Partly allowed

Sunil v. State of Kerala

Kerala HC9 Apr 2024CRL.A/319/2011

Case brief

AI extract

What is this about?

The Kerala High Court dismissed the criminal appeal confirming the conviction under Section 393 IPC for attempt to commit robbery. The court found the prosecution evidence credible and held that the victim's desire not to punish the appellant could not negate the conviction for a non-compoundable offence. However, the sentence was reduced to the period already undergone in detention.

What did the court decide?

Conviction upheld; sentence reduced to period of detention already served; fine enhanced to Rs.20,000/-

Sunil Vs State of Kerala — Cheating and Forgery | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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TUESDAY, THE 9^TH DAY OF APRIL 2024 / 20TH CHAITHRA, 1946

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CRL.APPEAL NO. 319 OF 2011

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AGAINST THE JUDGMENT DATED 17.02.2011 IN SC NO.119 OF 2010 OF THE SPECIAL COURT (NDPS ACT CASES), THODUPUZHA

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APPELLANT/ACCUSED:

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SUNIL, S/O SUKUMARAN, PUTHUPPARAMBIL HOUSE, EATTAKKANAM BHAGAM, KOOTTAR KARA, KARUNAPURAM VILLAGE.

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BY ADV SRI.S.RAJEEV

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RESPONDENT/COMPLAINANT/STATE:

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STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.28/10 OF CUMBUMMETTU POLICE STATION, IDUKKI DISTRICT)

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SMT.NIMA JACOB, PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 13.03.2024, THE COURT ON 09.04.2024 DELIVERED THE FOLLOWING:

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Crl.Appeal No.319 of 2011

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P.G. AJITHKUMAR, J.

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-----------------------------------------------------------

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Crl.Appeal No.319 of 2011

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----------------------------------------------------------Dated this the 9^th day of April, 2024

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JUDGMENT

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The appellant is the accused in S.C.No.119 of 2010 on the files of the Sessions Court, Thodupuzha. The final report was filed alleging offences punishable are under Sections 307 and 393 of the Indian Penal Code, 1860 (IPC). After trial, the II Additional Sessions Judge, Thodupuzha convicted the appellant for the offence under Section 393 of the IPC and sentenced him to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.5,000/-. The appellant assails the said judgment of conviction and the order of sentence in this appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (Code.).

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Heard the learned counsel for the appellant and the learned Public Prosecutor.

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The case of the prosecution was as follows:

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PW1, Smt.Nirmala, was on her way back home on

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Crl.Appeal No.319 of 2011

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02.02.2010. At about 6.45 p.m., when she reached the pathway leading to her place of residence at Ottakkada, the appellant, who was coming behind, tried to snatch away the gold chain from her neck. She resisted. The appellant gagged her and threatened to do away with. When she started crying, the appellant lifted her and walked forward. PW1 bit at his hand and then he threw her against the fence of the adjoining compound and ran away. She sustained injuries in the incident.

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When the charge was framed, the appellant denied. Therefore, the prosecution has examined PWs.1 to 10 and proved Exts.P1 to P5. MO1 series were identified also. When examined under Section 313(1)(b) of the Code, the appellant denied all the incriminating circumstances appeared against him in evidence. He stated that while travelling in a jeep, he happened to touch the body of PW1 and a quarrel ensued. There was political rivalry between PW1 and the father of the appellant. In order to wreak vengeance on that, PW1 had foisted the case. No defence evidence was let in.

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Crl.Appeal No.319 of 2011

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The trial court believed the evidence of PW1 as well as PW2, a 15 year old boy, who claimed to have seen the appellant assaulting PW1 by throwing her away, found the appellant guilty. Evidence tendered by PW3, the driver of the jeep in which both PW1 and the appellant travelled some time before the incident and PW4 in whose autorickshaw the appellant was located by PW1 and others and entrusted with the police was found supportive to the evidence tendered by PW1. The medical evidence also placed reliance on by the trial court in order to render the finding that the appellant has committed the offence of attempting to commit robbery.

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The learned counsel for the appellant vehemently contended that the evidence of PW1 contains a number of discrepancies which render her totally unworthy of credit and the evidence of PW2 is unreliable for, he was examined without even conducting a voir dire test. Further, it is submitted that the contradictions inter se the versions of PW1 and 2 obviate that PW2 was not a witness to the incident. It is also submitted that the evidence of PWs.3 and 4 cannot be

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given any credence since they are workers of a political party to which PW1 belongs to and a conscious attempt on their part to support PW1 is evident from their testimonies.

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The allegation of the prosecution is that the gold chain worn by PW1 was tried to be snatched away. It is contended that no evidence to prove that the chain was made up of gold is let in and hence no offence of robbery can be attracted. It is not very much evident that the appellant was a person known to PW1 before and therefore her identification of the appellant cannot be believed, particularly when he was identified as the assailant only as pointed out by PW3, while the appellant was sitting in the autorickshaw of PW2. The further submission of the learned counsel for the appellant is that the injuries noted on PW1, which were two abrasions; one on the left hand and other on the left elbow, do not correspond to the assault said to have been perpetrated against her. In that regard, the learned counsel placed reliance on Mohammed Wajid v. State of U.P. [2023 KHC

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6763] .

