Kerala High Court
Sreenesh, S/O. Lohidakshan vs State Of Kerala on 8 April, 2025
Crl.A.No.1850 of 2006
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 8TH DAY OF APRIL 2025 / 18TH CHAITHRA, 1947
CRL.A NO. 1850 OF 2006
AGAINST THE JUDGMENT DATED 16.09.2006 IN SC NO.349 OF
2004 ON THE FILE OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE
(ADHOC-II), ERNAKULAM.
APPELLANTS/ACCUSED 1,2,3 & 4:
1 SREENESH, S/O. LOHIDAKSHAN,
PALACKAPARAMBIL VEEDU,
PADIVATTOM KARA, EDAPPALLY,
SOUTH VILLAGE.
2 VARGHESE @ KUNJUMON,
PALLITHARA VEEDU, NETHAJI ROAD,
MAMANGALAM KARA,
EDAPPALLY NORTH VILLAGE.
3 SUNIL @ SUNI, S/O.PAPPACHAN,
KANNIVEEDU, ANAMUKKU BHAGOM,
THUTHIYUR KARA,
KAKKANAD VILLAGE.
4 ANEESH JOSEPH @ ANEESH,
S/O.ANTONY, PUTHALATH VEEDU,
MANGATTU BHAGOM,
KAKKANAD VILLAGE.
BY ADV. SRUTHY N.BHAT, STATE BRIEF
Crl.A.No.1850 of 2006
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RESPONDENT/COMPLAINANT:
STATE OF KERALA,
(REP. BY STATION HOUSE OFFICER,
KALAMASSERY POLICE STATION- CRIME NO.
418/2003 OF KALAMASSERY POLICE STATION),
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV SHEEBA THOMAS, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
02.04.2025, THE COURT ON 08.04.2025 DELIVERED THE FOLLOWING:
Crl.A.No.1850 of 2006
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C.S.SUDHA, J.
---------------------------------------------
Crl.Appeal No.1850 of 2006
---------------------------------------------
Dated this the 8th day of April 2025
JUDGMENT
In this appeal filed under Section 374 (2) Cr.P.C., the
appellants, who are accused 1 to 4 in S.C.No.349/2004 on the file of
the Court of Session, Ernakulam, challenge the conviction entered
and sentence passed against them for the offences punishable under
Section 397 read with Section 395 and Section 412 IPC.
2. The prosecution case is that on 18/11/2003 at about
02:30 a.m. the accused persons eight in number waylaid the mini
lorry bearing registration no.KL-Z/E-8442 driven by PW1 at
Edappally in the National Highway bypass road and forcibly took
away ₹51,000/-. PW1 was proceeding to Manjeri for purchasing
plantains. The accused persons who arrived in a car were armed with
weapons like sword sticks. They caused damage to the lorry, entered
into the cabin of the lorry from either side and pulled down PW1 as
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well as PW2, the cleaner of the lorry and by threatening PW1 stole
₹50,000/- kept in the dashboard of the lorry and also ₹1,000/- from
the pocket of PW1. Hence, the accused persons, as per the charge
sheet, were alleged to have committed the offence punishable under
Section 397 IPC.
3. Crime no.418/2003, Kalamassery police station,
that is, Ext.P1(a) FIR was registered by PW13, the then Sub
Inspector, Kalamassery police station, based on Ext.P1 FIS of PW1.
PW13 conducted investigation for a day and thereafter investigation
was taken over by PW14, Circle Inspector, Kalamassery police
station, who on completion of investigation submitted the final report
before the court alleging the commission of the offence punishable
under the aforementioned Section.
4. On appearance of all the accused persons, the
jurisdictional magistrate after complying with all the necessary
formalities contemplated under Section 209 Cr.P.C. committed the
case to the Court of Session, Ernakulam. The case was taken on file
as S.C.No.349/2004 and thereafter made over to the Additional
Sessions Judge (Adhoc-II), Ernakulam for trial and disposal. The trial
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court after hearing both sides, framed a charge under Section 395 read
with Section 397 IPC, which was read over and explained to the
accused persons to which they pleaded not guilty.
5. On behalf of the prosecution, PW1 to PW14 were
examined and Exts.P1 to P23 and MO.1 to MO.7 series were marked
in support of the case. After the close of the prosecution evidence, the
accused persons were questioned under Section 313(1)(b) Cr.P.C.
with regard to the incriminating circumstances appearing against
them in the evidence of the prosecution. The accused persons denied
those circumstances and maintained their innocence.
