Murukan, Pandian, Mikhayel, Yasakki and Muthu v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 16TH FEBRUARY 2009 / 27TH MAGHA 1930 CRL.A.No. 2743 of 2008() -----------------------SC.562/2007 of II ADDL. ASSISTANT SESSIONS COURT, TRIVANDRUM .................... APPELLANT(S): ACCUSED 1 TO 5: ----------------------------- 1. MURUKAN, S/O.NATARAJAN, KARUMADI AMMAN THERUVU, M.G.R.NAGAR, PUTHUPETTA GRAMOM, THIRUNELVELI DISTRICT. 2. PANDIAN, S/O.SUBBAYYAN,KARUMADI AMMAN THERUVU, M.G.R.NAGAR, PUTHUPETTA GRAMOM, THIRUNELVELI DISTRICT. 3. MIKHAYEL, S/O.SUBRAMANIAN, KARUMADI AMMAN THERUVU, M.G.R.NAGAR, PUTHUPETTA GRAMOM, THIRUNELVELI DISTRICT. 4. YASAKKI, S/O.PANDIAN, KARUMADI AMMAN THERUVU, M.G.R.NAGAR, PUTHUPETTA GRAMOM, THIRUNELVELI DISTRICT. 5. MUTHU, S/O.SUBBAYYAN, KARUMADI AMMAN THERUVU, M.G.R.NAGAR, PUTHUPETTA GRAMOM, THIRUNELVELI DISTRICT. - BY ADV. SRI.M.RAJAGOPALAN NAIR SRI.S.JAYAPRAKASH (MADAVOOR) SRI.G.BIJU RESPONDENT(S): COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI C.M.KAMMAPPU. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ---------------------------------------------CRL.A. No.2743 of 2008 ---------------------------------------------Dated, 16[th] February 2009. ## JUDGMENT The appellants are the accused in S.C.No.562/2007 on the file of the court of Addl.Assistant Sessions Judge, Trivandrum. By the impugned judgment dated 14.10.2008, the accused/appellants are convicted under sections 395, 397, 398 and 399 of IPC and accordingly they were sentenced. It is the above sentence and conviction challenged in this appeal. 2. The prosecution case is that all the accused, with the intention to commit dacoity, trespassed into the house of PWs 1 and 2 namely, Varikkuzhy house at Thumpottuvilakom near Kulathoor S.N.M. Library at Kulathoor desom in Attipa village, at about 1.30 a.m. on 12.7.2005, and they broke open the single door fitted on the north wall of that house using force and they were armed with iron rods, torch etc wrongfully trespassed into the house. Hearing the noise, PWs 1 and 2 woke up and they were attacked with iron rod by Ist accused, and PW1 sustained injuries on his head. According to prosecution, 2[nd] accused lighted a torch to facilitate the offence and 3[rd] accused caught hold of gold chain worn by PW2 and attempted to snatch it away. 4[th] accused beat with an iron rod on the person of Crl.2743/08 ## **-:2:-** PW2 on her left hand and 5[th] accused was assisting the other accused in the commission of the offence of dacoity and thus they committed the said offences. 3. On the basis of the said incident, crime No.470/2005 was registered in the Kazhakkuttom police station for the offences punishable under sections 458, 511 of 380, 324 and 34 IPC. After the investigation, final report was field before the Judicial First Class Magistrate II, for the offence punishable under section 394 of IPC. On verification of the report filed by the police, according to the learned Magistrate, offences punishable under sections 395, 397, 398 and 399 of IPC are disclosed and accordingly, the learned Magistrate by exercising his jurisdiction under section 323 Cr.P.C committed the case to the Sessions Court from where the case was made over to the trial court for disposal. After hearing both the prosecution as well as the defence, a formal charge was framed against the accused under section 395, 397, 398 and 399 IPC and the same was read over and explained to the accused and they pleaded not guilty. Thereafter from the side of the prosecution, PWs 1 to 6 were examined and marked Exts.P1 to P4. When the accused were questioned under section 313 Cr.P.C., they denied all the incriminating circumstances. The trial court finally found that the accused are guilty of the charges Crl.2743/08 **-:3:-** and accordingly all the accused were sentenced to undergo rigorous imprisonment for 10 years under section 395 IPC. Under section 397, they were sentenced to undergo rigorous imprisonment for 5 years. Again, under section 398 IPC, they are directed to undergo rigorous imprisonment for 5 years. Under section 399 IPC, all of them were sentenced to undergo rigorous imprisonment for 10 years. All the sentences are directed to run concurrently. It is the above order of conviction and sentence challenged in this appeal. 4. I have heard the learned counsel appearing for the appellants and also the learned Public Prosecutor. 