Abu S/o Kunhayamu v. State of Kerala

CRL.A.No.441 OF 2005(C) 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 18TH DAY OF DECEMBER 2020 / 27TH AGRAHAYANA, 1942** **CRL.A.No.441 OF 2005(C)** **AGAINST THE JUDGMENT IN SC 265/2000 DATED 26-02-2005 OF ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT NO.III, MANJERI** **AGAINST THE JUDGMENT IN CP 35/1999 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I,MANJERI** ## **APPELLANT/1ST ACCUSED:** **ABU, S/O.KUNHAYAMU, MUTHUVALAN HOUSE, ODUVANKUNNU, PALLYPPADY, KARAKKUNNU.** **SRI.NABIL KHADER- AMICUS CURIAE, BY ADV. SRI.K.P.MUJEEB** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-122020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.No.441 OF 2005(C) 2 ## **JUDGMENT** ## **Dated this the 18th day of December 2020** The appellant is the first accused in S.C.No.265/2000 on the file of the Additional Sessions Judge, Fast Track Court No.III (Ad hoc), Manjeri. The above case is chargesheeted by the Circle Inspector of Police, Manjeri against the appellant and 12 others alleging the offence punishable under Sections 120(B) and 395 IPC. 2. The prosecution case in short is that on 21.8.1997 at about 11.30 am, at Thrikkalangode the accused with the intention to commit dacoity committed criminal conspiracy from the house of the 1[st] accused bearing No.T.P.II/90 and chased an autorickshaw driven by CW1 bearing No.KL10F-979 in a jeep bearing No.KLW 1621 and in an autorickshaw bearing No.KL10C.7826. The further case of the prosecution is that the autorickshaw driven by CW1 was blocked and CW1 and CW2 were taken away from the vehicle and the 1[st] accused took the autorickshaw in which an amount of Rs.3 lakhs is kept. Hence it is alleged that the accused committed the offence. 3. To substantiate the case the prosecution examined PW1 CRL.A.No.441 OF 2005(C) 3 to PW16. Exts.P1 to P30 were also marked. 4. After going through the evidence and documents the trial court found that the first accused committed the offence under Section 395 IPC. He is sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.10,000/-. In default of payment of fine, the accused is directed to undergo simple imprisonment for a further period of four months. Aggrieved by the conviction and sentence, this Criminal Appeal is filed by the 1[st] accused. 5. When this appeal came up for consideration, there is no representation for the appellant. Hence the investigating officer was directed to issue notice to the appellant. The notice was received by the appellant. Even then, there is no representation. Hence, I appointed Advocate Sri.Nabil Khader as amicus curiae. 6. Heard the amicus curiae and the learned Public Prosecutor. 7. The amicus curiae supported the case of the appellant. The counsel submitted that even if the entire allegations are accepted, the offence under Section 395 IPC is not made out. The counsel submitted that PW1 and PW2 has no case that accused Nos.2 to 12 committed any criminal activities CRL.A.No.441 OF 2005(C) 4 in this case. Accordingly, the trial court acquitted the accused Nos.2 to 12. In such circumstances, the counsel submitted that there cannot be a conviction under Section 395 IPC because to attract an offence under Section 395 IPC, the first and foremost ingredient is that there should be five or more persons involved in the case. The counsel submitted that, for that simple reason the offence under Section 395 IPC is not made out. Then the learned counsel submitted that even if the entire allegations are accepted, the offence under Section 379 IPC is also not made out in this case because the ownership of the theft article is not proved in this case. The counsel submitted that the admitted case of the prosecution is that a packet is handed over by PW3 to PW1 for handing over the same to PW4. The contents of packets is not known to PW1. Thereafter, the prosecution case is that PW1 was travelling in an autorickshaw and then the accused took this autorickshaw and this packet. Subsequently, some amount is recovered from the property of the 1[st] accused based on a recovery under Section 27 of the Evidence Act. According to the counsel, there is no link between the seized article based on the statement of the accused and the packet which according to the prosecution is taken by the 1[st] accused. The counsel submitted that the trial court disbelieved the CRL.A.No.441 OF 2005(C) 5 evidence of PW3 as far as the ownership of the amount is concerned. In such circumstances according to the counsel, the offence under Section 379 IPC is also not made out. 8. The Public Prosecutor submitted that there is adequate oral and documentary evidence to prove the offence under Section 395 IPC and there is nothing to interfere with the conviction and sentence imposed on the 1[st] accused. 9. The point for consideration in this case is whether the accused committed the offence under Section 395 IPC. 10. Section 395 IPC says about the punishment for dacoity. Decoity is defined in Section 391 IPC, which is extracted hereunder: “391. When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit “dacoity”. 11. Therefore, the main ingredients to attract Section 391 IPC is that there should be five or more persons conjointly commit or attempt to commit a robbery. Then only the offence under Section 391 IPC will attract. 