6. As the trial court did not find it a fit case to acquit
the accused persons under Section 232 Cr.P.C., they were asked to
enter on their defence and adduce evidence in support thereof. DW1
was examined on behalf of the accused persons. No documentary
evidence was adduced by the accused persons.
7. On consideration of the oral and documentary
evidence and after hearing both sides, the trial court by the impugned
judgment found no evidence to find accused 5 to 8 (A5 to A8) guilty
of the offence alleged against them and hence acquitted them under
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Section 235(1) Cr.P.C. However, accused 1 to 3 (A1 to A3) have
been found guilty of the offence punishable under Section 397 read
with Section 395 IPC and hence they have been sentenced to rigorous
imprisonment for seven years each and to a fine of ₹10,000/- each and
in default of payment of fine, to undergo rigorous imprisonment for a
period of six months each. The 4th accused (A4) has been found
guilty of the offence punishable under Section 412 IPC and hence has
been sentenced to rigorous imprisonment for seven years and to a fine
of ₹10,000/- and in default to rigorous imprisonment for a period of
six months. Set off under Section 428 Cr.P.C. for the period from
23/11/2003 to 4/3/2004 has been allowed. Aggrieved, A1 to A4 have
come up in appeal.
8. The only point that arises for consideration in this
appeal is whether the conviction entered and sentence passed against
A1 to A4/appellants by the trial court are sustainable or not.
9. Appellants 1 and 3/A1 and A3 were reported dead
as early as on 15/11/2021. None of their legal representatives have
come forward to prosecute the appeal. However, as the sentence
imposed include fine also, the appeal does not abate. As there was no
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representation for the appellants, advocate Sruthy Bhat was appointed
as State Brief. Heard both sides.
10. It was submitted by the learned counsel for the
appellants/A1 to A4 that PW1 and PW2 had identified only three
persons involved in the crime, that is, A1 to A3. Though PW1 and
PW2 have a case that they were beaten up by the assailants, no
injuries were seen though they were examined by the doctor within
hours of the incident. PW1 and PW2 have no prior acquaintance with
any of the accused persons. However, no Test Identification Parade
(TIP) was conducted by the investigating officer. Therefore,
identification of the accused persons is doubtful because the incident
took place at 02:30 a.m. Even going by the testimony of PW1 and
PW2, the assailants immediately after jumping out of the car, broke
the headlights of the lorry and smashed the windshield. There was no
other source of light available at the place of occurrence. Hence, there
was no possibility or chance of PW1 and PW2 identifying their
assailants. A4 has been found guilty of the offence punishable under
Section 412 IPC. However, no charge was framed by the trial court
for the said offence. Section 412 IPC is not a minor offence when
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compared to the offence under Section 395 or 397 IPC. There is no
evidence to show that the money that was stolen from PW1 was the
money alleged to have been recovered from A4. Shaukath Ali the
owner, who is alleged to have given money to PW1 to buy plantains
was never examined. Further, the trial court found the accused
persons guilty of the offence punishable under Section 397 IPC. As
per Section 395, the offence of dacoity would be made out only when
five or more persons are involved. Here going by the testimony of
PW1 and PW2, there were only three persons involved. Hence the
trial court went wrong in convicting the accused for the offence of
dacoity, goes the argument.
10.1. Per contra, it was submitted by the learned Public
Prosecutor that to make out the offence of dacoity it is not necessary
that five persons should be convicted. It is sufficient, if participation
of five people in the crime is shown by the prosecution. PW1 and
PW2 have spoken about the presence of seven persons who had
waylaid and robbed them. It is true that they could not identify all the
accused persons. But that would not go against the prosecution case
because they have spoken about the presence of more than five
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persons at the scene. Though TIP was not conducted, the witnesses
did have sufficient time to see the accused persons and therefore there
is no infirmity in the identification done by PW1 and PW2 in the box.
There is no infirmity in the findings of the trial court calling for an
interference by this Court, argued the prosecutor.