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Crl.Appeal No.319 of 2011

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Although a few witnesses hailing from the locality were cited, the prosecution did not venture to examine them and that also rendered the case of the prosecution unbelievable. In that regard the learned counsel gets fortification from the decision of the Apex Court in Deny Bora v. State of Assam [(2014) 11 SCC 42] .

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The learned Public Prosecutor, on the other hand, contended that the evidence of PWs.1 and 2 is quite natural. When the allegation of the appellant that PW1 had political vendetta against him is not supported by any evidence, there can hardly be any reason to disbelieve the said witnesses. PW2 was sufficiently mature at the time of examination and

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the failure to conduct a voir dire test does not render his evidence unreliable. It is further submitted that the discrepancies pointed out are trivial in nature and that can only be ignored. Immediately after the incident, PW1, with the assistance of the persons in the neighbourhood, went to the hospital and enroute she with the help of PW3 located the appellant. Since he was a person known to PW1 beforehand,

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there is no question of mistaken identity. Especially, it is so since PW3 identified the appellant as the person who travelled along with PW1 in the jeep, a fact which was admitted by the appellant during 313 examination. Accordingly, the learned Public Prosecutor submitted that the judgment of conviction is based on sound reasoning and sufficient evidence.

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The incident as narrated by PW1 is that the appellant came behind and tried to snatch away her chain. She resisted and cried aloud, which prompted him to grab and lift her in his attempt to take her to a distant place. The version of PW2 is that he saw the appellant carrying PW1 along the pathway and on seeing him, the appellant threw her away. In that regard a discrepancy is pointed out that while PW1 stated that she was carried on hand, PW2 stated that PW1 was carried by the appellant on his shoulder. I do not find the discrepancy is so serious to render the witnesses unreliable.

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True, no voir dire test was seen conducted before examining PW2. He was aged 15 years at the time of

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Crl.Appeal No.319 of 2011

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examination. It cannot be said that he was a child witness required to conduct a voir dire test mandatorily.

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The improbability pointed out in regard to his evidence is that he was going in front and therefore there was no possibility for seeing the incident, particularly, it was so in view of the version of PW1 that she was thrown away by the appellant on seeing PW2 coming. It is the version of PW2 that from about 15 feet away he had seen the incident. PW1 stated to have cried when she was assaulted. That would have definitely invited attention of PW2 and therefore no improbability in his seeing the incident or the appellant seeing him can be found. Similar is the contention regarding the injury sustained by PW1. She was lifted and thrown against a fence nearby. She sustained abrasions on her right forearm. Immediately she was taken to the hospital and the cause of injury stated was assault by the assailants, dragged her and thrown away in her attempt to rob her gold chain. That version certainly corroborates the oral testimony of PW1. It cannot be said that the injuries sustained would not be

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possible due to such an act. Therefore, the oral testimony of PW1 regarding the violence perpetrated against her gets sufficient support from the oral testimony of PW2 and the medical evidence. There cannot be any doubt about the identity of the assailant as well. The contention that the prosecution did not prove that the chain worn by PW1 at the time of occurrence was a golden one cannot be reckoned with. Be it a gold chain or not, if there was an attempt to snatch it away and in that course injury was inflicted, that constitutes an offence punishable under Section 393 of the IPC. In the light of discussion made above, I am of the view that the prosecution succeeded in proving beyond doubt that the appellant committed the offence of attempting to commit robbery. There is no reason to interfere with the findings of the trial court in that regard.

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PW1 filed an affidavit stating that she has no further grievance in the matter and she does not want to ruin the friendly relationship her family has with the family of the appellant on account of this case. Accordingly, it is averred in

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the affidavit that the appellant may not be convicted and sentenced to undergo imprisonment. The offence is not a compoundable one. Therefore, the said affidavit cannot be acted upon to absolve the appellant from the conviction. However, the averments in the affidavit certainly have to be taken into account, especially having regard to the nature of the offence and also the cordial relationship between the parties.

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Accordingly, while confirming the conviction, the sentence imposed on the appellant is modified. The appellant was sentenced to undergo rigorous imprisonment for a period of 4 years and to pay a fine of Rs.5,000/-. The punishment prescribed for the offence is imprisonment for a period of 7 years and fine. Having regard to the facts mentioned above, and also taking into account appellant's age, and the time taken to conclude the proceedings, the sentence is confined to the period during which he was under detention in connection with this case. He is further sentenced to pay a fine of Rs.20,000/- with a default sentence of three months.

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Crl.Appeal No.319 of 2011

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The appeal is allowed in part as above.

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Sd/-

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P.G. AJITHKUMAR, JUDGE

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dkr

Sunil v. State of Kerala

Case brief

What is this about?

What did the court decide?

Sunil v. State of Kerala

Case brief

What is this about?

What did the court decide?

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