5. In order to substantiate the prosecution case, they relied upon the evidence of PWs 1 and 2. PW1 is a driver in the Tourism Department and he is residing along with his wife who is PW2. According to PW1, during the year 2005 there occurred a theft in his house and it was on 13.7.2005 at about 1.30 a.m. According to him he heard a noise from the back door of the house and he woke up. It is his further case that by that time, the accused entered the house by broke opening the back door and they lighted a powerful torch to his face. According to PW1, the persons so entered would come to 4 to 5 in number. Though PW1 attempted to make a protest, at that time one among the group beat on his head with the iron rod and Crl.2743/08 **-:4:-** seeing this incident PW2 wife of PW1 made alarm and according to the prosecution, the accused also attacked PW2 by beating on her left hand and they attempted to snatch away the gold chain from her neck. The gold chain broke off. The 'thali' part of the chain was in the hands of the culprits and the chain was in the hands of PW2. PW2 threw it beneath the cot. According to the witness, at that time the rest of the accused beat on various parts of the body of PW1. Thus PW1 sustained injuries on forehead, left knee, wrist etc. On hearing the shouting of PW2, neighbours also woke up and put on the light. Seeing the neighbours, the accused ran away from the spot. According to PW1, the size of the culprits entered in the house of Pws1 and 2 were having the size of the accused in the box. PW1 further claimed that the Kazhakkuttom police officials brought the accused for identification after 4 or 5 months from the date of the incident. PW1 categorically stated before the court below that since a powerful torch lighted to his face, he could not identify the accused. PW1 gave Ext.P1 First Information Statement regarding the incident and he had undergone treatment at Medical college Hospital, Thiruvananthapuram. 6. PW2 is the wife of PW1 and she also deposed in terms of PW1. PW2 says that the accused were armed with iron rod. She had also deposed that PW1 sustained injuries on Crl.2743/08 ## **-:5:-** his forehead. There were oozing of blood. PW2 stated that the culprits beat on her left wrist. According to her, one of the culprits caught hold of her gold chain and she herself attempted to ward off that attempt. The gold chain was broken. The 'thali' part happened to be in the hands of the accused and the gold chain was in the hands of PW2. PW2 deposed that she shouted and the neighbours woke up. PW2 stated that she does not remember the length of the iron rod. According to her, she identified the first accused Murukan as a person who arrived there and remained among the accused. PW2 also admitted that the accused were later brought from the police station and shown to her. According to her, PW1 was hospitalised. 6. According to the prosecution, PW3 the Head Constable attached to Kazhakkuttom police station on getting information went to the hospital and statement of PW 1 was recorded. Ext.P1 is the First Information so recorded. Ext.P1(a) is the body note of PW1. PW3, on the basis of F.I.Statemet recorded from PW1, registered Ext.P2 F.I.R. for the offence under sections 458 and 511 of 380, 324 and 34 of IPC. PW4 is the then Sub Inspector of police Kazhakkuttom police station who continued the investigation which was undertaken by CW5. Accordingly, PW4 inspected the scene of occurrence. The witness were questioned and prepared Ext.P3 scene Crl.2743/08 **-:6:-** mahazar. PW4 filed the report that the accused have committed the offences punishable under sections 394 IPC and deleted section 511 of 380. Ext.P4 is the report so filed by PW4. It is the further case of the prosecution that PW5, the S.I. of Police attached to Kazhakkuttom police station, during his investigation in crime No.82/2006 arrested the accused and on their arrest in that crime, the accused confessed regarding the commission of the offence in the present case. Thus accordingly, the accused were arrested in crime No.470/2005 and thus, according to the investigating agency, the accused were brought to the scene of occurrence and they were shown to the witnesses who identified accused Nos. 1, 2, 4 and 5. PW6 verified the investigation conducted by his predecessor and prepared charge sheet against the accused and produced the same before the court. On the basis of the above evidence, the trial court convicted the accused and imposed the above sentence. 7. The learned counsel appearing for the appellants vehemently argued that the prosecution has miserably failed to prove its case against the accused. The learned counsel pointed out that in order to attract Section 395 and 399 of IPC, the number of persons should be at least 5. But according to PWs 1 and 2, as they deposed, the number of persons were only 4 to 5. There is no Crl.2743/08 **-:7:-** positive evidence regarding the actual number of the assailants. The other point argued by the learned counsel is that the accused were not identified by the witnesses and the prosecution has miserably failed to establish the identity of the accused. It is also the case of the counsel that the prosecution did not produce the weapon alleged to have used by the accused during the commission of the offences. On the strength of the decision of this court reported in **Sharafu v. State of Kerala** (2007(3) KLT 112) wherein it is held that **“** a person cannot be convicted under S.398 unless he is armed with a deadly weapon while committing or attempting to commit robbery or dacoity”, the learned counsel submitted that as the prosecution has not produced the so called weapon, no offence will lie against the accused under sections 397 and 398 IPC. According to the learned counsel, the prosecution has miserably failed to identify the accused as to who possessed the weapon and inflicted the injury. In the absence of such evidence, none of the accused can be convicted for the said offence. According to the learned counsel, there is no recovery effected by the prosecution so as to connect the accused with the incident. The learned counsel pointed out that the prosecution has failed to produce the finger print evidence before the Crl.2743/08 **-:8:-** court to connect the accused with the said offence. Thus, according to the learned counsel, the essential ingredients of the offences alleged against the accused are not established by the prosecution by adducing cogent and convincing evidence and therefore, the finding arrived on by the court below is liable to be set aside. 