Devendor Singh @ Bhandichor v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 20[TH] DAY OF DECEMBER 2023 / 29TH AGRAHAYANA, 1945 CRL.A NO. 651 OF 2017 ``` ``` AGAINST THE JUDGMENT DATED 22.05.2017 IN SC NO.540 OF 2013 OF ADDITIONAL SESSIONS COURT-II, THIRUVANANTHAPURAM. CRIME NO.118/2013 OF PEROORKADA POLICE STATION, ``` ## **`THIRUVANANTHAPURAM`** ## **`APPELLANT/ACCUSED:`** ``` DEVENDOR SINGH @ BHANDICHOR, S/O.KRIPAL SINGH,KARVAR NAGAR, G-285, GILLI NO.8, KARVAR NAGAR VILLAGE, NORTH EAST DISTRICT, DELHI STATE. ``` ``` BY ADVS.SRI.BIJU ANTONY ALOOR SRI.Y.BEYLINE DASY SRI.P.C.GEORGE SMT.LIJI KUTTAPPAN SRI.SATHEESH MOHANAN SRI.K.I.TOGI ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. ``` ## **`SMT. MAYA M.N (PUBLIC PROSECUTOR)`** ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.01.2022 AND THE COURT ON 20.12.2023, DELIVERED THE FOLLOWING: ``` -:2:- ## Crl.A. No. 651 of 2017 ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 651 of 2017 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of December, 2023 ## **JUDGMENT** The appeal in question is originated from a judgment passed by Additional Sessions Judge-II, Thiruvananthapuram on 22.05.2017 (for short, ‘the trial court’) whereby the appellant was found guilty for the offence under Sections 457, 461, 380, 413 and 201 of the Indian Penal Code, 1860 (for short ‘the IPC’) and convicted and sentenced. Appellant is the sole accused in S.C. No.540/2013 and he was sentenced to undergo rigorous imprisonment for ten years under Section 457 IPC and to pay a fine of `10,000/- and to undergo imprisonment for three more months in case of default in payment of fine; to undergo rigorous imprisonment for 2 years under Section 461 IPC; to undergo rigorous imprisonment for seven years and to pay fine of `10,000/- under Section 380 IPC and to undergo imprisonment for three more months in default of payment of fine. Set-off was Crl.A. No. 651 of 2017 -:3:- also allowed for the period already undergone by him in custody prior to and during trial. Sentences were directed to be served concurrently. 2. Rather than delving on the arguments orally advanced by the learned counsel, this Court finds it appropriate and reasonable to extract the relevant portions of the argument note furnished by the learned counsel titled as ‘conclusion’ in order to maintain clarity and brevity :- “The appellant submits that whatever stated in the grounds of Appeal are the part and parcel of this arguments note and same may be considered in addition to this. The appellant further submits that the prosecution has miserably failed to prove the case against the Appellant especially either under Section 379 or 380 of IPC which shall not be run together and in both cases of theft, even otherwise the consent is very material and the same was given to the Appellant by PW2. There is no evidence to prove the case of under Section 457 of IPC as the Appellant never entered into the dwelling house of the PW1 and PW2, but there are some evidence as the Appellant entered into the premises or compound of PW1 and the same can be accepted as the only allegation to attract commission of an offence under Sections 447 or 448 of IPC. The allegation of 461 even otherwise alleged to be proved cannot be accepted as the Appellant has never forged any number plate for getting any benefit to ## Crl.A. No. 651 of 2017 ## -:4:- the Appellant and no contrary evidence has been proved otherwise. The main crux of the allegations as the case was tried before the learned Sessions Court due to cognizance taken of under Section 413 of IPC and it is settled that Sections 379 and 380 cannot be go together with Section 411 to 414 of IPC. In the present case the culprit cannot be a receiver since there is no evidence that the Appellant was habitually receiving the stolen property. The very allegation about the Appellant as a habitual offender is not proved. In general the prosecution failed to prove the case against the Appellant beyond reasonable doubt and on that count the Appellant is entitled to get acquitted.” ## 3. The points of argument discerned from the above extract are : “1. Prosecution miserably failed to prove the offence under Section 379 or 380 IPC, since consent, the crucial element underlying those offences, was evidenced as given by PW2. 2. Evidence is insufficient to prove commission of the offence under Section 457 IPC. According to him, there is total absence of evidence to establish the entry of the appellant into the dwelling house of PW1 and PW2. 3. According to him, on the strength of the evidence on record that the accused entered into the Crl.A. No. 651 of 2017 ## -:5:- premises or compound of the house of PW1 & PW2, the conclusion at the most can be reached was that the accused committed offences under Sections 447 or 448 IPC. 4. Evidence already on record is insufficient to establish that the accused has forged the number plate of the vehicle for getting any benefit to him and therefore, the offence under Section 461 IPC is not proved. 