11. I briefly refer to the oral and documentary evidence
relied on by the prosecution in support of the case. Ext.P1 FIS of
PW1 is seen recorded on 18/11/2003 at 04:00 a.m. PW1, a tempo
driver has stated thus in Ext.P1 FIS: on 18/11/2003 he along with
PW2 were on their way to Manjeri to buy plantains for their employer
Shaukath. They started their journey with the money given by their
employer at 11:00 p.m. from Parakote. When they reached near the
Kurisupally at Edappally, a Maruti car driven in great speed overtook
them and stopped in front of the lorry. When he pressed on the
accelerator and tried to move forward, the car went further ahead and
stopped abruptly near Kurisupally. The four doors of the car opened
and seven people with sword sticks jumped out of the car and got into
the cabin of the lorry from both sides. As soon as the assailants came
out of the car, they smashed the windshield. Shards of glass fell on
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his face and body. Both of them were trembling with fear. One of the
persons in the group saying that he would kill them swung the sword
and tried to hack/cut, which he warded off with a mat. He and PW2
were pulled out of the lorry. ₹50,000/- which was kept in the
dashboard of the lorry was taken away by the robbers. They also beat
him and PW2. One of the robbers also snatched away ₹1,000/- and
his driving license from his pocket. The assailants were shouting
loudly that they would kill them. Thereafter, the assailants drove
away in their green Maruti car bearing registration no.KR B 7999.
One of the assailants was not wearing a shirt. All the others were
wearing shirt and pants. The assailants were young men aged between
20 to 28 years. Three of them were fair in complexion, lean and tall.
The remaining four were dark in complexion, short in stature and
stout. He can identify the assailants on sight. He had pain all over his
body as he was beaten up. There was street light at the place of
occurrence in which light he could see the assailants. PW2 was also
beaten up. The incident as per Ext.P1 FIS took place on 18/11/2003 at
02:30 a.m.
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11.1. PW1 in the box stands by his case narrated in
Ext.P1 FIS. He identified A1 as the person who had taken the amount
of ₹50,000/- from the dash of the lorry and also ₹1,000/- from his
pocket. He deposed that he had identified A1, A3 and others before
the police. However, he was able to identify only A1 and A2 before
the court. PW1 identified MO.1 series as the four sword sticks in the
hands of the accused persons. The total amount taken away by the
robbers was ₹51,000/-. The said amount was in different
denominations of ₹500, ₹100, ₹50, ₹20, ₹10 etc. The police recovered
₹30,710/-, which he obtained from the court. In the cross examination
PW1 deposed that when the money was given by his employer, he
had not counted it. But it was written on the bundle that it was
₹50,000/-. Thereafter, he deposed that it was after counting the notes
he had wrapped the same. PW1 admitted that he had stated to the
police that the accused had come in a green Maruti car bearing
registration no.KL V 7199. According to him, the said statement was
given at a time when he was quite stressed out due to the loss of
money. Actually the accused had come in a UNO car bearing
registration no.KL.5G.7639. No injury was caused to him when the
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shards of glass fell on him. He was beaten and fisted by the robbers.
The mat with which he had warded off the attack by a sword stick
was torn. He did not produce the said mat before the police. PW1
also deposed that two of the accused persons had held him at sword
point when they took the money from the dashboard. He denied
having stated to the police that the accused persons had pulled him
out of the lorry and thrown him out. PW2 was thrown out of the lorry.
PW1 did not have anything to say when his attention was drawn to
the absence of any such statement to the police. According to PW1 he
was beaten on his back and kicked. In the hustle and bustle, he could
only notice two of the accused persons and not the others.
Immediately after the incident, he along with PW2 went to the traffic
police station to report the crime. Thereafter, they went to
Kalamassery police station.
11.2. PW2 supports the prosecution case. According to
him, he had identified four accused persons before the police. PW2
identified A1 and A3 in the box. He deposed that it was difficult for
him to identify the other persons involved in the crime. He also
identified MO.1 and MO.2 series. In the cross examination he
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deposed that the amount of ₹50,000/- was in the denominations of
₹1000/-, ₹500/-, ₹100, ₹20/-, ₹10/- etc. He does not remember
whether he had stated the denominations to the police. The accused
persons had tried to hack him from outside the lorry, but the cut hit
the lorry. He was pulled out from the vehicle and put outside. He ran
to the side of the lorry and so he was unable to see what exactly
happened inside the lorry.
11.3. PW4 a taxi driver deposed that on 23/11/2003 four
people had hired his taxi bearing registration no.KL 7 K 7552 to go
from Kakkanad to Thrippunithura. When they reached near
Thrippunithura he heard them talking on their mobile phone. He was
then asked to go to Palarivattom. On seeing a youngster standing in
front of the K.R. Bakery, he was asked to stop the car. When he
stopped the car, two of the passengers got out and tried to pull the
youngster into the car, at which time the police arrived at the spot and
surrounded the taxi. One person out of the two passengers who had
got down from the taxi took to his heels. The police apprehended the
three passengers in the car. He was also taken to the police station.