8. Per contra, the learned Public Prosecutor submitted that the accused who are total strangers were trespassed into the bedroom of PWs 1 and 2, and that too, during the midnight and it was practically impossible to identify the culprits as there was no sufficient light. It is also the case of the learned Public Prosecutor that it is impossible to get independent witness to identify the accused at that time. The learned Public Prosecutor further submitted that after the arrest of the accused, they were brought to the scene of occurrence and they were identified as the accused. According to the Public Prosecutor, the said identification of the accused are sufficient and thus the prosecution has discharged its duty. It is also the case of the Public Prosecutor that though the accused ran away from the spot on seeing the neighbours coming to the spot, the investigating agency arrested the accused on the basis of the confession made by them when they were arrested in that crime. So according to the learned Public Prosecutor, the police has established the link of the accused with Crl.2743/08 ## **-:9:-** the alleged incident and the trial court has convicted them on appreciation of the above evidence. Therefore, the learned Public Prosecutor submitted that no interference is called for. 9. I have carefully considered the contentions advanced by the learned counsel for the appellants as well as the learned Public Prosecutor and also perused the judgment and the evidence and materials on record. As indicated earlier, the prosecution mainly depends on the evidence of PWs 1 and 2 to establish its case. But when PWs 1 and 2 were examined in the court, they miserably failed to identify the accused and also the role played by each of the accused. There is no evidence as to who possess the alleged weapon and who inflicted the injury upon PWs 1 and 2. Absolutely there is no evidence on these aspects. PWs 1 and 2 were also unable to account the number of persons involved in the alleged commission of the offence. When PW2 stated that the culprits were only 4 in numbers, PW1 stated that 4 to 5 persons were involved. But regarding the correct number of persons involved, there is no positive and reliable evidence. The prosecution has also miserably failed to recover the alleged weapon used in the commission of the offence. Though PWs1 and 2 have stated that the injury was inflicted by using iron rod, there is no description at all. Police did not make any effort Crl.2743/08 **-:10:-** to recover the weapon used by the accused even though the accused were arrested and questioned. This Court in the decision **Sharafu v. State of Kerala** (2007(3) KLT 112) (cited supra) held that a person cannot be convicted under Section 398 unless he is armed with a deadly weapon while committing or attempting to commit robbery or dacoity. But in the present case, no weapon was recovered and produced so as to substantiate the prosecution allegation. Therefore in the absence of such vital and material object, no offence under sections 397 and 398 will be attracted against the accused. In the absence of positive evidence regarding the number of culprits involved in the commission of the offences, Sections 395 and 399 also will not be attracted. The prosecution has miserably failed to produce at least the finger prints evidence to connect the accused for their presence in the house of PWs 1 and 2 so as to attract the allegations against the accused. It is borne out from the records that the investigating agency has taken a finger print from the place of occurrence, but no further evidence was adduced before the court during the time of the trial of the case. Thus it can be seen that the nature of evidence adduced by the prosecution is too shabby and no court of law can place reliance on such evidence. The prosecution has miserably Crl.2743/08 ## **-:11:-** failed to adduce cogent and circumstantial evidence so as to attract the essential ingredients of the sections of offences alleged against the accused. Therefore, the accused are entitled to get the benefit of doubt. Consequently, their conviction is liable to be set aside. In the result, the conviction of the appellants/accused under sections 395, 397, 398 and 399 are set aside and they are acquitted of the said offences. As the appellants/accused are acquitted of the charges levelled against them, bail bond, if any, executed by them will stand cancelled. The appeal is allowed. ## **V.K.MOHANAN, JUDGE** kvm/- Crl.2743/08 **-:12:-**