HARSHAD Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellants in Crl.A 547/2011 are the accused Nos.1 and 3 in S.C 261/2010 of the Court of Session, Thrissur and the appellants in Crl.A No.307/2011 are the accused Nos.2 and 4 in the said case. The four appellants and another person by-name Sijesh @ Kannan, faced prosecution in the court below on the allegation that at about 1.30 a.m on 24.11.2009, at the compound of Uzhavathu Ayyappa Temple at Padakulam near Kodungallur, the five persons were found in suspicious circumstances, making preparation for committing dacoity. The offence was detected by the Circle Inspector of Police, Kodungallur during night patrol. He arrested the five persons on the spot and also seized some weapons from their possession. On the basis of the arrest, the Sub Inspector registered the crime under Section 399 I.P.C. After investigation, the Police submitted final report in court under Section 399 I.P.C. On committal, the case came up before the Court of Session, from where it was made over to the learned Additional Sessions Judge (Adhoc) I, Thrissur for trial and disposal.

(2.) The accused appeared before the trial court and pleaded not guilty to the charge framed against them under Section 402 I.P.C. Though the final report was filed under Section 399 I.P.C, the learned trial Judge, on a perusal of the materials, framed a charge under Section 402 I.P.C. The prosecution examined six witnesses including the Circle Inspector who detected the offence and proved Ext.P1 to P6 documents. The MO1 and MO2 weapons were also identified. When examined under Section 313 Cr.P.C, the accused denied the incriminating circumstances and projected a defence that they were arrested simply on the basis of some suspicion at about 1.30 a.m, and that they had not made any preparation for committing any sort of offence at the temple compound. The accused did not adduce any evidence in defence. On an appreciation of the evidence, the trial court found all the accused guilty. On conviction, they were sentenced to undergo rigorous imprisonment for four years and to pay a fine of 1000/- each by judgment dated 17.2.2011. The said judgment of conviction is under challenge in these appeals.

(3.) On hearing both sides, and on a perusal of the entire materials, I find that the conviction under Section 402 I.P.C is legally unsustainable. What is punishable under Section 402 I.P.C is being a member in a gang of five or more persons assembled for the purpose of committing dacoity. In this case, the five persons were found by the Circle Inspector at the temple compound. It has come out in evidence that the temple compound is far away from the public road or the national highway. It is not known what preparations could be made by the accused at the temple compound when the highway is far away from the compound. The Police submitted final report in this case under Section 399 I.P.C. What is punishable under Section 399 I.P.C is the act of making preparation for committing dacoity. The evidence given by the Circle Inspector shows that the five accused were arrested by him only because they were found in suspicious circumstances at the temple compound and he stated practically that the police party arrested the five persons just because they made an attempt to run off on seeing the Police party. Just because the persons tried to escape on seeing the Police party, or just because they were found at about 1.30 a.m in suspicious circumstances, it cannot at all be said that they were making preparations for committing the offence of dacoity there. This is not a case where the accused were found by the Police on the National Highway or on the public road at about 1.30 a.m. They all were found inside the temple compound, within compound walls. There was nobody else at the compound than these five accused. It is not known how the five accused could make preparation for committing dacoity in such a circumstance.