5. The law is well settled that the offences under Sections 379 and 380 IPC will not go alongwith those under Sections 411 to 414 IPC. 6. Evidence is not forthcoming from the side of the prosecution to establish that the accused was habitually receiving stolen properties.” 4. It is indicated from the points of arguments that the prosecution miserably failed to prove the accusations raised against the accused, for which he stood charged by the trial court and faced trial. 5. The learned Public Prosecutor urged on the contrary that the accusations levelled against the accused stood proved by the prosecution beyond reasonable doubt on the strength of the Crl.A. No. 651 of 2017 -:6:- evidence adduced and therefore, the judgment under challenge deserves only to be maintained. 6. An idea about the facts of the prosecution case being relevant, is narrated hereunder in brief: On 21.01.2013 at about 00.04 hours, the accused trespassed into the residential house of PW1 and stole some valuable articles including a Mitsubishi Outlander car bearing Registration No.KL-01-BG 29, flew away to Tamil Nadu and making use of the R.C book of the car and fabricating its number plate, sold it there. Alleging commission of offences punishable under Sections 457, 461, 380 & 201 IPC, Crime No. 118/2013 was registered against him at Peroorkada Police Station. The accused was arrested from Pune on 27.01.2013 and was detained in police custody for 12 days. 7. Investigation was commenced and on its completion, a final report was laid before Judicial First Class Magistrate Court-II, Thiruvananthapuram chargesheeting him for offences punishable under Sections 457, 461, 380, 413 & 201 IPC. Copies of all relevant records proposed to be relied on by the Crl.A. No. 651 of 2017 -:7:- prosecution during trial were furnished to the accused in compliance of Section 207 of the Code of Criminal Procedure, 1973, (for short ‘Cr.P.C.’) The case was then committed to Court of Sessions, under Section 209(a) Cr.P.C. 8. On receiving the case file, the Court of Sessions registered SC No.540/2013 on its file. Based on the arguments advanced by the learned Public Prosecutor and the learned counsel for the accused and the relevant records furnished by the prosecution, charge was framed by the court against the accused under Sections 457, 461 and 380 IPC. The prosecution then had also filed an application seeking to incorporate Section 413 IPC into the charge and that was allowed. 9. It was urged by the learned counsel that while taking cognizance of the offences triable by the learned Magistrate, the trial court should have sent it to the Magistrate, having jurisdiction for enabling the accused to avail the benefit of plea bargaining. Crl.A. No. 651 of 2017 -:8:- 10. Since the accused has raised a plea that he is not guilty when the accusations in the charge was read over and made to understand, the trial was scheduled and held. 11. The accused faced trial. The prosecution examined PWs 1 to 39, and marked Exts.P1 to P89. Material objects seized by the prosecution were also identified as MOs 1 to 96. 12. According to the learned counsel the Prosecutor miserably failed to prove the exact time of the incident. According to him, the version of PWs 1 and 2 and other witnesses examined by the prosecution were inconsistent even in material aspects of the case, but the trial court failed to advert to those while appreciating the evidence. 13. According to him, as per the prosecution case the place of occurrence was shown to the police by PW1 during examination, but he has spoken that Ext.P2 (scene mahazar) was prepared without verifying the place of occurrence. 14. According to him, the mandatory formalities envisaged under Section 27 of the Evidence Act were also not complied with by the prosecution. According to him the prosecution does not Crl.A. No. 651 of 2017 -:9:- have a case that the properties stolen were concealed by the accused and for that reason itself, there is no scope for recovery of those. According to him, relevant portions of the confession statement were fabricated by the Police and therefore those are hit by Sections 24 and 25 of the Evidence Act. According to him, even on the aspects of recovery, the witnesses of the prosecution did not corroborate. According to him, though MOs 1 to 17 were marked in evidence, the prosecution failed to establish that those belong to PW1. Thus, it was contended that the recovery allegedly effected under Section 27 Evidence Act is a false and fabricated one. 15. According to him, while committing the case, an offence exclusively triable by Court of Sessions was not there in the chargesheet laid by the police against the accused and therefore, the Magistrate ought not have committed the case and by doing so, the accused was prejudiced. 