Criminal Appeal Nos.1317 of 2018 & 1018 of 2019

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **FRIDAY, THE 24TH DAY OF JULY 2020 / 2ND SRAVANA, 1942** ## **CRL.A.No.1018 OF 2019** **AGAINST THE JUDGMENT & SENTENCE IN S.C.NO.111/2016 DATED 30-08-2018 OF THE ADDITIONAL SESSIONS COURT, MANANTHAVADY** ## **APPELLANT/2ND ACCUSED:** **VINOD @ KAKKA VINOD @ MOONNAR, AGED 39 YEARS S/O.RAVI, C.NO.2316, CENTRAL PRISON & CORRECTIONAL HOME, POOJAPPURA, THIRUVANANTHAPURAM, AND RESIDED AT KALLUVILA HOUSE, CHEMMARUTHI VILLAGE, THIRUVANANTHAPURAM.** **BY ADV. ADV. REJI.R(STATE BRIEF)** ## **RESPONDENT/COMPLAINANT:** - **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** - **2 THE SUB INSPECTOR OF POLICE, VELLAMUNDA POLICE STATION.** **BY SRI.RAMESH CHAND, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.07.2020, ALONG WITH CRL.A.1317/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl. Appeal Nos.1317 of 2018 & 1018 of 2019 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **FRIDAY, THE 24TH DAY OF JULY 2020 / 2ND SRAVANA, 1942** ## **CRL.A.No.1317 OF 2018** **AGAINST THE JUDGMENT IN S.C.NO.111/2016 DATED 30-08-2018 OF THE ADDITIONAL SESSIONS COURT, MANANTHAVADY** ## **APPELLANTS/ACCUSED:** **1 AMEEN AGED 29 YEARS S/O.AMEER, PUTHENVEEDU, VETTOOR VILLAGE, THIRUVANANTHAPURAM.** **2 JOSHI AGED 35 YEARS S/O.FRANCIS, KALLARATHOTTAM SABEESH BHAVAN, MANAMBOOR VILLAGE, THIRUVANANTHAPURAM.** **BY ADV. SRI.LATHEESH SEBASTIAN** ## **RESPONDENT/COMPLAINANT/STATE:** **STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, VELLAMUNDA POLICE STATION IN CRIME NO.269/2015 OF VELLAMUNDA POLICE STATION, WAYANAD REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI. RAMESH CHAND, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.07.2020, ALONG WITH CRL.A.1018/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl. Appeal Nos.1317 of 2018 & 1018 of 2019 3 ## **P.B.SURESH KUMAR, J. -------------------------------------** ## **Criminal Appeal Nos.1317 of 2018 and 1018 of 2019** **-------------------------------------Dated this the 24[th] day of July, 2020** ## **JUDGMENT** The appellants in Criminal Appeal No. 1317 of 2018 are accused Nos.1 and 3 in S.C. No. 111 of 2016 on the files of the Additional Sessions Judge, Mananthavady and the appellant in Criminal Appeal No.1018 of 2019 is the second accused in the said case. They challenge in these appeals their conviction and sentence in the said case. 2. There were altogether seven accused in the case and only accused Nos.1 to 3 among them faced trial. 3. The case of the prosecution is that on 04.07.2015, at about 4.30 a.m., the accused, in furtherance of their common intention to loot the gold ornaments of the de facto complainant, trespassed into the house of the de facto complainant, looted her gold ornaments and attempted to murder the son of the de facto complainant, and thereby Crl. Appeal Nos.1317 of 2018 & 1018 of 2019 4 committed the offences punishable under Sections 450, 380, 394, 307 and 120B read with Section 34 of the Indian Penal Code (the IPC). 4. On the accused pleading not guilty of the charges levelled against them, the prosecution examined 38 witnesses as PW1 to PW38 and proved through them 40 documents as Exts.P1 to P40. The witnesses examined on the side of the prosecution have also identified the material objects in the case, namely MO1 to MO10. Among the witnesses examined, PW1 is the doctor who examined the son of the de facto complainant on 04.07.2015, PW4 is the de facto complainant herself, PW5 is the son of the de facto complainant and PW36 is the police official who recorded the statement of the de facto complainant. Among the documents, Ext.P1 is the wound certificate proved by PW1 and Ext.P3 is the First Information Statement proved by PW4. Among the material objects, MO1 is the knife allegedly used by the third accused to injure the son of the de facto complainant. 5. On an appraisal of the materials on record, the Crl. Appeal Nos.1317 of 2018 & 1018 of 2019 5 court below found the accused guilty of the offences punishable under Sections 450, 394 and 307 read with Section 34 of the IPC, convicted them and imposed the same sentence, viz, rigorous imprisonment for ten years and to pay a fine of Rs.25,000/- with default sentence for all the three offences. The court also ordered the substantive sentences imposed on the accused to run concurrently. As noted, the accused are aggrieved by their conviction and sentence. 6. Heard the learned counsel for the accused as also the learned Public Prosecutor. 7. The learned counsel for accused Nos.1 and 3 contended that the conviction of the accused under Sections 394 and 307 of the IPC are unsustainable. According to him, even going by the prosecution case, no injury whatsoever was caused by the accused to the de facto complainant while snatching away her gold ornaments and it was when the son of the de facto complainant obstructed the accused from fleeing away from the scene that the injuries were inflicted by the third accused on the son of the de facto complainant. It was argued by the learned counsel that in the circumstances, offence under Crl. Appeal Nos.1317 of 2018 & 1018 of 2019 6 Section 394 of the IPC is not made out. The learned counsel relied on the decision of this Court in **Devassia Joseph v. State of Kerala,** 1982 KHC 4, in support of the said argument. It was also pointed out by the learned counsel that the materials on record would only show that when the son of the de facto complainant attempted to prevent the accused from fleeing away from the scene, there was a scuffle and that it is in the course of that scuffle that he suffered injuries