Kerala High CourtAneeshkumar vs The State Of Kerala on 22 June, 2013IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT:

          THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH

     WEDNESDAY, THE 8TH DAY OF MARCH 2017/17TH PHALGUNA, 1938

                 Crl.Rev.Pet.No. 1572 of 2013 ()
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AGAINST THE JUDGMENT IN CRA 432/2011 of ADDL.SESSIONS JUDGE-
I,MAVELIKKARA DATED 22-06-2013

AGAINST THE JUDGMENT IN SC 494/2008 of ASSISTANT SESSIONS JUDGE,
CHENGANNUR

REVISION PETITIONERS/APPELLANT/ACCUSED NO. 2 & 3:
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          1. ANEESHKUMAR, AGED 32 YEARS
            S/O. SOMAN, KONARI PUTHUVAL VEEDU, KONUMADOM COLONY,
           THEKKEKARA KIZHAKKUM MURI, PALLIPADU VILLAGE, ALAPPUZHA
           DISTRICT.

          2. JAYAN, AGED 36 YEARS
            S/O. GOPALAKRISHNAN ACHARI, MALAYIL, THOPPIL PUTHEN
            VEEDU, PARUMALA BHAGAM, PARUMALA MURI, KADAPRA VILLAGE,
            ALAPPUZHA DISTRICT.


            BY ADV. SRI.A.C.DEVY

RESPONDENT/RESPONDENT/COMPLAINANT:
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            THE STATE OF KERALA
            REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
            KERALA, ERNAKULAM, KOCHI-31.


             BY PUBLIC PROSECUTOR SMT.K.K.SHEEBA

       THIS CRIMINAL REVISION PETITION  HAVING BEEN FINALLY HEARD
ON  08-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:



                      K.P.JYOTHINDRANATH, J.
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                           Crl.R.P.No.1572 OF 2013
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                      Dated this the 8th day of March, 2017

                                      ORDERThis criminal revision petition is filed against the judgment of

conviction entered into by the court below in S.C.No.494/2008 on the

files of the Assistant Sessions Judge, Chengannur which was confirmed

in Crl.Appeal No.432/2011               by the Additional Sessions Judge I,

Mavelikkara. The appellants are the accused Nos. 2 and 3 in the

original crime. The conviction is underSection 399and402of IPC.

The petitioners are sentenced to undergo rigorous imprisonment for six

months underSection 399of IPC as well as to pay a fine of Rs.1,000/-.

UnderSection 402of IPC, the petitioners are sentenced to undergo

rigorous imprisonment for six months and to pay a fine of Rs.1,000/-.

Originally, the appellants were also convicted underSection 27of the

Arms Act which was set aside by the appellate court.Crl.R.P.No.1572/2013                22.     The facts necessary for disposal of this revision petition is

as follows :Accused 10 in number were seen made preparation for

committing dacoity and they were found carrying dangerous weapons

like iron rod, sword stick for the purpose of committing dacoity on

14.5.2007 at about 4.15 a.m. at Kollakadavu junction in Mavelikara-Chengannur public road and thereby committed the above offences.3.     The prosecution examined six witnesses and Exts.P1 to P8

and MO1 series and MO 2 were marked and thereafter convicted the

accused as stated above which was confirmed by the appellate court,

except the conviction underSection 27of the Arms Act. In this case,

FIR was registered by the Police on 14.05.2007 at 5.30 hours. It

reached the court on 14.05.2007 at 2.30 p.m.. It is a suo motu FIR.

According to the F.I.Statement, after patrol duty, when the police jeep

was coming back to the station at about 4.15 hours, when they reached

at Kollakadavu bridge on the middle of the bridge, the Police party saw

ten persons equipped with sword, iron rod, short stick etc. They saw the

accused in the light of the head light. It is further stated that the PoliceCrl.R.P.No.1572/2013                 3followed and the C.I. of Police who were also nearby conducting

vehicle checking also joined and three persons were arrested. It is the

case that on arrest, they even threatened using the weapons. The names

were revealed and thereafter an inadmissible portion of the statement

made to the Police incorporated in the F.I.Statement. It is also stated

that the names of the other accused persons were also provided by the

accused who were arrested and the said names were also incorporated

in the F.I.Statement and the crime is registered. Upon the registration

of the said crime, an investigation is conducted. After investigation, on

6.9.2007, final report was filed against the accused. The court received

the charge and committed the matter to the Sessions Court which was

made over to the Assistant Sessions Judge, Chengannur and             the

appellants herein were tried and        convicted.   Aggrieved by the

conviction, the appellants preferred       appeal which was also not

successful. Hence this revision petition is filed.4.     The main argument advanced before me is that the

ingredients of the offence is not made out. Even if, for argument sake

it is stated that the weapons were seized from the possession of theCrl.R.P.No.1572/2013                  4revision petitioners/accused, it cannot be said that ingredients of the

offence are made out.       It is the submission that it is a case where a

false case has been foisted against the revision petitioners herein. To

buttress the said argument, the learned counsel submitted before me

that as per the prosecution case, the incident occurred on the bridge

area. From there when they saw the Police coming, they ran away. It is

the case of the prosecution that on the vicinity, the Circle Inspector and

the party was also conducting checking of the vehicles. The S.I. of

Police and the C.I. of Police arrested the accused. It appears that the

accused were seen very near to the area allegedly where the C.I. of

Police and party were conducting vehicle checking.        In that case, the

jeep will be on the side of the road and the presence of the Police party

will be apparent and evident.      This aspect has to be considered while

appreciating the case. It is also submitted that the appreciation of the

evidence by the courts below is not correct.5.     The learned Public Prosecutor submitted that only if there

is perversity or illegality, then only a re-appreciation is warranted. In

this case, the courts below appreciated the evidence and came to aCrl.R.P.No.1572/2013                5conclusion that the revision petitioners committed the offence. A

re-appreciation is not warranted especially when it can be seen that the

background of the accused were not clean.6.     In this case, PW1 is a mahazar witness. He deposed that he

know accused Nos. 2 and 3 and he is an attestor to the mahazar and he

identified his signature therein. He further deposed that he can identify

the weapons seized from the accused and he identified MO1. He also

identified material object MO2 and during cross examination, he

deposed that he along with his friend was going to temple. He also

deposed that he understood the names of the accused while the Police

asked their name. PW2 is the Police Constable who was in the night

patrol duty and according to him, the accused were arrested after

chasing them and his evidence regarding confessional part incorporated

in the statement cannot be looked into. PW3 also is a Police Constable

who was in the patrol party. He also supported the prosecution and the

confessional part deposed to by this witness is not admissible in

evidence. PW4 is the Sub Inspector who led the patrol party and he

deposed regarding the incident and he further deposed that the accusedCrl.R.P.No.1572/2013                6were seen in the light of the jeep on the bridge area and they were

arrested and the confessional part deposed to by this witness is not

admissible in evidence. He further deposed that the crime is registered

and the weapons seized are forwarded to the court and he also

identified the weapons seized as MO1 and 2. PW5 is also an attestor to

the mahazar of seizure. He supported the prosecution. He identified

Accused Nos. 2 and 3. PW6 is the Police Officer who filed the charge.7.     In this case, the main argument of the learned counsel is

that appreciation of the evidence is perverse. The facts now seem to be

proved before the court is that accused were arrested with weapons and

the version of the prosecution is that there were ten persons. This fact

is seen proved. The confessional part deposed to by the witnesses

cannot be looked into in law in the light ofSections 25and26of the

Evidence Act. Here is a case where the trial court as well as the

appellate court found that accused committed the offence.        A re-

appreciation of the offence is ordinarily not warranted. But if the

ingredients of the offence is not made out, it will patently affect the

conviction.     Under such circumstances, the    sections under whichCrl.R.P.No.1572/2013                 7conviction are entered into are perused.8.Section 399of IPC reads as follows :399: Making preparation to commit dacoity

Whoever makes any preparation for committing dacoity, shall be

punished with rigorous imprisonment for a term which may extend to

ten years, and shall also be liable to fine.9.Section 402of IPC reads as follows :402:Assembling for purpose of committing dacoity

      Whoever, at any time after the passing of this Act, shall be one of

five or more persons assembled for the purpose of committing dacoity,

shall be punished with rigorous imprisonment for a term which may

extend to seven years, and shall also be liable to fine.10.    The difference between Sections 399 and 402 appears to be

that under Section 402 mere assembling of 5 person or more without

preparation is enough i.e. preparation for committing dacoity is an

essential ingredient of Section 399, whereas under Section 402, an

assembly for the purpose of committing dacoity is sufficient i.e. an

assembly which can be for the purpose of committing dacoity commitsCrl.R.P.No.1572/2013                8an offence underSection 399of IPC only when some preparation for

the execution of the object of the assembly is done/committed. Here

the only aspect now stands proved is that there were about 10 persons.

The prosecution case is that they were assembled therein for the

purpose of committing dacoity. I have perused the questioning underSection 313of Cr.P.C. It is only a total denial. It can be seen that the

evidence of the Police Officers regarding arrest and seizure is

believable. The evidence of prosecution witness is that they assembled

for committing dacoity. When there are recovery of the weapons and if

they are assembled therein for any other purpose, it is the duty of the

said accused to bring out for what purpose they assembled therein i.e.

when five or more people are seen assembled with weapons in an odd

hour and they ran away when they saw the Police and the prosecution

case is that they were assembled therein for the purpose of committing

decoity, the ingredients of Section 402 can be treated as proved. But at

the same time, no evidence forth coming to show any preparation they

had made after such an assembly to commit an offence underSection

399of IPC or in other words, the preparation to commit the dacoity hasCrl.R.P.No.1572/2013                9to be proved by the prosecution. Such elements or ingredients to prove

the preparation is not therein i.e. this court relied upon the weapon

and the odd hour and the assembly to come to a conclusion that they

had committed an offence underSection 402of IPC. To come to a

conclusion that they had committed an offene underSection 399of

IPC, a further evidence regarding preparation is necessary, that is

lacking in this case. Hence it can be only stated that the conviction

underSection 399of IPC will not lie and hence it is hereby set aside.

The conviction underSection 402of IPC is hereby upheld.11.    The next point to be considered is regarding the sentence.

After perusal of the judgment, it can be seen that even though an

offence under Section 399 is a major offence and Section 402 is a

minor one, six months imprisonment is imposed on both heads. Now

major offence has been found not committed by the appellants. There

is only a minor offence seen committed i.e. offence underSection 402of IPC. Under such circumstances, the sentence imposed is also

modified and reduced as simple imprisonment for three months underSection 402of IPC. The revision petitioners shall also pay a fine ofCrl.R.P.No.1572/2013                 10Rs.1,000/- each with default simple imprisonment for one month.

Thus, the conviction underSection 399of IPC is hereby set aside. The

conviction underSection 402of IPC is upheld.         The sentence is

modified as simple imprisonment for three months and to pay a fine of

Rs.1,000/- with default simple imprisonment for one month.         The

revision petitioner is entitled for set off.The revision petition is partly allowed as above.K.P.JYOTHINDRANATH
                                                   JUDGE




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