16. Only after committal of the case to the Court of Sessions that the prosecution approached the court with a prayer to incorporate an offence under Section 413 IPC. Crl.A. No. 651 of 2017 -:10:- 17. According to the learned counsel the trial court failed to advert to those crucial and important aspects while proceeding with the trial and therefore is erred. According to him, the term ‘Habitual Offender’ is defined under Section 110 Cr.P.C. According to him, habitual offender and habitual offender receiving stolen properties cannot go together. According to him, the prosecution failed to prove previous conviction of the accused under Section 298 Cr.P.C. 18. According to him the prosecution failed to cite and examine witnesses staying near to the spot of occurrence as well as the place wherefrom recovery of the allegedly stolen articles were effected. According to him, if the trial court had applied its mind to the exaggerated versions and omissions brought in evidence by the accused while cross examining the prosecution witnesses, a finding that the accused is guilty of the offences would not have arrived at. According to him, the prosecution has collected evidence to establish its case by putting leading questions which absolutely is impermissible in law. Crl.A. No. 651 of 2017 -:11:- 19. According to him, legal formalities contemplated under Section 41 Cr.P.C while arresting the accused are not complied with in the case on hand. 20. It was contended that the chance prints of the accused were collected after a lapse of 12 days in custody, and therefore it cannot be treated as a valuable piece of evidence. According to the learned counsel, PW2, the daughter of PW1 and the accused were known to each other since sufficiently earlier and on the former’s invitation that the accused visited the house of PW1 and that was discernible from the version of PW1 during cross examination. According to him, the trial court ought to have directed further investigation, but without doing so, it proceeded with the trial and found the accused guilty of the offences. 21. According to him, the points enumerated by him, if was properly dealt with by the trial court, the accused would have been given the benefit of doubt and thereby acquittal. 22. The learned Public Prosecutor contended on the contrary that the judgment under challenge was passed by the Crl.A. No. 651 of 2017 -:12:- trial court after appreciating the entire evidence adduced by the prosecution in its proper perspective and for the reason itself, it is liable to be maintained. According to her, the arguments projected by the learned counsel for the accused, when viewed in the backdrop of the evidence already adduced by the prosecution appear untenable and are only to be discarded. 23. The offences primarily incorporated in the chargesheet at the relevant time when it was laid before the trial court were offences punishable under Sections 458, 461 and 380 IPC. Undoubtedly those offences are triable by any Magistrate. But, the learned Magistrate committed the case to the Court of Sessions and after committal, a charge was also framed by Court of Sessions for those offences. Charge framed was also read over and explained to the accused. He pleaded not guilty and claimed to face trial. The trial commenced and in the meantime, an application was filed by the learned Public Prosecutor seeking alteration of the charge by incorporating an offence under Section 413 IPC. Both sides were heard and the application was allowed and an offence under Section 413 IPC was incorporated Crl.A. No. 651 of 2017 -:13:- into the charge. The procedure under Section 217(a) Cr.P.C was also complied with. 24. Prosecution examined PWs 1 to 39, marked Exts.P1 to 89 and identified MOs 1 to 96. On completion of the evidence of the prosecution, accused was questioned under Section 313(1) (b) Cr.P.C with reference to the incriminating circumstances brought out by the prosecution against him, while examining it’s witnesses. The accused denied the questions put and filed a written statement. It was contended that the accused is innocent of all allegations levelled against him and the case on hand was fabricated against him. According to him, the dwelling house of PWs 1 and 2, was visited by him on the alleged day, but he did not enter into the house for the purpose of house breaking and to steal the articles therefrom. 