on his legs. It was argued by the learned counsel that having regard to the circumstances under which the injuries were suffered by the son of the de facto complainant, and the nature of the injuries suffered by him, it cannot be inferred that the accused intended to commit murder of the son of the de facto complainant. If that be so, according to the learned counsel, the only offence made out is the offence punishable under Section 324 of the IPC. The learned counsel has relied on the decision of the Apex Court in **Jage Ram and Others** v. **State of Haryana,** 2015 KHC 4060, in support of the said argument. It was contended by the learned counsel that if offences punishable under Sections 394 and 307 of the IPC are not made out, necessarily, the Crl. Appeal Nos.1317 of 2018 & 1018 of 2019 7 prosecution cannot make out a case under Section 450 of the IPC. The essence of the submission made by the learned counsel for accused Nos.1 and 3, therefore, was that the accused, at the most, could have been convicted only for the offences punishable under Sections 380, 324 and 451 of the IPC. Alternatively, the learned counsel argued that the sentence imposed on accused Nos.1 and 3 by the court below is excessive and grossly disproportionate to the gravity of the offences proved. 8. The learned counsel for the second accused endorsed the arguments advanced by the learned counsel for accused Nos.1 and 3. In addition, she also pointed out that no overt act, whatsoever, on the part of the second accused has been established by the prosecution and the court below was, therefore, not justified in convicting the second accused. 9. Per contra, the learned Public Prosecutor, placing reliance on the evidence tendered by the de facto complainant and her son, submitted that insofar as it is established that the third accused has inflicted injuries on the son of the de facto complainant in the course of the transaction Crl. Appeal Nos.1317 of 2018 & 1018 of 2019 8 in which the accused have committed theft of the gold ornaments of the de facto complainant, a case of Section 394 is made out and it is, therefore, irrelevant as to whether the prosecution has established the offence under Section 307 of the IPC. Similarly, it was also submitted by the learned Public Prosecutor that insofar as the prosecution has established a case of Section 394 of the IPC, Section 450 of the IPC would automatically get attracted. The learned Public Prosecutor has also submitted that having regard to the facts and circumstances of the case, it cannot be said that the sentences imposed on the accused are disproportionate or excessive. 10. Having heard the learned counsel for the parties on either side and having perused the materials on record, it is seen that the points arising for consideration are; (i) whether the prosecution has established the guilt of the accused under Sections 394 and 307 of the IPC and (ii) whether the sentences imposed on the accused are disproportionate or excessive. 11. The learned counsel for the accused placed reliance only on the evidence of PW1, PW4, PW5 and PW36 and the documents, Exts.P1 and P3 to bring home the contentions Crl. Appeal Nos.1317 of 2018 & 1018 of 2019 9 advanced. As noted, the case of the prosecution is that on 04.07.2015, at about 4.30 a.m., in furtherance of the common intention shared by the accused to loot the gold ornaments of the de facto complainant, they trespassed into the house of the de facto complainant, looted her gold ornaments and attempted to murder the son of the de facto complainant. The evidence as regards the core aspect of the crime has been given by the de facto complainant, PW4 and her son, PW5. The essence of the evidence given by PW4 is that on 04.07.2015, at about 4.00 a.m., when she woke up hearing a sound in front of her house, she saw that the accused barging into her room; that the third accused then placed a knife on her neck and directed her not to make noise and the remaining accused thereupon removed by force the gold chain weighing 5 ½ sovereigns, a hand chain weighing one sovereign and anklets weighing 3 sovereigns worn by PW4. It was also deposed by PW4 that though the accused attempted to remove the bangle worn by her, they could not do so and then they attempted to inflict injuries on her and she cried aloud. She also deposed that her son who was sleeping in the adjacent room then rushed inside her room and the accused Crl. Appeal Nos.1317 of 2018 & 1018 of 2019 10 then had a scuffle with him and flew away from the scene thereafter, after inflicting cut injuries on him. PW4 also deposed that as there was light in the room, she could identify the accused. PW5, the son the de facto complainant deposed that on 04.07.2015 at about 04.30 am, while he was sleeping, he heard a sound from the room of his mother and while he was proceeding to the room of his mother, he found the accused coming out of that room and he then caught hold of one among them. He deposed that then there was a scuffle between him and that accused and both of them fell down. PW5 deposed that one among the remaining accused then inflicted injuries on his left thigh and also on his legs below the knee using MO8 knife. PW5 also deposed that there was light in the room and he could, therefore, identify the accused. A combined reading of the evidence tendered by PW4 and PW5 would indicate beyond doubt that the accused had barged into the house of the de facto complainant on the relevant day; that they had snatched the gold ornaments worn by the de facto complainant and had inflicted injuries on the son of the de facto complainant who attempted to prevent them from