So, on the basis of the decision in **Kali Charan & Ors v. The State (Delhi Administration** (1985 Crl.L.J. NOC 57 (Delhi), the trial court has found that the prosecution has succeeded in proving that the accused had deliberately committed dacoity. 8. In the light of the above facts and circumstances, and the evidence and materials referred to, I am of the view that the trial court is fully justified in its finding and convicting the appellants for the offence under section 402 IPC. Accordingly, the said conviction is confirmed. 9. The learned counsel appearing for the appellants submitted that adopting a lenient view by invoking Section 420 (7) Cr.P.C, the sentence in the present case may be directed to run concurrently with the sentence which the appellants are undergoing connected with previous conviction and sentence. Having regard to the facts and circumstances involved in the case, and especially in the light of the seriousness of the allegation and considering the fact that the accused were Crl.A.2008/10 12 involved in similar cases, it is not proper to make any modification with respect to the sentence and order to suffer the imprisonment concurrently with the previous sentence. Therefore, the above request is rejected. In the result, this appeals are dismissed confirming the conviction and sentence imposed against them as per the impugned judgment. **V.K.MOHANAN, JUDGE** **kvm/-** ## Crl.A.2008/10 13