DANY JONES Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITION under Section 482 of the Code of Criminal Procedure.

(2.) I have heard Advocate Sri. C.S. Manu, the learned Counsel appearing for the second petitioner and the learned Government Pleader. Perused the records including Annexure A2. Going by the allegations in Annexure I final report, I find that though four of the assailants could not be identified, prima facie there are sufficient averments to send the petitioners for trial for offence under Section 395 IPC. The persuasive argument that was advanced by the learned Counsel for the petitioner is that in the statement of the charge witness No. 1 and 2, there is no mention about the number of assailants and only the petitioners were identified. Therefore, according to the learned Counsel, there is nothing on record to show that five or more persons were involved so as to send the petitioners for trial for offence under Section 395 IPC. Going through the statement of the other witnesses, it appears that there are allegations that more than five persons were in the group. Therefore, I find that the learned Assistant Sessions Judge was justified in rejecting the plea for discharge. In the event, it is revealed in evidence that number of assailants is lesser than five, only robbery is made out. That is a matter to be decided after the trial and it is not possible to decide in a petition under Section 482 Cr. P.C. This petition is devoid of merits.