25. It was contended further that the accused never drove the car belongs to PW1 and abandoned the same at a place called Krishnagiri. According to him, the accused landed at Thiruvananthapuram only for meeting PW2, a psychologist by profession. PW2 invited him to her house on 20.01.2013 and Crl.A. No. 651 of 2017 -:14:- therefore, he went there. According to him, after reaching there, he waved his hands at PW2 and that image was captured by the CCTV installed there. According to him, PW2 then signalled him to leave the premises out of her apprehension that her connection with him would be detected by her relatives. According to him the car and other properties allegedly lost might have been taken by someone else and he was falsely implicated. According to him, MO1 to MO19 series were recovered from the abandoned car (MO14) and he is not responsible for keeping those in the car. 26. The prime contention raised by the learned counsel was that MOs 1 to MO19 series were not stolen by him and he was not responsible for keeping those later in the car found as abandoned at Krishnagiri and recovered therefrom by the Investigating Officer. 27. PWs 1 and 2 are the crucial witnesses of the prosecution in the case on hand and their versions have been relied on by prosecution to establish the allegations levelled against the accused. Both PWs 1 and 2 categorically deposed in Crl.A. No. 651 of 2017 -:15:- the trial court that valuables belonging to them were taken away from their house by someone after opening the electric gate with electronic remote control unit. PW1 gave first information statement about the missing of the properties before the police on 21.01.2013. He is none other than the father of PW2 and also the owner of the building wherefrom those were allegedly missing. According to PW1, a laptop, Stethoscope, Nokia Mobile phone, a watch, a bag and some other properties belonging to PW1 were also lost. PWs 1 and 2 deposed categorically that the missing properties belong to each of them and were in their possession at the relevant time. 28. The certificates of registration and insurance of the Outlander car allegedly lost from the courtyard of PW1 were produced by the prosecution in court and identified by PW1 during trial as MO15. The ownership manual and other vehicular documents were also identified and marked in evidence as MO16 series. It is evidenced from MO15 and MO16 series that the car belongs to PW1. Crl.A. No. 651 of 2017 -:16:- 29. The driver of PW1 was examined by the prosecution as PW3. According to him the car was parked by him at the courtyard in the night preceding it’s missing. According to PW3 the residential building and the car belongs to PW1 and were in his possession at the relevant time. The evidence of PWs 1 to 3 would unquestionably establish that the properties lost, identified by them in court as MOs 1 to 19, were owned and possessed either by PW1 or PW2. Then the question comes, whether ownership or title of the missing properties is relevant to be proved by the prosecution while proceeding to establish the guilt of an accused in case of theft. Section 378 IPC which defines theft is apposite extraction hereunder. It reads:- ## “378. **Theft** .— Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft. 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 -:17:- ## Crl.A. No. 651 of 2017 which affects the severance may be a theft. 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.” 30. Therefore, intentional and dishonest removal of any movable property out of the possession of a person without his consent by another person is sufficient to constitute the offence of theft. Ownership of the missing properties is not an ingredient to be established by the prosecution in a case of theft. Possession of the missing properties is relevant and crucial to be proved by the prosecution in it’s venture to establish the guilt of an accused for an offence of theft. Possession, undoubtedly stands proved by the prosecution beyond reasonable doubt through PWs 1 to 3. Therefore, the argument of the learned Crl.A. No. 651 of 2017 -:18:- counsel that for want of evidence to establish ownership of the missing properties either by PW1 or PW2, the prosecution suffers is discarded as untenable, being devoid of merits. 31. The argument secondly advanced was that the versions of PWs 1 and 2, during examination suffer for material discrepancies and that the trial court by failing to give due regard to those while appreciating the evidence, is erred and unjustified and thereby the accused is highly prejudiced. The depositions of those witnesses were read by this Court in full, but failed to notice any material discrepancies as urged by the learned counsel. Rather their versions are corroborative in material particulars. 32. According to the learned counsel for the appellant the proceedings by which the case was committed by the Magistrate to the Court of Sessions is illegal since the former failed to notice that an offence exclusively triable by a Court of Sessions was not incorporated in the final report laid before it. True that none of the offences incorporated in the final report were triable exclusively by Court of Sessions and therefore, the case ought Crl.A. No. 651 of 2017 -:19:- not to have been committed by the Magistrate by invoking the jurisdiction under Section 209 Cr.P.C. The offence under Section 413 IPC was triable only by Court of Sessions but that was found incorporated after committal of the case based on a prayer made by the prosecution in an application filed before the court. According to the learned counsel, the accused lost his opportunity for plea bargaining due to committal of the case and is highly aggrieved. 