State of Kerala v. Ajayakumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH FRIDAY, THE 26[TH] DAY OF AUGUST 2022 / 4TH BHADRA, 1944 CRL.A NO. 2097 OF 2006** **SC 157/2006 OF ADDITIONAL DISTRICT COURT (ADHOC), KOTTAYAM** ## **APPELLANT/ACCUSED:** AJAYAKUMAR AGED 1 YEARS S/O SREEDHARAN,VAZHAPPALLY COLONY, VIII WARD NO.I,, PADINJATTUMBHAGOM, VAZHAPPALLY VILLAGE,, CHANGANASSERY, KOTTAYAM. BY ADV SRI.M.J.THOMAS ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY ADV PUBLIC PROSECUTOR SRI DHEERENDRAKRISHNAN.K.K AMICUS CURIAE SMT T V NEEMA -SR PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 26.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl. A. No. 2097 of 2022 ..2.. ## **J U D G M E N T** This Criminal Appeal has been filed challenging the judgment of conviction and sentence in S.C. No. 157/2006 dated 06.10.2006 passed by the Additional Sessions Court (Adhoc)-I, Kottayam (for short, “the Court below”) 2. The Velloor police registered a crime as Crime No. 2/1996 five accused offence against persons, alleging punishable under Section 395 of the IPC. The allegation is that, on 04.01.1996 at about 9 p.m., at the HNL Convent Road in Kolathukuzhy Bhagom of Velloorkara in Velloor Village, the accused persons, five in numbers, wrongfully restrained CWs 1 & 2, assaulted them and snatched a handbag carried by CW 1 and committed robbery of Rs. 15,070/- kept therein. 3. After completing the investigation, the final report was filed against all the five accused persons under Section 395 of the IPC before the jurisdictional Magistrate. The learned Magistrate committed the case against the acused to the Court below. Crl. A. No. 2097 of 2022 **==> picture [19 x 9] intentionally omitted <==** 4. The accused Nos. 1, 2, and 3 alone faced trial that too in three different proceedings. The accused No. 1 faced trial in S.C. No. 39/2004. After trial, he was convicted and sentenced for the offence punishable under Section 395 of the IPC, which was later confirmed by this Court. The accused No.3 faced trial in S.C. No. 216/2005 and after trial, he was acquitted. There is no appeal and it has become final. The accused No. 4 is reported to be dead. The accused No. 5 is still absconding. 5. The accused No.2/appellant faced trial in S.C. No. 157/2006. He appeared at the Court below. The Court below framed charge against him under Section 395 of IPC, after hearing both sides. The charge was read over and explained to him and he pleaded not guilty. On the side of the prosecution, PWs 1 to 8 were examined, and Exts. P1 to P7 were marked. MO 1 was identified. After trial, the Court below found the appellant guilty under Section 395 of the IPC and he was convicted for the said offence. He was sentenced to undergo Crl. A. No. 2097 of 2022 **==> picture [19 x 9] intentionally omitted <==** rigorous imprisonment for 3 years and to pay a fine of Rs.5,000/-, in default, to suffer rigorous imprisonment for one year as per the impugned judgment. Challenging the said conviction and sentence, this appeal has been preferred. 6. When the appeal was listed for hearing before this Court continuously on several postings, there was no representation on the side of the appellant. Hence, this Court appointed Sri Sreekala C as Amicus Curiae on 17.01.2021. But, thereafter, Amicus Curiae also failed to appear at this Court. Hence, this Court appointed another Amicus Curiae, Sri. K K Dheerendrakrishnan to assist the Court as per the order dated 10[th] June, 2022. 7. I have heard Sri. K K Dheerendrakrishnan, the learned Amicus Curiae and Smt. T V Neema, the learned Senior Public Prosecutor. I place on record the appreciation for the valuable assistance rendered by Sri. K.K. Dheerendrakrishnan, the learned Amicus Curiae. 8. At the outset, the learned Amicus Curiae submitted Crl. A. No. 2097 of 2022 **==> picture [19 x 9] intentionally omitted <==** that the conviction under Section 395 of the IPC would not stand inasmuch as the 3[rd] accused has already been acquitted. The counsel further submitted that apart from the evidence of PWs 1 & 2, there is no independent evidence to support the prosecution version. The evidence let in by the prosecution with the aid of Section 27 of the Evidence Act cannot be extended to convict the appellant, argued the counsel. The learned Senior Public Prosecutor, Smt. T V Neema on the other hand submitted that the prosecution has succeeded to prove all the ingredients to attract the offence under Section 395 of the IPC and hence, the impugned judgment does not warrant any interference. 