12. In this case a final report is filed against twelve accused. While giving evidence during the time of trial, PW1 and PW2, who are the alleged eye witnesses in this case CRL.A.No.441 OF 2005(C) 6 deposed in clear terms that except first accused, the other accused has not participated in the alleged criminal activity. If that is the case, there is only the first accused who committed the prosecution. The trial court convicted only the first accused and the other accused were acquitted. The counsel for the appellant relied the judgment of this Court in **Nisar v. State of Kerala (2020(3) KHC 363)** , the relevant portion is extracted hereunder: “10. The second charge is of dacoity. It is to be noted that robbery is the aggregated form of theft and would transcend to the graver offence of dacoity when the robbery is committed by five or more persons conjointly. According to the version of PW2, six persons had forced him into the Maruti Van and the first accused and another person had committed theft of cash from his pockets after causing hurt to him. Undoubtedly, the ingredients for attracting the offence of robbery punishable under Section 392 of the IPC was brought out in evidence. But, for the robbery to be termed as dacoity, the act of robbery or its attempt should have been made by five or more persons conjointly. Here, the crucial aspect is that, by the acquittal of all accused, other than the appellant and the first accused, the number of offenders got reduced to two. In Om Prakash v. State of Rajasthan [1998 SCC (Cri) 696], the Honourable Supreme Court had occasion to consider the effect of acquittal of few among the accused, thereby reducing the number of remaining accused to less than five, to a charge under Section 395 IPC. The relevant portion of the judgment in Om Prakash is extracted below: “7. It was lastly argued by the learned counsel that even after believing their evidence the courts below could not have convicted the appellants under Section 395 IPC as the charge of dacoity was against five named persons and out of them two were acquitted by the trial court. Neither the charge nor the CRL.A.No.441 OF 2005(C) 7 finding recorded by the trial court was that accused Om Prakash, Munna, Amarjit Singh and two other unknown persons had committed dacoity. Specifically, the five named accused were alleged to have committed the offence. Two accused having been acquitted it ought to have been appreciated that only the remaining three accused had committed the said offence. Therefore, it was not proper to convict the remaining three accused under Section 395 IPC. Their conviction will have to be altered to one under Section 392 IPC.” 13. In the light of the above dictum laid down by this Court based on the decision of the Apex Court, I think, the appellant cannot be convicted under Section 395 IPC. Even if we accept the entire evidence of PW1 and PW2 their case is that, only the first accused participated in the crime. If that is the case, there is no question of dacoity. 14. Then the question is whether there is robbery. Robbery is defined in Section 390 IPC. Which is extracted hereunder: “390. 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, includes CRL.A.No.441 OF 2005(C) 8 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.” 15. To attract Section 390 IPC, the prosecution has to prove that, in order to commit 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. In this case the prosecution has not proved the same. Even if we go through the evidence of PW1 and PW2, there is absolutely no case to them to the effect that, while committing the theft or in carrying away or attempting to carry away property obtained by theft, the offender for that end voluntarily causes or attempt to cause to any person death or hurt or wrongful restrain or fear of instant death or instant hurt or of instant wrongful restrain. The charge framed by the Court in this case is extracted hereunder: “That you A1 to A12 on 21/8/1997 at about 11:30 a.m. at Thrikkalangode with intention to commit dacoity committed criminal conspiracy from the house of A1 bearing No.T.PII/90 and chases the autorickshaw driven by CW1 bearing No.KL.10/F 979 in a jeep bearing No. KLM 1621 and an autorickshaw bearing No.KL.10C.7826 and stopped the autorikshaw driven by CW1 and caught hold of CW1 and CW2 from inside the vehicle and took CRL.A.No.441 OF 2005(C) 9 them in a jeep to a deserted place and committed dacoity by committing robbery of Rs.3,00,000/- kept inside the autorikshaw and committed the theft of the said autorikshaw and thereby committed the offence punishable under Section 120B and 395 of I.P.C and within the cognizance of Court of Session, Manjeri. And I hereby direct that you be tried before the court on the said charge.” And I hereby direct that you be tried before the court on the said charge. Dated this the 16[th] day of March, 2004.” 16. According to me, in the facts and circumstances of the case, the offence under Section 392 I.P.C is also not made out in this case. 17. Then the question is whether the offence under Section 379 I.P.C is attracted. To attract the offence under Section 379 I.P.C, the prosecution has to prove that, there is theft. Theft is defined in Section 378 I.P.C. Section 378 of I.P.C is extracted hereunder: **“ 378. Theft -** Whoever, intending to take dishonestly any movable 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. Explanation 1.