fleeing away from the scene. Crl. Appeal Nos.1317 of 2018 & 1018 of 2019 11 12. The learned counsel for accused Nos.1 and 3 did not dispute the proposition that the theft is “robbery” if, in order to the committing 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. The learned counsel has also not disputed the proposition that if any person, in committing robbery voluntarily causes hurt to any person, the offence punishable under Section 394 of the IPC is made out. The argument advanced by the learned counsel, however, is that it has not been established that any of the accused has inflicted any injury to PW4, the de facto complainant while committing robbery. According to the learned counsel, the third accused caused hurt to the son of the de facto complainant after the occurrence while the accused were attempting to flee away from the scene, that too, when the son of the de facto complainant attempted to prevent them from fleeing away from the scene. It was the submission of the learned counsel that the hurt was not caused Crl. Appeal Nos.1317 of 2018 & 1018 of 2019 12 by the third accused in connection with the robbery and therefore, a case under Section 394 of the IPC is not made out. I am unable to agree. Section 390 of the IPC which defines 'robbery' reads thus: **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. Section 394 of the IPC, which defines the offence 'voluntarily causing hurt in committing robbery' reads thus: 394. Voluntarily causing hurt in committing robbery.—If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. Crl. Appeal Nos.1317 of 2018 & 1018 of 2019 13 A plain reading of Section 394 does not indicate that in order to attract the offence defined therein, the injury must be caused to the person from whose possession the accused has committed theft of the movable. On the other hand, a reading of the provision in the light of Section 390 of the IPC would indicate that the offence is attracted if the accused causes hurt to anyone while committing the theft or while carrying away the property obtained by the theft. Coming to the case on hand, in so far as it is established that the accused caused hurt to the son of the defacto complainant while carrying away the property obtained by theft, the offence is attracted. 13. At the same time, there is force in the contention of the learned counsel for accused Nos.1 and 3 that the offence under Section 307 of the IPC is not attracted. The injuries alleged to have been inflicted by the third accused on the son of the defacto complainant as recorded in Ext.P1 reads thus: 1. 11cm laceration behind left thigh. 2. 7cm lacerated wound left leg below knee 3. 2cm lacerated wound left foot and right foot. Crl. Appeal Nos.1317 of 2018 & 1018 of 2019 14 The aforesaid injuries cannot be said to be injuries inflicted with the intention or knowledge that if he by that act, caused death, he would be guilty of murder. The conduct of the third accused in causing injury to the son of the defacto complainant, according to me, would make out only the offence punishable under Section 324 of the IPC. 14. However, in so far as it is found that a case under Section 394 of the IPC is made out by the prosecution, the argument advanced by the learned counsel that the prosecution has not made out a case under Section 450 of the IPC is only to be rejected. 15. The specific case of the prosecution is that the accused had shared the common intention to commit the offences alleged, and the proved facts would certainly make out the common intention shared by the accused to commit the offences alleged against them. As such, there is no merit in the argument advanced by the learned counsel for the second accused that the prosecution has not established any overt act on his part. According to me, the presence of the second Crl. Appeal Nos.1317 of 2018 & 1018 of 2019 15 accused along with the other accused at the time of occurrence at the scene is sufficient to establish his guilt. 16. The outcome of the discussion aforesaid is that the accused are liable to be convicted for the offences punishable under Sections 450, 394 and 324 of the IPC. 17. What remains to be considered is the question as regards the correctness of the quantum of sentence imposed on the accused. The serious among the offences established against the accused is the offence punishable under Section 394 of the IPC. Having regard to the facts and circumstances of the case, I am of the view that five years rigorous imprisonment with the same amount of fine and the same default sentence imposed by the court below would be the adequate sentence to be imposed on the accused for the offences punishable under Sections 394 and 450 of the IPC and two years rigorous imprisonment with a fine of Rs.10,000/- and in default of payment of fine, three months simple imprisonment would be the adequate sentence for the offence punishable under Section 324 of the IPC. Crl. Appeal Nos.1317 of 2018 & 1018 of 2019 16 In the result, the appeals are allowed in part. The conviction of the accused is altered to one under Sections 394, 450 and 324 of the IPC. The sentence imposed on the accused is modified to five years rigorous imprisonment with the same amount of fine and the same default sentence imposed by the court below, for the offences punishable under Sections 394 and 450 of the IPC and two years rigorous imprisonment with a fine of Rs.10,000/- and in default of payment of fine, three months simple imprisonment, for the offence punishable under Section 324 of the IPC. In all other respects, the impugned judgment will stand affirmed. **Sd/P.B.SURESH KUMAR JUDGE** ds/drk 21.01.2020