Mohanan @ Motor and Sukumaran @ Suku v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930** **CRL.REV.PET.NO. 28 OF 2001()** **----------------------------------------** **CRA.140/1995 OF ADDL.SESSIONS COURT, KOTTAYAM SC.4/1995 OF ASSISTANT SESSIONS COURT, PALA** **....................** ## **REVN. PETITIONER(S) - APPELLANTS - ACCUSED 5 & 7:** **----------------------------------------------------------------------** **1. MOHANAN @ MOTOR S/O. VELAYUDHAN, THAIPARAMBIL HOUSE, PATHAMPUZHA, POONJAR, THEKKEKARA, MEENACHIL, KOTTAYAM.** **2. SUKUMARAN @ SUKU, S/O. KOCHERUKKAN, MURINGAYIL HOUSE, MURINGAPPURAM BHAGAM, DO. DO. DO.** **BY ADV. SRI.M.J.THOMAS** ## **RESPONDENT(S) - RESPONDENT - COMPLAINANT:** **-------------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, ERATTUPETTA THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** ## **BY PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/10/2008 ALONG WITH CRRP NO. 1113 OF 2000 THE COURT ON 13.11.2008 PASSED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** = = = = = = = = = = = = = = = = = = = = = = = = **CRL.R.P. No. 1113 of 2000 & CRL. R.P. No.28 of 2001** = = = = = = = = = = = = = == = = = = = = = = = = = **Dated this the 13th day of November, 2008** ## **O R D E R** -------------- Accused challenge the concurrent finding entered by the courts below, their conviction and sentence for the offence punishable under Section 395 of the Indian Penal Code (for short, “the Code”). Accused 1, 2, 4 and 6 filed Crl.R.P. No.1113 of 2000 while accused 5 and 7 filed Crl.R.P. No.28 of 2001. 2. These accused along with the third accused faced trial in the Assistant Session’s Court, Pala in S.C.No.4 of 1995 for the offence punishable under Section 395 of the Code. Charge is that on 27.3.1991 at about 1.30 p.m. the accused committed dacoity by extorting Rs.3,000/- from P.W.1. Learned Sessions Judge on evidence found that these accused committed the offence and sentenced them to undergo rigorous imprisonment for 5 years each. These accused preferred appeals before the Sessions Court. Learned Additional Sessions Judge confirmed the conviction and sentence. Hence these revisions. ## **CRL. R.P. Nos.1113/2000 & 28/2001** ## **-: 2 :-** 3. Learned counsel for the revision petitioners contended that evidence of P.Ws.1 to 4 is quite unreliable. According to the learned counsel, version of P.W.1 is quite improbable. It is quite unlikely that an incident as spoken by them would have occurred in clear day light at the alleged place of occurrence. It is contended that at any rate, offence under Section 395 of the Code is not attracted. Learned counsel relied on the decision in **Vishnu Shiv Ram Bhoir v. State of Maharashtra** (1979 SCC (Crl.) 642). Learned Public Prosecutor contended that there is no reason to interfere with the concurrent finding entered by the courts below. 4. It is alleged that P.W.1 was carrying teak logs belonging to P.W.5 in a mini lorry and at the place of incident, these accused along with the third accused blocked the lorry under threat to the life of P.W.1 and extorted a sum of Rs.3,000/- from him. P.W.1 gave evidence supporting the prosecution. He claimed that the 4[th] accused wielded knife and threatened to kill him. Under threat, he gave Rs.3,000/- to the accused. P.Ws.2 and 3 are said to be workers and claimed to have been in the lorry at the relevant time. They also gave similar evidence. P.W.4 is residing about 100 metres away from the scene of occurrence. Though he did not support the prosecution fully, ## **CRL. R.P. Nos.1113/2000 & 28/2001** ## **-: 3 :-** he claimed to have seen the accused standing in front of the lorry carrying stones. He also stated that the first accused asked for money from P.W.1 and at that time, P.W.1 was in a frightful condition. P.W.5 is the owner of the lorry for whom the teak logs were transported on the relevant day. Next day morning, P.W.1 told him about the incident. He directed P.W.1 to inform the incident to the police. P.W.9 was examined to prove that timber logs were transported in the lorry with permit from the forest department. P.W.13 is an attester in Exhibit P9 mahazar for M.O.1 knife. He claimed that on 18.4.1991 M.O.1 was seized from the 4[th] accused. P.W.15 claimed to have arrested accused Nos.4 and 5 on 18.4.1991 and seized M.O.1 from the 4[th] accused as per Exhibit P9. Exhibit P11 is the mahazar for the place of occurrence. 5. Learned counsel for the accused contended that the alleged incident occurred near a bus stop, so many houses are nearby and that it is unlikely that as spoken by P.W.4 the incident would have occurred in the day light. 6. Evidence of P.W.7 would show that there is no such bus stop on the road in question. It is true that Exhibit P11 shows a few houses beyond 60 metres from the place of occurrence. But it is seen ## **CRL. R.P. Nos.1113/2000 & 28/2001** ## **-: 4 :-** from Exhibit P11 that on either side of the road it is extensive rubber plantation. Moreover, P.W.4 is a neighbour and though he did not fully support the prosecution claimed to have seen these accused and the third accused standing in front of the lorry carrying stones. Therefore it is not as if none from the locality has given evidence for the prosecution. 