- A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth. Explanation 2.- A moving effected by the same act which effects the severance may be a theft CRL.A.No.441 OF 2005(C) 10 Explanation 3.- A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it. Explanation 4.- A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal. Explanation 5.- The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied.” 18. According to the prosecution, PW3 entrusted a packet which contains Rs.2,99,000/- to PW1 for handing over the same to PW4. There is no case to the prosecution that, except the words of PW3 that, the packet contained the amount, PW1 didn't see the amount. Thereafter, A1 took the autorikshaw and the amount from PW1. The trial court disbelieved the evidence of PW3 as far as the ownership of the money is concerned. This point is considered by the trial court in paragraph 23 of the impugned judgment. Paragraph 23 of the impugned judgment is extracted hereunder: “ 23. It is to be noted that PW3 has got a case that he lost a sum of Rs.2,99,000/- which entrusted to PW1. PW1 has stated that he has to entrust the amount to his brother in law so as to remit it in Kerala Financial Corporation in repaying loan dues. It is true that no scrap of paper is produced by PW3 or 4 to substantiate the stand that the amount is entrusted with PW1 so as to repay it in Kerala CRL.A.No.441 OF 2005(C) 11 Financial Corporation. How PW3 has raised so much of amount is not explained by PW3 with reliable evidence. According to him he raised the amount by way of pledging gold ornaments and kept it in his house for one month. PW3 admitted that he bid a Kuri. But on what date the pledge was made and how many ornaments are pledged etc. are not disclosed by producing reliable records. No bank records are produced by PW3 in order to prove that he bid a kuri and took that much amount from the bank. In total PW3 has not produced any records to substantiate his claim that he entrusted a sum of Rs.2,99,000/with PW1. PW3 has also not claimed the amount till filing of CMP 37/2005 on 29.1.2005. The defence counsel has argued that the entire amount entrusted with PW1 is black money and PW3 is distributing it to his customers and it is on that reason PW3 has failed to produce any records to prove that Rs.2,99,000/- is received by him from authenticated source. But such a reason is not a shelter for the first accused to get a clean acquittal to the act of robbery from the clutches of law. Since PW3 has failed to furnish satisfactory evidence to prove his ownership over the entire cash by producing reliable records. I am of the view that the argument advanced by the counsel appearing for the defence cannot be negatived but instead I can deny in granting the total amount to PW3. It is also evident from the evidence of PW1 and PW2 that they have no case that A2 to A10 have been actually involved in the offence. If that be so the alleged recovered amount from other accused except A1 will not be the property of PW3. Therefore the request for getting the total amount to PW3 cannot be allowable. Hence the amount recovered by way of Exts.P6 alone (Rs.30,000/-) can be given to PW3 after the appeal period that also subject to production of 'no objection certificate' from the enforcement directorate' Kozhikkode. The accused Nos. 2 to 10 have not claimed the amount as of their own. Therefore the remaining amount have to be confiscated to the Government. Other properties have to confiscated to Government.” 19. In the light of the above finding, according to me, the offence under Section 379 I.P.C is also not proved in this case. CRL.A.No.441 OF 2005(C) 12 Moreover the prosecution miserably failed to prove that the recovered money based on the statement of the 1[st] accused is the theft article in this case. The prosecution case is that PW3 handed over a packet to PW1 for handing over the same to PW4. PW1 is not aware about the contents in the packet. The autorickshaw is also not produced, which is alleged as one of the theft article. 20. Moreover, there is no charge under Section 379 or Section 392 I.P.C framed against the appellant. In such circumstances, it is improper to convict the appellant under Section 379 and Section 392 of I.P.C at this stage. This incident happened in 1997 and now 23 years elapsed. The other accused were already acquitted. At this stage, it will be improper to remand this matter to the lower court for framing charges under Section 379 or under Section 392 I.P.C. Therefore, I think, the appellant can be given the benefit of doubt. 21. Before concluding, I wish to place on record my deep appreciation to Advocate Nabil Khader, Amicus Curiae, who argued this appeal to the satisfaction of the court. In the result, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant as per judgment dated 26.02.2005 in S.C.No.265/2000 on the file of the CRL.A.No.441 OF 2005(C) 13 Additional Sessions Judge, Fast Track Court No.III (Adhoc), Manjeri is set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant is cancelled. **Sd/-** **P.V.KUNHIKRISHNAN** **JUDGE** **ab/jms**