PW4 identified A3 and A4 as two among the persons who had hired
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his car on the said day. PW4 further deposed that he does not
remember the other passengers whom he had identified before the
police.
11.4. PW5, Head Constable, Kalamassery police station
deposed that on 23/11/2003 he went along with PW14, Circle
Inspector for investigation. By noon they reached the road in front of
K.R. Bakery at Palarivattom. They parked their jeep by the side of the
road and were waiting by the side of the road. A white ambassador
car arrived, stopped by the side of the road and the passengers in the
car tried to pull a person into the car. They surrounded the car at
which time one of the persons from the car ran way. The Circle
Inspector arrested A2, A3 and A4 who were in the car. He is an
attestor to Ext.P4 and P5 mahazars prepared relating to the cash
seized from the possession of A2 and A4. In the cross examination
PW5 deposed that there were about 5 to 8 members in the police
party and that they reached the place in two jeeps. They were not on
routine patrol duty. They reached the spot as the Circle Inspector had
received some information. PW5 also deposed that by the time they
returned to the office of the Circle Inspector with A2, A3 and A4, the
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Sub Inspector had brought A1 who had taken to his heels also, to the
police station.
11.5. PW6, Police Constable, Kalamassery police station
supports the version of PW5. PW6 deposed that when the police team
surrounded the ambassador car, one of the passengers in the car had
taken to his heels. He along with PW13, Sub Inspector and two
police men chased the said person and apprehended him. Along with
the said person they returned to the office of the Circle Inspector.
PW6 identified A1 as the person who was arrested by the Sub
Inspector on the said day.
11.6. PW7, Police Constable, Kalamassery police station,
deposed that on 23/11/2003 he was on patrol duty along with PW13,
Sub Inspector. He supports the version of PW5 and PW6.
11.7. PW8, Police Constable, Kalamassery police station,
deposed that on 23/11/2003 when A1 was arrested and produced at
the station by about 02:00 p.m., he was also present at the station
when a search of the body of A1 was conducted. An amount of
₹15,310/- from the purse of A1 was seized. He is an attestor to Ext.P8
mahazar prepared by the Sub Inspector when the money was seized
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from A1.
11.8. PW9, Head Constable, Kalamassery police station,
deposed that on 23/11/2003 he was also present in the team along
with PW13 Sub Inspector on patrol duty. He was present when A1
was chased and apprehended.
11.9. PW10, Assistant Surgeon, Govt. Hospital, Aluva
deposed that on 18/11/2003 he had examined PW1 and PW2 and had
issued Ex.P11 and Ext.P12 certificates. On examination he did not
find any external injuries on PW1. PW2 had a tenderness on his back.
11.10. PW13, Sub Inspector, Kalamassery police station
deposed that he arrested A1 and had recovered MO.1 series sword
sticks as per Ext.P13 seizure mahazar based on the disclosure
statement given by A1 in the presence of PW11 attesting witness. The
disclosure statement has been marked as Ext.P13(a). The recovery
was made from the bushes in a plot near Ayyappa temple,
Thuthiyoor, Kakkanad. PW13 deposed that he had conducted
investigation in this case for a day, that is, on 24/11/2003 as PW14,
Circle Inspector was on court duty. In the cross examination PW13
deposed that on 23/11/2003 he was on patrol duty with his team of 6
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police men. It was in front of K.R.Bakery he had seen A1 trying to
pull a person into the car. A1 was on the front seat of the car and there
were 3 persons on the back seat. He was told by the Circle Inspector
that the latter had received information that the accused persons were
coming from Thrikkakkara side towards Palarivattom. The Circle
Inspector had passed on the information to him at H.M.T. Junction.
A1 had taken to his heels on seeing the police and he and his police
men had chased the former and apprehended him.
11.11. PW14, Circle Inspector, Kalamassery deposed that
on 18/11/2003 he prepared Ext.P2 scene mahazar after inspecting the
place of occurrence. On 23/11/2003 by about noon he received
information that the accused persons were travelling from
Palarivattom to Thrippunithura in a car bearing registration no.KL 7
K 7552. He immediately passed on the information to PW13 and
thereafter along with his team reached Palarivattom. He saw the
aforesaid car at Palarivattom and one of the passengers in the said car
attempting to forcibly pull a person standing by the side of the road
into the car. He along with his team immediately surrounded the car.