33. Section 209 Cr.P.C. being relevant in the context is extracted hereunder: “209. **Commitment of case to Court of Session when offence is triable exclusively by it** .- When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall- (a) commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made; (b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial; Crl.A. No. 651 of 2017 -:20:- (c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to the Court of Session.” 34. Therefore, on appearance of the accused or on procuring his presence before the Magistrate in a case instituted on a police report or otherwise, if it appears to the Magistrate that the offence allegedly committed by the accused is triable exclusively by a Court of Sessions, it shall commit the case to the Court of Sessions. The words, “if it appears to the Magistrate” found in Section 209 Cr.P.C indicate that the Magistrate has to apply it’s mind to the allegations in the final report to see whether an offence triable exclusively by Court of Sessions is incorporated in it or could be made out from the allegations. Therefore, the consideration of the court shall not be confined to the offences incorporated in the final report with specific reference to the number assigned to it in the Code, but also, those that could be made out from the accusations levelled against the accused in the final report. Going by the final report laid before Judicial First Class Magistrate Court-II it is found that Crl.A. No. 651 of 2017 -:21:- the allegations levelled against the accused were sufficient to attract an offence under Section 413 IPC also. True that the Magistrate failed to record so in it’s order of committal. Before the Court of Sessions whereto the case was committed, an application was filed by the prosecution with a prayer to incorporate Section 413 IPC. The court was pleased to allow the application and thus the offence under Section 413 IPC was also incorporated in the charge. Therefore, it can only be taken as an omission from the part of the Magistrate to record that in the procedings passed, while committing the case. Therefore, the Magistrate cannot be said to have acted without jurisdiction while committing the case. Therefore, what have been done by the Committal Court and the Court of Sessions are purely legal and there is no scope for a prejudice to arise for the accused in the matter. Therefore, committal proceedings can be treated as legal and valid. The argument advanced is only to be repelled for that reason and this Court do so. 35. According to the learned counsel, the offences under Sections 411 and 413 IPC are not liable to be tried together. Crl.A. No. 651 of 2017 -:22:- According to him only after trying the accused for an offence under Section 411 IPC and after finding him guilty for that offence and convicted, charge shall be framed afresh against the accused for the offence under Section 413 IPC and on the basis of the evidence available, the accused can be found guilty, convicted and sentenced for that offence. According to him the trial court has acted illegally while framing charge against the accused for an offence under Section 413 IPC alongwith other offences and trying the accused for that offence in the same trial. According to him, since the trial was held for all offences together, the trial faced by the accused is vitiated. 36. Judgments of various courts by which the accused was found guilty for an offence under Section 411 IPC and stood convicted and sentenced, were produced by the prosecution and marked in evidence as Ext.P19 series. 37. The learned counsel relied on **Uttom Koondoo and** **Ors. vs. The Empress [ILR Vol.VIII Calcutta 1882, page 635]** where the Calcutta High Court has observed :- “We may observe that the prisoners could not be tried at the same trial for receiving or Crl.A. No. 651 of 2017 -:23:- retaining (S.411) and habitually receiving or dealing in (S.413) stolen property, these two offences not being offences of the same kind (S.453, Code of Criminal Procedure). The proper course would have been to try the accused first for the offence under S.411, and then, if he were convicted, to try him for the offence under S.413, putting in as evidence the previous convictions under S.411, and proving the finding of the rest of the property in respect of which no separate charge, under S.411, could be made or tried by reason of the provisions of S.453, Code of Criminal Procedure. As, however, the punishment awarded under S.411 in our opinion, sufficient, it is unnecessary to proceed further under S.413.” 