KILIMANNI ABU Vs. STATE OF KERALA

JUDGEMENT

(1.) THESE three appeals arise out of the judgment of the learned Sessions Judge of Kozhi-kode in Sessions Case 84 of 1962. Criminal Appeal 117 of 1963 is by the first accused; criminal appeal 103 of 1963 is by the second accused and criminal appeal 105 of 1963 is by accused 3, 4 and 5. Accused 1 to 5 were convicted each under Section 120-B (1), I. P. C,, criminal conspiracy to commit robbery, but no separate sentence was awarded. Accused 3 to 5 were convicted under Section 392 and sentenced each to undergo rigorous imprisonment for 8 years. Accused 1 and 2 were convicted for abetment of forgery under Section 392 read with Section 120-B (1), I. P. C. , and sentenced each to undergo rigorous imprisonment for 8 years. In addition accused 3 to 5 were also convicted and sentenced each to undergo rigorous imprisonment for two years and one year respectively under Section 461 read with Section 34, I. P. C. , and under Section 342 read with Section 34, I. P. C. Accused 1 and 2 were alternatively charged under Section 411, I. P. C. , and the learned Sessions Judge found that they were liable under the section, but since they were convicted and sentenced for the major offence no conviction was recorded under Section 411, I. P. C.

(2.) THE case against the accused was that they along with the absconding accused Moideen and the approver P. W. 1 conspired to commit dacoity in the house of P. W. 5 and in pursuance of the conspiracy they did commit offences under Sections 392, 461 and 342, I. P. C. The first accused and the absconding accused Moideen are brothers and living together in one and the same house in Kodoor. The first accused is a police constable under suspension. The second accused is a resident of Kodoor. The third accused is a small trader in Calicut. The fourth accused is the brother of the fifth accused's father. They are both goldsmiths living near each other in Irirnpuzhi at some distance from Chemmankadavu bazaar in Kodoor.

(3.) P. W. 5 is a fairly rich man owning extensive cocoanut and arecanut gardens and was living with his old mother in a house by the side of a hillock to the northeast of Thannikkal bazaar. At the time of the occurrence his wife had gone to her house for confinement. The approver P. W. 1 runs a barber shop and was a frequent visitor to P. W. 5's house. On 2-10-62 P. W. 5 had gone to Perintalmanna to meet his vakil's clerk to prepare certain returns and came back home by about 7. 30 p. m. Because she was alone P. W. 5's mother who is a paralytic patient had sent for the daughters of P. W. 5's brother for her help and they were in the house on that day. According to P. W. 5 he is not sure whether the doors had been bolted and fastened by his nieces. He had asked them to bolt the door and they had informed him that they had done so. He had locked the Pathayam (wooden box) where he was keeping his valuables and had kept the keys in the wall almirah in the main room. After taking food at about 10-30 p. m. they all went to bed. P. W. 5 had about Rs. 50/-in currency notes kept in the pocket of his belt. He had also placed his wrist-watch on the window sill near the place where he slept.