One of the passengers from the car took to his heels. After giving
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instructions to PW13 to chase the said person, he took the remaining
passengers, that is, A2 to A4 into custody. He seized the taxi car in
which A2 to A4 were travelling as per Ext.P3 mahzar. He returned to
his office along with A2 to A4. By that time A1 was chased and
caught by PW13 and was brought to his office. When the accused
persons were searched, currency notes worth ₹30,710/- was recovered
from them. A1 to A4 confessed regarding the complicity of A5 to A8
in the crime. On 24/11/2003 as he was on court duty, he instructed
PW13 to conduct the investigation as per which PW13 seized MO.1
series sword sticks based on the disclosure statement of A1. In the
cross examination PW14 deposed that the car that was used by the
accused in the crime was not seized as it had already been taken into
custody by the Sub Inspector, Ernakulam Town, North Police Station
in crime no.537/2003. A1 to A4 were identified by PW1. On
questioning PW1 he stated that it was in a UNO car that the accused
had come, attacked and robbed him on 18/11/2003.
12. DW1, Sub Inspector of Police, Town North Police
Station, Ernakulam, was examined on behalf of the accused persons.
DW1 deposed that the accused persons herein are also involved in
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crime no.537/2003 and that he had filed a final report before the court
after conducting investigation in the crime. In the said crime the
allegation was that a UNO car having registration no.KL-5G 7639
involved in this case was stolen by the accused persons. DW1 further
deposed that the statements given by the witnesses interrogated by
him would show that during the night of 17/11/2003 the aforesaid car
was proceeding from Nedumbassery to Kothamangalam.
13. PW1 and PW2 have clearly identified A1 to A3.
The testimony of PW1 shows that there was street light at the scene
of occurrence. Therefore, the argument advanced on behalf of the
appellants that there was no source of light at the place of occurrence
is apparently incorrect. The testimony of PW1 and PW2 regarding
the identification of A1 to A3, has not been discredited in any way
and hence I find no reasons to disbelieve them. A1 to A3 have been
convicted for the offence punishable under Section 397 read with
Section 395 IPC. Section 395 dealing with punishment for dacoity
says that whoever commits dacoity is liable to be punished with
imprisonment for life or rigorous imprisonment for a term which may
extend to 10 years and also fine. Section 397 deals with robbery or
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dacoity with attempt to cause death or grievous hurt. The Section
says that at the time of committing robbery or dacoity, the offender
uses any deadly weapon or causes grievous hurt to any person or
attempts to cause death or grievous hurt to any person, the
imprisonment with which such offender shall be punished, shall not
be less than seven years. 'Dacoity' is defined under Section 391 IPC.
It says that when five or more persons conjointly commit or attempt
to commit a robbery, or where the whole number of persons
conjointly committing or attempting to commit a robbery, and the
persons present at aiding such commission or attempt amounts to five
or more, every person so committing, attempting or aiding, is said to
commit "dacoity".
14. In cases of dacotiy, the gravity of the offence
consists in the terror it causes by the presence of the number of
members. Here the testimony of PW1 and PW2 show that there were
more than five persons, that is seven persons involved in the assault.
It is true that PW1 and PW2 were unable to identify all the accused
persons and they were able to identify only A1 to A3. PW1 deposed
that there were about seven persons, but he was not able to notice all
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of them. PW2 also deposed that there were more than five persons
involved in the crime, but he was also unable to identify all the
accused persons. The participation of more than five persons is
testified by PW1 and PW2. The other accused persons were not
convicted only because the witnesses failed to identify them. As
pointed out by the learned Public Prosecutor, it is not necessary that if
only all the five persons are convicted, the offence of dacoity would
stand proved. Even if the witnesses are unable to be identify all 5 of
them, if the remaining materials on record is creditworthy and reliable
to show that there was infact five or more persons involved in the
crime, the offence of dacotiy would stand proved. However, in the
case on hand, it appears from the testimony of PW1 that in the hustle
and bustle he failed to notice all the persons. That being the position,
it may not be quite safe to conclude positively that there were infact
five persons or more persons involved in the crime.
15. It is true that there is discrepancy in the prosecution
case regarding the make and registration number of the vehicle in
which the accused persons are alleged to have arrived at the scene of
occurrence. The testimony of DW1, as rightly pointed out by the trial
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court does not show that it was impossible for the accused persons to
have been present at the scene of occurrence. The discrepancy
regarding the make and registration number of the vehicle is not of
much relevance in the light of the testimony of PW1 and PW2 whom
I find no reasons to disbelieve coupled with the prompt registration of
the crime. From the materials on record even if the offence of dacoity
is not made out, the offence of robbery as contemplated under Section
390 punishable under Section 392 IPC is clearly made out. Section
390 IPC deals with robbery, which says that in all robbery there is
either theft or extortion. Theft becomes robbery if in order to
committing of the theft or in the committing of theft or in carrying
away or attempting to carry away property obtained by the theft, the
offender, for that end, voluntarily causes or attempts to cause to any
person death or hurt or wrongful restraint, or fear of instant death or
of instant hurt, or of instant wrongful restraint.
