AJITH Vs. STATE OF KERALA

JUDGEMENT

(1.) As the above two appeals are arising out of the same judgment and the facts and circumstances as well as the question of law involved are identical, these two appeals are heard together and being disposed of by this common judgment. The judgment, under challenge in these appeals, is dated 27/08/2011 in S.C. No. 468 of 2009 of the court of Sessions, Thalassery, in which, the prosecution, laid charge against altogether five accused for the offences punishable under Sections 392, 398 read with Section 34 and 414 of the I.P.C., among which A5 was absconding and out of 4 accused, who faced the prosecution, A4 is acquitted of all the charges. A1 to A3 are found guilty under Sections 392 and 398 of I.P.C. But they are acquitted for the offence under Section 414 and 34 of the I.P.C. Thus challenging the conviction and sentence imposed against A3, he preferred Crl.A. No. 1922 of 2011, whereas Crl.A. No. 207 of 2012 is preferred by the first accused. Suffice to say, A2 in the above case has not chosen to file an appeal, challenging his conviction and the sentence.

(2.) The prosecution case is that on 06/03/2009 at 5.30 a.m., near the third platform of Kannur Railway Station, at a trolley path, the accused A1 to A4 committed robbery of a chain worn by PW. 1 and while committing robbery they voluntarily caused hurt to PW. 1 and the further case of the prosecution is that the 5th accused assisted A1 to A4 in concealing the stolen chain. On the basis of the above allegation, Crime No. 5 of 2009 was registered in the Railway Police Station, Kannur against the accused 5 in numbers for the offences punishable under Sections 392, 398 read with Section 34 of the I.P.C. and Section 414 of I.P.C. On completing the investigation, charge was laid before the Judicial First Class Magistrate-II, Kannur where C.P. No. 31 of 2009 was instituted and by order dated 22/09/2009 of the learned Magistrate in the above proceedings, the case was committed to the Sessions Court, where S.C. No. 468 of 2009 was instituted and subsequently made over to the present trial court for disposal,

(3.) A1 to A4 were arrested and produced before the court and A5 appeared before the court and thus in the presence of all the accused, a formal charge was framed against them for the offence punishable under Sections 392, 398 read with Section 34 and 414 of I.P.C., after hearing the prosecution as well as the defence. When the said charge was read over and explained to the accused, they denied the same and pleaded not guilty and thus the prosecution adduced its evidence by examining PWs. 1 to 14 and producing Exts. P1 to P15 documents. MOs. I to V are marked and identified as material objects. When the prosecution evidence was over, the court below proceeded to examine the accused under Section 313 of Cr.P.C. But during that time, A5 was not available and the other accused denied the evidence and circumstances, when the same was put to the accused which brought during the prosecution evidence. No evidence either oral or documentary were adduced from the side of the defence. After having considered the evidence and materials on record, the learned Judge of the trial court is of the opinion that the prosecution has proved that A1 and A2 committed robbery and while committing so, they carried the deadly weapon like knife and thus the learned Judge has concluded that A1 to A3 have committed the offences punishable under Sections 392 and 398 of the I.P.C. whose identity is proved. According to the learned Judge, the prosecution has not proved the identity of A4 and therefore he is entitled to get an acquittal. Thus, while acquitting A4 under Section 235(1) of Cr.P.C., A1 to A3 are convicted for the offence under Sections 392 and 398 of I.P.C. On such conviction, A1 to A3 have been sentenced to undergo rigorous imprisonment for seven years each under Sections 392 and 398 of the I.P.C. and they are also sentenced to pay a fine of Rs. 20,000/- each under Section 392 of I.P.C. It is also directed that from the fine amount, if the same is realised, a sum of Rs. 25,000/-, shall be paid to PW. 1, being the victim, as compensation. In default of payment of fine, A1 to A3 are directed to undergo rigorous imprisonment for one year each. Set off is allowed for the period they have already undergone as under trial prisoners.