Anzar vs State Of Kerala
2025 Latest Caselaw 7180 Ker

Kerala High Court

Anzar vs State Of Kerala on 25 June, 2025

                                                            2025:KER:46178

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

                THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

        WEDNESDAY, THE 25TH DAY OF JUNE 2025 / 4TH ASHADHA, 1947

                          CRL.A NO. 1276 OF 2014

  AGAINST THE JUDGMENT DATED 24.09.2014 IN S.C. NO.1706 OF 2011 ON THE

     FILES OF THE ADDITIONAL DISTRICT & SESSIONS COURT - V, KOLLAM


APPELLANT/2ND ACCUSED:

           ANZAR
           AGED 30 YEARS
           S/O.SAVED, ANZIYA MANZIL, MANATTU VATHUKKAL, VETTOOR DESOM,
           VARKALA, KOLLAM DISTRICT


           BY ADV SRI.M.KIRANLAL


RESPONDENT/COMPLAINANT:

           STATE OF KERALA
           REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
           ERNAKULAM, PIN- 682 031.


           BY ADV PUBLIC PROSECUTOR
           PP - HASNA MOL.N.S


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.06.2025, THE
COURT ON 25.06.2025 DELIVERED THE FOLLOWING:
                                                         2025:KER:46178
Crl.A. No. 1276 of 2014
                                  2


                                                        "C.R"
                           JUDGMENT

Dated this the 25th day of June, 2025

The conviction and sentence imposed against the

2nd accused as per the judgment dated 24.09.2014 in S.C.

No.1706/2011 on the files of the Additional District and

Sessions Court-V, Kollam are under challenge in this appeal

filed under Section 374(2) of the Code of Criminal

Procedure, 1973, by the 2nd accused. The State of Kerala,

represented by the Public Prosecutor is arrayed as the sole

respondent herein.

2. Even though, this appeal has been filed as early

on 01.12.2014, the counsel for the appellant was not

available for hearing. Accordingly, Adv.Gayathri Krishnan is

appointed as the Amicus Curiae, in this matter. But, her

appointment is modified as that of State Brief.

3. Heard the learned State Brief, Adv.Gayathri

Krishnan, appearing for the appellant and the learned

Public Prosecutor, in detail. Perused the verdict under

challenge and the records of the trial court.

2025:KER:46178

4. Parties in this appeal shall be referred as

'prosecution' and 'accused', hereafter.

5. The prosecution case is that, at about 11.45 p.m.

on 25.04.2007, while PW1 and PW12 were walking through

the road, accused Nos.1 to 6 reached near them in

motorcycles and beat PW12 with an iron rod causing hurt to

him and robbed away gold ornaments worth Rs.25,000/-

belonged to PW1. It is on this premise, the prosecution

alleges commission of the offence punishable under Section

395 of the IPC, by accused Nos.1 to 6. Among the six

accused persons, the 1st accused was tried earlier, since

the other accused were not available for trial. Thereafter,

the case against accused Nos. 2, 3 and 6 was refiled as S.C.

No. 1706/2011. The trial court recorded evidence confined

to that of PWs 1 to 12, Exts.P1 to P11(a) and MOs 1 to 7.

After the prosecution evidence, accused Nos.2 and 6

(arrayed in this case as accused Nos.1 and 3) absconded

and their presence for further trial could not be secured.

Accordingly, their case was split up and the trial against the

appellant herein, who was the 2 nd accused in S.C. No. 2025:KER:46178

1706/2011 (originally arrayed as the 3 rd accused in the

crime) was proceeded. Even though, the accused was given

opportunity to adduce defence evidence after questioning

him under Section 313(1)(b) of Cr.P.C, he did not opt to

adduce any defence evidence.

6. On appreciation of evidence, the trial court found

that the 2nd accused was guilty for the offence punishable

under Section 395 of the IPC. Accordingly, the 2 nd accused

was convicted for the said offence and sentenced to

undergo rigorous imprisonment for a period of two years

and to pay a fine of Rs.5,000/-. In default of payment of

fine, the 2nd accused was sentenced to undergo rigorous

imprisonment for a period of three months more. Set off

was allowed to the accused, as per law.

