SELVARAJ Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellants stand convicted and sentenced for the offence punishable under Ss. 450, 325, 394 and 397 read the Sec. 34 of the Indian Penal Code, 1860 (IPC). The Additional Sessions Judge-II (Special), Kottayam has convicted and sentenced the appellants as per the judgment dtd. 28/5/2020. That judgment is under challenge in this appeal filed under Sec. 374(2) of the Code.

(2.) The case of the prosecution was the following:- At about 12.45 a.m. on 6/6/2017 the appellants along with another person entered inside the kitchen of the residential building bearing door No.XIX/187 of Ayarkunnam Panchayat by breaking open its door. Their common intention was to commit robbery. Hearing the sound, PWs.1 and 2, who are the husband and wife and occupants of that house, woke up and switched on the lights. When reached the kitchen, PW1 was attacked by the 2nd accused using a chopper. Although an injury resulted at his head, PW1 could grab the chopper. A struggle ensued and the 1st appellant, and also the third person with them kicked PW1 at the left side of his chest. He sustained fracture of ribs. Realising that the neighbours were coming to the place, one among the assailants snatched off the gold chain worn by PW2 and they left the scene.

(3.) The trial court held that the evidence of PWs.1 and 2 was convincing and that evidence was sufficient to prove beyond doubt that it was the 2nd appellant, who attacked PW1 using the chopper and the 1st appellant, who hit and kicked PW1. The trial court further held that there was yet another person along with the appellants and it was he who snatched away the chain of PW2. The prosecution could not apprehend him. The trial court was of the opinion that the lapse of the part of the prosecution to arrest the third one among the robbers and effect recovery of the stolen article did not affect credibility of PWs.1 and 2. It was further held that sustaining of grievous hurt by PW1 and the snatching of the gold chain were proved by the prosecution with the help of cogent evidence and the appellants were guilty. The appellants assail all the said findings as wrong and illegal.