38. The learned Public Prosecutor has relied on **State of** ## **Rajasthan V. Waman Narayan Gheeya and Others** [2007 KHC 6609] where High Court of Rajasthan held: “26: The reason for inserting Section 413 by the legislature is clear from the language of the section. The legislature purposely enacted knowing it well that there is already S.411 in respect of offence of dishonestly receiving stolen property knowing it to be stolen. The legislature inserted S.413 in the Indian Penal Code Crl.A. No. 651 of 2017 ## -:24:- whereunder it is provided that if a person is habitually dealing in stolen property, he will be charged for offence under S.413, IPC. The terms of the provision make it clear that “habitually dealing” means there is evidence on record that there are other instances other than the present instance of the accused found to be indulging in the act and he is facing trial, then, it can be said that S.413, IPC is attracted.” 39. In the case referred above, a revision petition was filed seeking to quash the order discharging the accused under Section 413 IPC and to frame charge only against offences under Sections, 457, 380, 411 and 120 B IPC. 40. The observation made in **Uttom Koondoo** supra was also considered by the Court and held : “32. In this view of the matter, it can very well be said that at the time of framing charge, the learned trial Court, if evidence is on record with regard to number of cases pending or, in which the person accused is convicted, can frame charge for offence under S.413, IPC along with S.411, IPC; but, at the time of final adjudication, first of all, finding with regard to conviction for offence under S.411, IPC is required to be arrived at; and, thereafter, for the Crl.A. No. 651 of 2017 -:25:- purpose of convicting the accused for habitually dealing in stolen property, after recording finding of guilt sentence can be awarded under S.413, IPC on the basis of established habitually dealing in stolen property and the prosecution is required to prove the regular indulgence with regard to offence under S.411, IPC by way of producing the required evidence. Thus, at the stage of framing charge, it is not necessary that there must be conviction or finding against the accused for the purpose of framing charge under S.413. (emphasis supplied) 33. It may also be observed that charge can be amended at any stage of the trial and, if the list of cases which is filed along with the challen with regard to pendency of other cases of commission of offence under S.411, IPC is submitted by the investigating agency and out of which the accused person is convicted by a criminal Court in any of those cases, then obviously charge under S.413, IPC would be made out. In the present case, the non petitioner is facing trial for offence under S.413, IPC in two cases and in one case he was convicted by Judicial Magistrate, Bhanupura vide judgment dated 24-22006, therefore, there is sufficient material and, according to law also, the charge for offence under S.413, IPC is required to be framed against the accused non petitioners.” Crl.A. No. 651 of 2017 -:26:- 41. Accordingly, the order assailed there, whereby the accused stands discharged for the offence under Section 413 IPC was set aside and the trial court was directed also to frame charge for the offence under Section 413 IPC and to proceed with the case. 42. In the case on hand charge was framed for the offence under Section 413 IPC along with other offences. But, the offences other than one under Section 413 IPC was tried separately and the accused were found guilty for those. Thereafter, a fresh charge was framed and the question whether the accused was guilty of the offence under Section 413 IPC was adjudicated and a finding was arrived at on guilt of the accused for the offence relying on Ext.P19 series of judgments where the accused was already found guilty, convicted and sentenced for the offence under Section 411 IPC. 43. Only after arriving at a finding of guilt of the accused under Section 411 IPC that the trial court proceeded against him to find whether he is guilty of an offence under Section 413 IPC. Crl.A. No. 651 of 2017 -:27:- Based on a finding of guilt of the accused under Section 411 IPC in the case on hand and on the basis of Ext.P19 series of judgments where he stood convicted and sentenced for the offence, that the trial court found him guilty for the offence under Section 413 IPC and convicted and sentenced him. The trial court is perfectly justified in doing so. The entire arguments advaced by the learned counsel for the appellant being untenable, are discarded. Appeal fails for the reasons and is dismissed. The judgment assailed is confirmed. Sd/- **MARY JOSEPH JUDGE** ttb