7. While challenging the conviction and sentence

imposed by the trial court against the 2 nd

accused/appellant, the learned State Brief would submit

that, in this matter, the identity of the appellant, who is the

original 3rd accused, is not proved with certainty, to find him

guilty for the offence alleged to be committed by the 2025:KER:46178

prosecution. That apart, no records produced by the Police

to show the arrest of the 2 nd accused/appellant. Therefore,

his arrest, in fact, is not proved. Apart from that, it is

argued that, even though MOs 1 to 3 alleged to be robbed

away by the accused were taken into custody, on disclosure

of the same by the 2nd accused, under Section 27 of the

Evidence Act, the owner of the shop where from the

recovery effected was not examined. Accordingly, the

learned State Brief canvased acquittal of the 2 nd

accused/appellant, finding flaws in the prosecution

evidence.

8. Dispelling this argument, the learned Public

Prosecutor argued that, going by the evidence given by

PW1 as well as PW12, the identity of the accused at the

dock as well as the identity of the accused at the Police

Police Station otherwise is well established. That apart, no

serious challenge raised disputing the identity of the

accused during trial, at the instance of the accused.

Therefore, the identity of the 2nd accused is well

established, so that this challenge would not succeed.

2025:KER:46178

Regarding the recovery of MOs 1 to 3, the learned Public

Prosecutor argued that, the same is proved by the evidence

of the Investigating Officer as well as the witnesses to the

recovery mahazar. Therefore, there is no reason to doubt

the same. It is also pointed out that, arrest of the accused

could not be ensured without preparing arrest memo. But,

the same was not tendered in evidence and the same is a

mistake done by the Public Prosecutor, who conducted the

case. However, non production of arrest memo as part of

evidence by itself is not a reason to acquit the accused, if

his guilt was proved by the available evidence. Therefore,

the conviction and sentence imposed by the trial court

against the 2nd accused/appellant herein do not require any

interference.

9. In view of the rival submissions, the points arise

for consideration are:

1. Whether the trial court went wrong in finding that the 2nd accused/appellant committed the offence punishable under Section 395 of the IPC?

2. Whether the verdict of the trial court would require interference?

3. Order to be passed?

2025:KER:46178

10. Point Nos.1 and 2:- The crucial evidence regarding

the occurrence in this case is that of PW1 as well as PW12.

PW1 examined in this case is one Shylaja and according to

her, she knew the accused at the dock and the occurrence

(at the time of trial, accused Nos. 2, 3 and 6 were at the

dock). Though, she did not remember the date of

occurrence, when it was suggested, she stated that the

occurrence was at 11.00 p.m. on 25.04.2007. The evidence

of PW1 is that, the place of occurrence was at Plavinmoodu

Junction in Paravoor-Parippally Road. According to her, at the

time of occurrence, she along with her husband, PW12 were

coming out of the house of the sister of PW12 and she was

carrying their child. While they were walking from

Meenambalam, six persons came from behind in bikes and

asked the house of one Babu. When PW12 showed the

house, the accused persons moved forward. Thereafter, the

accused came back and beat PW12 on his head by using an

iron rod. PW1 ran therefrom carrying the child and fell down.

By the time, the accused persons taken away 3.5 sovereigns

of gold chain and the studs of her right ear.

Even though, during cross-examination, some minor 2025:KER:46178

omissions extracted regarding the total number of the

accused persons, nothing extracted to disbelieve the

evidence of PW1. PW1 identified accused Nos.2, 3 and 6 at

the dock and the 3rd accused so identified is the appellant

herein. PW1 given evidence further that before dock

identification, she identified the accused persons at the

Police Station also. During cross-examination of PW1, the

identity of the accused was not put under serious

challenge, by questioning PW1, as to whether PW1 was

familiar with the accused or with suggestion that she had

any occasion to identify the accused, as she did not know

the accused prior to the occurrence.

11. PW12, who is the husband of PW1 also supported

the occurrence in similar terms as deposed by PW1

regarding the occurrence. Ext.P6 is the First Information

Statement given by him before the Investigating Officer,

which led to registration of this crime and PW12 supported

Ext.P6 statement given by him. PW12 also identified the

accused at the dock and stated that he had identified the

accused, after the occurrence at the Police Station itself.

