KABEER, S/O. ABDULLA vs STATE OF KERALA

The revision petitioner herein challenges the conviction and sentence against him under Section 392 I.P.C in C.C 151/2004 of the Judicial First

Class Magistrate Court, Nadapuram. He faced prosecution in the court below on the allegation that at about 8.30 a.m on 23.8.2002, he

committed robbery of the ear ornament of one Kunhami, and in the said process he caused injury to the said Kunhami. The Police registered the

crime on the complaint of a neighbour of the said Kunhami. After about four months, he was arrested by the Police in suspicious circumstances,

and when interrogated by the Police in custody, he gave a statement leading to the recovery of the gold ornament involved in this case. It was

accordingly recovered under Section 27 of the Evidence Act and it was got identified by the victim. After investigation, the Police submitted final

report in court under Section 394 I.P.C.

The accused appeared before the learned Magistrate and pleaded not guilty to the charge framed against him under Section 394 I.P.C. The

prosecution examined thirteen witnesses and proved Exts.P1 to P6 documents in the trial court. The MO1 gold ear ring was identified during trial

by PW2.

On an appreciation of the evidence, the trial court found the accused guilty and he was convicted under Section 394 I.P.C. Challenging the

conviction and sentence, he preferred appeal before the Court of Session as Crl.A No. 550/2006. In appeal, the Court of Session remanded the

matter to the trial court for proper decision after framing a proper charge. Accordingly, the trial court framed charge against the accused under

Sections 392 and 394 I.P.C and proceeded to recall the witnesses. After complying with the procedure, after remand, the trial court found the

accused guilty under Section 392 I.P.C and he was found not guilty under Section 394 I.P.C. As regards the offence under Section 394 I.P.C, he

was acquitted by the trial court. On conviction under Section 392 I.P.C, he was sentenced to undergo rigorous imprisonment for 2 1/2 years and

to pay a fine of Rs.5000/-. Aggrieved by the judgment of conviction dated 29.6.2007, the accused approached the Court of Session again with

Crl.460/2007. In appeal, the learned Sessions Judge confirmed the conviction and sentence and accordingly dismissed the appeal.

On hearing both sides, and on a perusal of the materials, I find that there is clear and definite evidence in this case to prove the offence under

Section 392 I.P.C. PW2 is the victim of offence. She identified the MO1 ornament taken from her possession by force by the accused and she

also identified the accused as the person who committed robbery. The incident happened at about 8.30 p.m and the witness clarified that the

accused is a person of the locality known to her, and that she saw and identified him in the light of a lamp. PW2 affirmed in evidence that just after

she completed the night prayers, the accused came at her house and forcibly snatched away her ornament, and that in the said process, she

sustained an injury on her ear. The evidence given by PW2 stands not discredited. She is a very old lady aged 95 years and the court below has

recorded the physical condition of the lady at the time of the examination.

PW1 is the neighbour of PW2 who gave the Ext.P1 complaint. Of course, he had not seen the accused or the incident. His evidence is that

when he reached the house of PW2 on hearing her cry, he saw her with a bleeding injury on the ear, and when asked what happened she stated

that the accused committed robbery of her ear ring, and in the said process she sustained injury. The lady was immediately taken to the hospital by

PW1 and others. PW3 is another neighbour. His evidence is that when he rushed to the house of PW2 on hearing her cry, he saw the accused in

this case running away from the house. The accused is a person of the locality known to all the witnesses. PW3 also identified the accused in court.

Thus the evidence of PW3 contains a strong circumstance against the accused that he was found running away from the house of PW2 after the

incident. The evidence of PW1 contains a res gestae evidence against the accused admissible under Section 6 of the Evidence Act, that

immediately after the incident, the victim told him what happened to her and who committed robbery of the gold ornament.

PW7 is the Doctor who examined PW2 at the hospital at about 11 p.m on the same day, and issued the Ext.P3 certificate. The medical

evidence proves that PW2 had sustained injuries in the process of robbery. As the said injury was not inflicted voluntarily by the accused for the

purpose of committing robbery, the trial court found the accused not guilty under Section 394 I.P.C, and he was found guilty under Section 392

I.P.C.

PW13 is the Sub Inspector who investigated the case. His evidence is that during investigation, the accused was interrogated by him on

23.12.2003 after receiving him in custody from the court, and on interrogation, the accused gave a statement that led to the recovery of the gold

ornament involved in this case. This recovery stands well proved in evidence. There is nothing to suspect the recovery made by PW13 under

Section 27 of the Evidence Act at the instance of the accused. The ornament recovered at his instance was identified by PW2 during trial.

Thus,on an examination of the entire materials as discussed above, I find that the prosecution has well proved the offence under Section 392

I.P.C beyond reasonable doubt. The accused did not claim the ornament during trial. I find no reason to disbelieve the evidence of PW2, or to

reject her evidence on facts. She is well supported by PW1 and PW3.

Now the question of sentence. It appears that the revision petitioner is a first offender. No other crime of similar nature is seen reported against

him. He is a person of the locality. Of course, it is true that it is really cruel that he committed robbery of an ornament from the possession of a very

old lady knowing that she is alone and helpless. Anyway, on a consideration of all the relevant aspects including the very young age of the accused

at the time of the incident, I feel that rigorous imprisonment for ten months will be the adequate sentence in this case.

In the result, the conviction against the revision petitioner in C.C 151/2004 of the court below is confirmed and the revision petition is disposed

of accordingly. However, the jail sentence imposed by the court below will stand modified and reduced to rigorous imprisonment for ten months.

The fine sentence with the default sentence thereon is maintained. The revision petitioner will surrender before the trial court within three weeks

from this date to serve out the sentence, on failure of which, steps shall be taken by the trial court to enforce the sentence and recover the amount

of fine or to enforce the default sentence.