Ouseph Babu vs State Of Kerala

A.Muhamed Mustaque, J

This Revision Petition was filed by accused Nos. 1 to 5 in C.C.No.302/1990 on the file of the Judicial First Class Magistrate Court, Thiruvalla. Revision petitioner No.4, who was accused No.4, is no more. They had been convicted for an offence under Section 393 of the Indian Penal Code (IPC).

The Magistrate Court convicted Accused Nos.1 to 4 to undergo rigorous imprisonment for one year each for an offence under Section 393 read with Section 34 of the IPC. Accused No.5 was also convicted and sentenced to rigorous imprisonment of one year for an offence under Section 393 read with Section 109 of the IPC. The Appellate Court dismissed the Appeal filed by them. Challenging the conviction and sentence, this Revision Petition was filed. Pending the Revision, Appellant No.4 (Accused No.4) died.

Heard the learned counsel for the revision petitioners and the learned Senior Public Prosecutor.

The learned counsel for the revision petitioners argued in extenso and submits that no offence under Section 393 of the IPC has been made out. At the best, according to him, the allegation in the chargesheet would only constitute an offence under Section 356 of the IPC.

The learned Senior Public Prosecutor submits that the allegation in the chargesheet would clearly indicate the commission of an offence had been made out under Section 393 of the IPC, and no interference is warranted.

It is appropriate to refer to the prosecution allegation. According to the prosecution, on 01.05.1990 at 12.15 p.m., Accused Nos.1 to 4, in furtherance of their common intention to commit the robbery, came to the house of the de facto complainant and introduced themselves as the friends of one Thambi, who is the son of her husband’s brother Alexander. They asked about the way to reach his family house. Thereafter, they asked for water, and the 1st accused then expressed his desire to wash his face. After washing his face, the 1st accused caught hold of her from behind and gagged her mouth and nose with his hands, and he tried to snatch away the gold chain worn by her. On seeing it, PW2, an 11 years old shouted loudly and cried. When the neighbours came to the spot, all the accused ran away from the scene. Nobody has a case that PW1 has lost the gold chain. No other weapons were also found to have been used for the commission of the offence.

The Trial Court relied on evidence of PW1 to PW12. All the material witnesses identified A1 to A4 before the Court. I find no reason to overrule the involvement of A1 to A4 in the commission of the offence. A5 was also found to have abetted the offence. Apparently, A5 pointed out the house to A1 to A4. He is the son of the elder sister of PW3. PW3 also admitted the presence of A5 at the time of the incident. In such circumstances, I find no reason to intervene in the finding of fact that the abetment of the offence by A5.

The next question is in regard to the sentence. Section 393 of the IPC would be applicable when there is an attempt to commit robbery. Robbery is defined under Section 390 of the IPC. The essence of a robbery is that there must be theft or extortion. Going by the prosecution allegation, I find there was no theft or extortion, but only an attempt to commit theft as referable under Section 356 of the IPC. The charge ought to have been framed under Section 356 of the IPC. The provisions read thus:

“356. Assault or criminal force in attempt to commit theft of property carried by a person.-Whoever assaults or uses criminal force to any person, in attempting to commit theft on any property which that person is then wearing or carrying, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

Anyway, taking note of the fact that the offence was committed when the accused were at their tender age, I am of the firm view that a lenient stand can be taken in this matter regarding the sentence. It is for one more reason that A1 to A3 have already suffered 42 days of custody during the investigation stage. Setting off the custody period, I am of the view that a fine of Rs.5,000/- each can be imposed on them. Though A5 was released on anticipatory bail and has not suffered any custody, I am of the opinion that he can also be sentenced to pay a fine as above. Thus sentence to A1 to A3 and A5 has been modified to a fine of Rs.5,000/-(Rupees five thousand only) each. The same shall be paid within a period of one month from the date of receipt of a copy of this order. On failure, they shall undergo simple imprisonment for a period of two months. The bond furnished was accordingly ordered to be cancelled on serving the sentence as above.

This Criminal Revision Petition is disposed of as above.