2025:KER:46178

During cross-examination of PW12 also, the identity of the

2nd accused/appellant was not put under challenge, as

already discussed.

12. Therefore, it could not be held that there was no

proper identification of the accused in this case to hold that

the prosecution failed to identify the accused. Apart from

that, PW12 deposed that he sustained injuries in the

occurrence. PW2 the doctor, K.Sthanu Kumar was examined

to prove Ext.P1 wound certificate prepared by Dr.Binu, who

was working as the Causality Medical Officer at Safa

Hospital, Parippally during the relevant time, after

identifying his handwriting and signature therein. PW2

deposed in support of Ext.P1 and the injuries sustained by

PW12 viz. lacerated wound on scalp 1x4 c.m., lacerated

wound on scalp 1x3 c.m. and contusion right shoulder. He

also opined that injuries could be caused as alleged.

13. PW11 is the Investigating Officer, who conducted

the investigation in this crime, from 01.03.2007 till

30.10.2009 and recorded the confession statement of the

2nd accused. PW11 deposed that, during questioning the 2 nd 2025:KER:46178

accused/the appellant herein gave statement that, he

pledged MOs 1 to 3 at S.R.M. Finance at Puthenchantha

Junction and the 2nd accused was ready to show the same,

if he was brought there. Accordingly, PW11 accompanied

the 2nd accused/appellant and recovered MOs 1 to 3 as

shown by the accused by preparing Ext.P11 recovery

mahazar and the statement of the 2 nd accused, which led to

recovery is marked as Ext.P11(a). He also identified MOs 1

to 3 as the studs. During cross-examination, the confession

statement as well as the authorship of concealment as

disclosed by the 2nd accused/appellant as well as his arrest

were deposed by PW11.

14. Coming to the other evidence, PW4 denied

having seen the incident and turned hostile to the

prosecution. PW5 is an attester to Ext.P4 recovery mahazar

of iron rod marked as MO7. During cross examination he

stated that it was an iron pipe. PW6 stated that he was

familiar with PW1, Shailaja and PW12 Sunil Kumar. He saw

the incident while standing at a distance, half furlong away.

When he reached the spot, he saw PWs 1 and 12 with 2025:KER:46178

injuries. They informed that the ear stud and a gold chain

were lost. But, his evidence is that, he did not see the

accused. PW7 is an attester to the scene mahazar and it is

marked as Ext.P5. PW8 is an appraiser of gold ornaments.

On 9.7.2007 he verified the gold ornaments and

ascertained its purity. He identified MOs 1 to 3. PW9, the

then Sub Inspector of Police at Parippally police station

testified that, on 26.4.2007 he recorded the FI statement

given by PW12 Sunil Kumar, marked as Ext.P6. On the basis

of Ext.P6 statement he registered the case as Crime

No:134/2007 and the FIR prepared by him is marked as

Ext.P7. The investigation was conducted by Circle Inspector

and he supported the investigation.

15. Now, the question arises for consideration is,

whether the prosecution established the ingredients to

attract the offence punishable under Section 395 of IPC?

16. Section 395 of IPC deal with punishment for

dacoity, wherein it has been provided that, whoever

commits dacoity shall be punished with imprisonment for

life, or with rigorous imprisonment for a term which may 2025:KER:46178

extend to ten years, and shall also be liable to fine.

17. Section 391 of IPC defines the offence of dacoity,

wherein it has been provided 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

persons present and aiding such commission or attempt,

amount to five or more, every person so committing,

attempting or aiding, is said to commit "dacoity".

18. So, when robbery is committed by five or more

persons, the same is dacoity and robbery is defined under

Section 390 of IPC. Section 390 of IPC explains when theft

becomes robbery. It has been provided that, theft is

"robbery" if, in order to the committing of the theft, or in

committing the 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.

19. An analysis of section 390 of the Indian Penal 2025:KER:46178

Code, 1860, theft may constitute robbery, when the

prosecution establishes the following ingredients:

(a) if in order to the committing of theft, or

(b) in committing the theft: or

(c) in carrying away or attempting to carry away

property obtained by theft:

(d) the offender for that end i.e., any of the ends

contemplated by (a) to (c).