9. The prosecution mainly relied on the evidence of PWs 1 & 2 to prove the incident and to fix the culpability on the accused. PW1 is the de facto complainant. PW2, the brother of the de facto complainant was present along with PW1 at the time of the incident. PW1 deposed that, on 04.01.1996, he was returning home along with PW2, after Crl. A. No. 2097 of 2022 **==> picture [19 x 9] intentionally omitted <==** closing the shop and when he reached Kolathakuzhy Bhagom, he saw an autorickshaw stopped near the road, and immediately four persons came out of the autorickshaw and one among them, namely, Ullas brandished a sword stick on him which hit on his hand and the first accused snatched away the bag carried by him which contains Rs.15,070/-, a diary, five blank cheques and a key of the shop. He further deposed that, after snatching the bag, all of them entered back into the autorickshaw and left the place. Though he and PW2 chased the autorickshaw, they could not nab them. Thereafter, he went to Velloor police station and lodged Ext. P1 complaint. PW 2 also gave evidence in tune with the evidence tendered by PW1. Both, PWs 1 and 2 identified the accused at the Court below. MO 1 is the bag snatched from the possession of PW1. PW1 identified the bag as well. Even though PWs 1 and 2 were cross-examined at length, there is nothing in their crossexamination to discredit their testimony. They have given a reliable and consistent version of the crime. Their evidence Crl. A. No. 2097 of 2022 ..7.. inspires the confidence of the Court. Hence, I am of the view that the evidence of PWs 1 and 2 can safely be relied on to prove that the appellant along with three other persons snatched the bag containing cash from the possession of PW1. 10. The court below convicted the accused under Section 395 of the IPC. Section 395 of the IPC deals with punishment for dacoity. Section 391 of the IPC defines “dacoity” as:- _S.391. Dacoity.—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”._ Thus, it is necessary that five or more persons should conjointly commit a robbery in order to attract Section 395 of the IPC. Here, as stated already, the accused No. 3 was acquitted and the judgment of acquittal has become final. It is settled that when persons who conjointly committed robbery have been reduced to less than five by the acquittal of one or Crl. A. No. 2097 of 2022 **==> picture [19 x 9] intentionally omitted <==** more of the accused, the conviction under Section 395 of the IPC will not lie. The Supreme Court in **Om Prakash v. State of Rajasthan [AIR 1998 SC 1220]** has held that when two accused from among the five accused persons, who faced trial under Section 395 of the IPC were acquitted, it is not proper to convict the remaining three accused under Section 395 of the IPC. A single Bench of this Court in **Nisar v. State of Kerala [2020 (3) KHC 363]** has held that when three accused were acquitted from among the five accused who faced trial under Section 395 of the IPC, the remaining two cannot be convicted. The dictum laid in the above two cases squarely applies to the facts of this case. Here also, one among the five accused who have been charged with the offence under Section 395 of the IPC was acquitted. Hence, the conviction of the appellant under Section 395 of the IPC cannot be sustained. However, from the facts, I am of the view that the appellant can be convicted under Section 392 of the IPC. Section 392 of the IPC deals with the punishment for robbery. As stated already, Crl. A. No. 2097 of 2022 **==> picture [19 x 9] intentionally omitted <==** Section 391 of the IPC gets attracted when five or more persons conjointly commit or attempt to commit a robbery. When persons less than five commit robbery, they can very well be convicted under Section 392 of the IPC with the aid of Section 34 of the IPC. The evidence on record clearly shows that four persons, including the appellant/accused No. 1 came in an autorickshaw and accused No. 1 snatched the bag containing cash from the possession of PW1 and thereafter, all of them together left in the autorickshaw. Thus, common intention, on the part of the appellant, who accompanied accused Nos. 1 and 2 and others, is evident. In these circumstances, I am of the view that the prosecution has succeeded in proving that the appellant has committed the offence punishable under Section 392 of the IPC with the aid of Section 34 of the IPC. 11. The next question is sentence. The Court below sentenced the appellant to undergo rigorous imprisonment for three years and to pay a fine of Rs.5,000/- for the offence Crl. A. No. 2097 of 2022 **==> picture [25 x 9] intentionally omitted <==** punishable under Section 395 of the IPC. Since the conviction has been altered to Section 392 of the IPC, I am of the view that the sentence can be reduced to eighteen months. 12. In view of the above findings, the conviction of the appellant under Section 395 of the IPC vide the impugned judgment is hereby set aside. Instead, the appellant is convicted under Section 392 of the IPC. He is sentenced to undergo rigorous imprisonment for eighteen months and to pay a fine of Rs.5,000/-, in default, to suffer rigorous imprisonment for one year. On realization of the fine amount, Rs.3,000/- out of it shall be paid to PW1 as compensation. The appellant is entitled to set off in accordance with law. The Crl. Appeal is allowed in part, as above. Sd/- **DR.KAUSER EDAPPAGATH, JUDGE** RMV