UNNIKUTTAN v. NONE

CRL.R.P. NO. 1021/1998:2:seat and squeezed his neck pressing it towards the driver's seat,A2 snatched MO1 gold chain weighing 1.5 sovereigns worn byPW1 and A3 took out currency notes worth Rs.65/- and twoelectricity cards from the pocket of PW1. After pushing PW1 onthe road, the accused sped away in the autorickshaw of PW1towards Poonkunnam direction. The accused have therebycommitted the aforementioned offence.3.On the accused pleading not guilty to the chargeframed against them by the trial court for the aforementionedoffence, the prosecution was permitted to adduce evidence insupport of its case. The prosecution altogether examined 15witnesses as PWs 1 to 15 and got marked 11 documents as Exts.P1 to P11 and two material objects as Mos. 1 and 2.4.After the close of the prosecution evidence, theaccused was questioned under Section 313 (1)(b) Cr.P.C. withregard to the incriminating circumstances appearing against themin the evidence for the prosecution. They denied thosecircumstances and maintained their innocence. They did notadduce any defence evidence when called upon to do so. CRL.R.P. NO. 1021/1998:3:5. The learned Magistrate, after trial, as per judgmentdated 31.03.1997 found A1 to A3 guilty of the offence andsentenced each of them to rigorous imprisonment for three yearsunder Section 394 IPC. On appeal preferred by the revisionpetitioner as Crl. Appeal No. 114 of 1997 before the SessionsCourt, Thrissur along with the appeals preferred by the otheraccused persons, the learned Sessions Judge as per commonjudgment dated 07.11.1998 dismissed the petitioner's appealconfirming the conviction entered and the sentence passedagainst the revision petitioner. Hence, this Revision.6. I heard the learned counsel for the revision petitionerand the learned Public Prosecutor.7.The conviction recorded against the revision petitioneris for an offence punishable under Section 394 IPC which isattracted only if there is voluntarily causing of hurt in the act ofcommitting robbery. Even though the case of the prosecution isthat PW1 was assaulted by the three accused persons during thetrip of the autorickshaw from Kunnamkulam to Thrissur, PW1 didnot mention about any injuries having been sustained by him. CRL.R.P. NO. 1021/1998:4:Ext.P6 wound certificate also was not relied on by the court belowto hold that the accused had sustained injuries in the occurrence.That apart, the examination of the accused under Section 313(1)(b) Cr.P.C shows that no question was put to the accused tosuggest that PW1 had sustained injuries in the occurrence exceptputting Ext. P6 wound certificate. Neither the contents of thesame nor the testimony of the doctor who had allegedlyexamined PW1, was put to the accused. If so, the courts belowwere not justified in holding that PW1 sustained injuries so as toattract Section 394 IPC. If PW1 had not sustained any injuries,the conviction under Section 394 IPC cannot be sustained inwhich case the offence which is made out against the accused isone punishable under Section 392 IPC. The conviction underSection 394 IPC is accordingly dislodged. The revision petitioneris convicted of the offence punishable under Section 392 IPC.The conviction recorded by the courts below is modifiedaccordingly. 8.What now survives for consideration is the question asto what is the sentence which could be imposed on the revision CRL.R.P. NO. 1021/1998:5:petitioner. Even according to the prosecution, the revisionpetitioner was aged 20 years on the date of occurrence. Thelearned Public Prosecutor, after obtaining instructions, submittedthat the revision petitioner is not involved in any other case andthat there are no criminal antecedents against the revisionpetitioner. This Court had called for a report from the DistrictProbation Officer, Thrissur. In the report dated 25.06.2008submitted by the District Probation Officer, it is stated that thepetitioner is the sole bread winner of his family which looks uponhim for sustenance. It is further stated that the family of therevision petitioner is at the verge of a financial collapse that hisailing wife and mother are looking to the revision petitioner fortheir maintenance that the revision petitioner himself is eking hislivelihood by doing small coolie work including painting jobs. TheDistrict Probation Officer has recommended the release of thepetitioner on probation under Section 4 of the Probation ofOffenders Act, 1958. Under these circumstances, instead ofimposing a sentence on the revision petitioner, I am of the viewthat he should be released on probation for a specified period and CRL.R.P. NO. 1021/1998:6:it is only if the revision petitioner commits breach of theconditions of probation should he be called upon to receive asentence in this case. Accordingly, for the conviction underSection 392 IPC, the revision petitioner is directed to be releasedon probation of good conduct for a period of two years, for whichpurpose he shall appear before the trial court within three weeksfrom today and execute a bond on such terms as the Magistratemay fix. The revision petitioner is also directed to pay a sum ofRs.5000/- (Rupees five thousand only) to PW1 as compensationunder Section 5 of the Probation of Offenders Act, 1958. Thesaid compensation shall be deposited before the trial court withinone month from today.In the result, the conviction is confirmed and the revisionpetitioner is directed to be released on probation as above.Dated this the 19th day of August, 2008.V.RAMKUMAR, JUDGE.rv CRL.R.P. NO. 1021/1998:7: V. RAMKUMAR, J ------------------------------------CRL. R.P. No. 1021 of 1998 ---------------------------------------- 19th day of August, 2008ORDER CRL.R.P. NO. 1021/1998:8: