The conviction for dacoity under Section 395 IPC was upheld, establishing identity and recovery through credible evidence, despite challenges regarding prosecution evidence.

JUDGMENT :

A. BADHARUDEEN, J.

1. The conviction and sentence imposed against the 2^nd accused as per the judgment dated 24.09.2014 in S.C. No.1706/2011 on the files of the Additional District and Sessions Court-V, Kollam are under challenge in this appeal filed under Section 374 (2) of the Code of Criminal Procedure, 1973, by the 2^nd accused. The State of Kerala, represented by the Public Prosecutor is arrayed as the sole respondent herein.

2. Even though, this appeal has been filed as early on 01.12.2014, the counsel for the appellant was not available for hearing. Accordingly, Adv.Gayathri Krishnan is appointed as the Amicus Curiae, in this matter. But, her appointment is modified as that of State Brief.

3. Heard the learned State Brief, Adv.Gayathri Krishnan, appearing for the appellant and the learned Public Prosecutor, in detail. Perused the verdict under challenge and the records of the trial court.

4. Parties in this appeal shall be referred as ‘prosecution’ and ‘accused’ hereafter.

5. The prosecution case is that, at about 11.45 p.m. on 25.04.2007, while PW1 and PW12 were walking through the road, accused Nos.1 to 6 reached near them in motorcycles and beat PW12 with an iron rod causing hurt to him and robbed away gold ornaments worth Rs.25,000/- belonged to PW1. It is on this premise, the prosecution alleges commission of the offence punishable under Section 395 of the IPC , by accused Nos.1 to 6. Among the six accused persons, the 1^st accused was tried earlier, since the other accused were not available for trial. Thereafter, the case against accused Nos. 2, 3 and 6 was refiled as S.C. No. 1706/2011. The trial court recorded evidence confined to that of PWs 1 to 12, Exts.P1 to P11(a) and MOs 1 to 7. After the prosecution evidence, accused Nos.2 and 6 (arrayed in this case as accused Nos.1 and 3) absconded and their presence for further trial could not be secured. Accordingly, their case was split up and the trial against the appellant herein, who was the 2^nd accused in S.C. No. 1706/2011 (originally arrayed as the 3^rd accused in the crime) was proceeded. Even though, the accused was given opportunity to adduce defence evidence after questioning him under Section 313(1)(b) of Cr.P.C , he did not opt to adduce any defence evidence.

6. On appreciation of evidence, the trial court found that the 2^nd accused was guilty for the o under Section 395 of the IPC. Accordingly, the 2^nd accused was convicted for the said offence and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.5,000/-. In default of payment of fine, the 2nd accused was sentenced to undergo rigorous imprisonment for a period of three months more. Set off was allowed to the accused, as per law.

7. While challenging the conviction and sentence imposed by the trial court against the 2^nd accused/appellant, the learned State Brief would submit that, in this matter, the identity of the appellant, who is the original 3^rd accused, is not proved with certainty, to guilty for the offence alleged to be committed by the prosecution. That apart, no records produced by the Police to show the arrest of the 2^nd accused/appellant. Therefore, his arrest, in fact, is not proved. Apart from that, it is argued that, even though MOs 1 to 3 alleged to be robbed away by the accused were taken into custody, on disclosure of the same by the 2^nd accused, under Section 27 of the Evidence Act, the owner of the shop where from the recovery effected was not examined. Accordingly, the learned State Brief canvased acquittal of the 2^nd accused/appellant, finding flaws in the prosecution evidence.

8. Dispelling this argument, the learned Public Prosecutor arg