7. It is then contended that going by the version of P.W.1, he had been to the mill of P.W.5 to unload teak logs immediately after the incident going along the side of police station but did not inform the incident to the police then. Explanation for that is given by P.Ws.1 and 5. According to P.W.1, he wanted to inform P.W.5 about the incident and when he reached the mill, P.W.5 was not available. Hence he did not then inform the police about the incident. P.W.1 met P.W.5 the next day morning and the latter directed the former to inform the police. P.W.1 being an employee of P.W.5, it is natural that he wanted to inform his employer about the incident first and get a direction whether the matter is to be reported to the police. On going through the evidence let in by the prosecution I find no reason to interfere with the concurrent finding entered by the courts below that the incident occurred as alleged. ## **CRL. R.P. Nos.1113/2000 & 28/2001** ## **-: 5 :-** 8. Then the next question is whether the offence under Section 395 of the Code is attracted. Argument of the learned counsel is that there is no case or evidence that P.W.1 sustained injury and hence Section 395 of the Code has no application. 9. Section 391 of the Code defines ‘dacoity’. It refers to robbery being committed or attempted to be committed by five or more persons conjointly. ‘Robbery’ is defined in Section 390 of the Code. It states when theft and extortion amount to '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 extortion by putting that person in fear of instant death or instant hurt, or 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. In this case according to P.Ws.1 to 3 the accused threatened to kill P.W.1, 4[th] accused wielded the knife and so putting P.W.1 in fear, induced him to deliver Rs.3,000/-. 10. In the decision relied by the learned counsel, Apex Court observed that the entire case rests on the evidence of P.W. Yakoob whose evidence is sought to be corroborated by his brother, Haji. ## **CRL. R.P. Nos.1113/2000 & 28/2001** ## **-: 6 :-** There was no allegation of the fact of any property having been looted by the accused in the evidence of Yakub. Substantive evidence of Yakub did not at all refer to the allegations that the accused persons had looted away the articles or movables of the victims though Yakub had stated that the accused surrounded him and extorted a sum of Rs.300/- as price for sparing them. It is seen from the judgment of the Additional Sessions Judge that the said decision was referred to and considered. Learned Additional Sessions Judge observed that facts of the case reported is not clear from the judgment and therefore based on that decision it is not possible to say that no offence under Section 395 of the Code is made out. Reading the provisions above it is clear that it is not necessary that injury must have been inflicted on P.W.1 to make it an offence of dacoity. As such, that contention cannot be sustained. There is no reason to interfere the conviction of the accused. 11. Learned counsel contended that leniency may be shown to the accused in the matter of sentence. He submitted that the incident occurred 17 years back and according to the learned counsel, it appears that there was some dispute between the accused and P.W.5 regarding transportation of timber logs which according to the accused ## **CRL. R.P. Nos.1113/2000 & 28/2001** ## **-: 7 :-** was unauthorised. Learned counsel submitted that these accused are not involved in any other case. 12. Even if it is assumed that timber logs were being unauthorisedly transported by P.Ws.1 and 5, that is no justification for the offence committed by the accused. However, I am inclined to take into consideration that 17 years have elapsed since the commission of the offence and these accused are not involved in any other offence. Hence simple imprisonment for six months each and fine of Rs.1,000/- each will be sufficient in the ends of justice. Resultantly, this revision petition is allowed in part in the following lines. (a) Sentence imposed on the revision petitioners-accused A1, A2 and A4 to A7 is modified as simple imprisonment for six months each and fine of Rs.1,000/- (Rupees One thousand only) each and in default of payment, to undergo simple imprisonment for one month each. (b) Out of the fine if realised, Rs.3,000/- (Rupees Three thousand only) shall ## **CRL. R.P. Nos.1113/2000 & 28/2001** ## **-: 8 :-** be paid to P.W.1 as compensation. Bail bonds shall stand cancelled. Criminal Miscellaneous Petition Nos.5869 of 2000 and 105 of 2001 shall stand dismissed. **THOMAS P.JOSEPH, JUDGE.** vsv **CRL. R.P. Nos.1113/2000 & 28/2001** ## **-: 9 :-** **THOMAS P.JOSEPH, J. =================== CRL.R.P. NO.1113 OF 2000 & CRL.R.P. NO. 28 OF 2001 ===================** **O R D E R** **13TH NOVEMBER, 2008**