(e) 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 instant wrongful restraint.

20. In other words, theft would only be robbery if for

any of the ends mentioned in (a) to (c) the offender

voluntarily causes or attempts to cause to any person

death or hurt or wrongful restraint or fear of instant death

or of instant hurl or instant wrongful restraint. If the ends

does not fall within (a) to (c) but, the offender still causes or

attempts to cause to any person death or hurt or wrongful

restraint or fear of instant death or of instant hurt or instant

wrongful restraint, the offence would not be robbery.

2025:KER:46178

Therefore, it is essential that (a) or (b) or (c) has to be read

conjunctively with (d) and (e). It is only when (a) or (b) or

(c) co-exist with (d) and (e) is there a nexus between any of

them and (d) and (e) would theft amount to robbery.

21. Here, the evidence available would indicate that

altogether six accused persons, after sharing common

intention to commit robbery, caused injuries to PW12 and

robbed away gold ornaments belonged to PW1. In their

attempt to commit robbery, they asked the house of one

Babu to PW12. When PW12 showed the house, the accused

persons moved forward and came back soon. Then, they

beat PW12 on his head by using an iron rod, which is

marked as MO7. PW1 scared to see this, ran away from the

place of occurrence carrying the child and she fell down.

When, PW1 fell down, the accused persons taken away MOs

1 to 3 belonged to PW1 and the same were recovered on

the basis of confession statement given by the 2 nd

accused/appellant herein and the recovery was proved. In

such a case, there is no reason to hold that the trial court

went wrong in finding that the 2 nd accused/appellant herein 2025:KER:46178

committed the offence punishable under Section 395 of

IPC, where PW12 sustained injuries as deposed by him and

the injuries sustained and the treatment underwent were

proved by examining PW2. While addressing the contention

raised as regards to proper identification of the appellant,

PW1 and PW12 identified him at the dock and later the

stolen items viz. MOs 1 to 3 recovered at his instance under

Section 27 of the Evidence Act. Further, the identity was

not disputed before the trial court as already discussed.

Therefore, the challenge on the ground of identity raised

before the Appellate Court necessarily fail. Similar is the

position with regard to non marking of arrest memo. Merely

because the Prosecutor failed to tender the arrest memo in

evidence, that by itself is insufficient to acquit an accused,

where evidence is available to prove the guilt of the

accused. Non examination of the owner of S.R.M. Finance

also is not fatal to the prosecution, as the recovery of MOs

1 to 3 was proved satisfactorily. That apart, PW1 deposed

about release of the same to her from the Court. Therefore,

the ingredients to attract an offence punishable under 2025:KER:46178

Section 395 of IPC are established by the prosecution

beyond reasonable doubt. Thus, the conviction imposed

against the 2nd accused/appellant by the trial court does not

require any interference.

22. Coming to the sentence imposed against the 2nd

accused/appellant herein, the trial court imposed rigorous

imprisonment for a period of two years and to pay a fine of

Rs.5,000/- and in default of payment of fine, the 2 nd

accused was sentenced to undergo rigorous imprisonment

for a period of three months more. Considering the gravity

of the offence and the manner in which the same was done,

the 2nd accused/appellant herein does not deserve much

leniency in the matter of sentence. However, in the interest

of justice, I am inclined to reduce the sentence for a period

of eighteen months and to pay a fine of Rs.5,000/-.

23. Point No.3:- In the result, this appeal is allowed in

part. The conviction imposed against the 2 nd

accused/appellant herein by the trial court stands confirmed

and sentence stands modified, whereby the 2 nd

accused/appellant herein is sentenced to undergo rigorous

imprisonment for a period of eighteen months and to pay 2025:KER:46178

fine of Rs.5,000/- (Rupees Five Thousand Only). In default of

payment of fine, the 2nd accused/appellant herein shall

undergo rigorous imprisonment/default imprisonment for a

period of one month. The 2 nd accused/appellant herein is

directed to appear before the trial court, forthwith to

undergo the modified sentence. In default to do so, the trial

court is directed to execute the sentence, as per law, without

fail.

Registry is directed to forward a copy of this judgment

to the trial court for information and compliance, forthwith.

Sd/-

A. BADHARUDEEN SK JUDGE