16. It is true that PW1 and PW2 have deposed that the
robbers had smashed the windshield as well as the headlamps of the
lorry. However, PW1 referred to the presence of street light at the
place of occurrence. This testimony of PW1 has not been challenged
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or discredited in any way. The identity of A1 to A3 testified by PW1
and PW2 is also not seen effectively challenged or discredited. The
testimony of PW1 and PW2 along with the FIS would show that they
did have sufficient opportunity to see the accused persons and that it
was not a fleeting glance. PW1 also deposed that both of them were
trembling with fear when the robbers attacked them, placed him at
sword point and took away the money from dashboard of the lorry. It
would certainly have been ideal, had TIP been conducted. However,
merely because a TIP was not conducted, is no ground to reject the
prosecution case in the light of the testimony of PW1 and PW2,
whom I find no reasons to disbelieve. The complicity of A1 to A3 in
the crime has been clearly made out. The testimony of PW1 and PW2
shows that they were put under fear of instant death/of instant hurt as
PW1 deposed that both of them were trembling with fear when the
accused persons attacked and threatened them with sword sticks that
both of them would be done away with. Therefore, the offence of
robbery as contemplated under Section 390 punishable under Section
392 IPC is clearly made out. Section 392 IPC deals with punishment
for robbery which says that whoever commits robbery shall be
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punished with rigorous imprisonment for a term which may extend to
ten years, and shall also be liable to fine; and, if the robbery be
committed on the highway between sunset and sunrise, the
imprisonment may be extended to fourteen years. Here, the
testimony of PW1 and PW2 shows that the incident took place on
18/11/2003 at 02:30 a.m. and that it took place on a highway and so
the latter part of Section 392 is attracted.
17. A4 has been found guilty of the offence punishable
under Section 412 IPC which deals with the offence of dishonestly
receiving property stolen in the commission of a dacoity. The Section
says that whoever dishonestly receives or retains any stolen property,
the possession whereof he knows or has reason to believe to have
been transferred by the commission of dacoity, or dishonestly
receives from a person, whom he knows or has reason to believe to
belong or to have belonged to a gang of dacoits, property which he
knows or has reason to believe to have been stolen, is liable to be
punished with imprisonment and fine. I have already referred to the
materials relied on by the prosecution in support of the case.
Admittedly, no charge under Section 412 of IPC has been framed
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against A4. Section 222(2) Cr.P.C. says that when a person is
charged with an offence and facts are proved which reduce it to a
minor offence, then he may be convicted of the minor offence,
although he is not specifically charged with it, this Section cannot be
invoked in the case on hand because Section 412 IPC is not a minor
offence compared to the offence contemplated under Section 395 or
Section 397 IPC. That being the position, the evidence on record is
also totally insufficient to find A4 guilty of the offence under Section
412 IPC. Therefore, the finding of the trial court that A4 is guilty of
the offence under Section 412 is liable to be interfered with.
18. As far as A1 to A3 is concerned, the offence under
Section 392 IPC has been clearly made out. A1 and A3 are no more.
Therefore, the substantive sentence against A1 and A3 stand abated.
The sentence regarding fine imposed on A1 and A3 shall stand
confirmed. As far as A2 is concerned, he is found guilty of the
offence under Section 392 IPC. The trial court has sentenced A2 to
rigorous imprisonment for a period of seven years and to a fine of
₹10,000/- for the offence under Section 395 read with Section 397.
As noticed earlier when a robbery is committed on the highway
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between sunset and sunrise, the imprisonment extends to 14 years.
The period of seven years that has been imposed by the trial court,
though for a wrong offence, is commensurate with the crime
committed by A2. Therefore, I find no reasons to interfere with the
sentence that has been imposed.
In the result, the appeal is partly allowed and the conviction
and sentence passed against A4 is set aside and he is acquitted under
Section 235(1) Cr.P.C. He is set at liberty and his bail bond shall
stand cancelled. The appeal filed by A1 to A3 shall stand dismissed.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA
JUDGE
ak
