IMPORTANT POINT
The court upheld the conviction for robbery under Section 392 IPC, confirming that identification by witnesses was credible despite procedural discrepancies.

JUDGMENT :

In this appeal filed under Section 374 (2) Cr.P.C., the appellants, who are accused 1 to 4 in S.C.No.349/2004 on the file of the Court of Session, Ernakulam, challenge the conviction entered and sentence passed against them for the offences punishable under Section 397 read with Section 395 and Section 412 IPC.

2. The prosecution case is that on 18/11/2003 at about 02:30 a.m. the accused persons eight in number waylaid the mini lorry bearing registration no.KL-Z/E-8442 driven by PW1 at Edappally in the National Highway bypass road and forcibly took away Rs.51,000/-. PW1 was proceeding to Manjeri for purchasing plantains. The accused persons who arrived in a car were armed with weapons like sword sticks. They caused damage to the lorry, entered into the cabin of the lorry from either side and pulled down PW1 as well as PW2, the cleaner of the lorry and by threatening PW1 stole Rs.50,000/- kept in the dashboard of the lorry and also Rs.1,000/- from the pocket of PW1. Hence, the accused persons, as per the charge sheet, were alleged to have committed the offence punishable under Section 397 IPC.

3. Crime no.418/2003, Kalamassery police station, that is, Ext.P1(a) FIR was registered by PW13, the then Sub Inspector, Kalamassery police station, based on Ext.P1 FIS of PW1. PW13 conducted investigation for a day and thereafter investigation was taken over by PW14, Circle Inspector, Kalamassery police station, who on completion of investigation submitted the final report before the court alleging the commission of the offence punishable under the aforementioned Section.

4. On appearance of all the accused persons, the jurisdictional magistrate after complying with all the necessary formalities contemplated under Section 209 Cr.P.C. committed the case to the Court of Session, Ernakulam. The case was taken on file as S.C.No.349/2004 and thereafter made over to the Additional Sessions Judge (Adhoc-II), Ernakulam for trial and disposal. The trial court after hearing both sides, framed a charge under Section 395 read with Section 397 IPC, which was read over and explained to the accused persons to which they pleaded not guilty.

5. On behalf of the prosecution, PW1 to PW14 were examined and Exts.P1 to P23 and MO.1 to MO.7 series were marked in support of the case. After the close of the prosecution evidence, the accused persons were questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence of the prosecution. The accused persons denied those circumstances and maintained their innocence.

6. As the trial court did not find it a fit case to acquit the accused persons under Section 232 Cr.P.C., they were asked to enter on their defence and adduce evidence in support thereof. DW1 was examined on behalf of the accused persons. No documentary evidence was adduced by the accused persons.

7. On consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found no evidence to find accused 5 to 8 (A5 to A8) guilty of the offence alleged against them and hence acquitted them under Section 235(1) Cr.P.C. However, accused 1 to 3 (A1 to A3) have been found guilty of the offence punishable under Section 397 read with Section 395 IPC and hence they have been sentenced to rigorous imprisonment for seven years each and to a fine of Rs.10,000/- each and in default of payment of fine, to undergo rigorous imprisonment for a period of six months each. The 4^th accused (A4) has been found guilty of the offence punishable under Section 412 IPC and hence has been sentenced to rigorous imprisonment for seven years and to a fine of Rs.10,000/- and in default to rigorous imprisonment for a period of six months. Set off under Section 428 Cr.P.C. for the period from 23/11/2003 to 4/3/2004 has been allowed. Aggrieved, A1 to A4 have come up in appeal.

8. The only point that arises for consideration in this appeal is whether the conviction ent