Accused in C.C. No.52/2012 on the file of Chief Judicial Magistrate Court, Kasaragod, is the revision petitioners herein. The appellants were charge-sheeted by the Sub Inspector of Police, Vidyanagar police station in Crime No.607/2011 of that police station for the offence under Section 393 of the Indian Penal Code. 2. The case of the prosecution in net shell was that, on 14.12.2011 at about 10.15 a.m., both the accused persons intended to commit robbery, attempted to snatch away the gold chain weighing 51/2 sovereigns owned by PW1, while she was getting down from the bus with No.KL- 13/F-4154 and thereby they have committed the offence punishable under Section 393 of the Indian Penal Code. When the accused were appeared before the court below, after hearing both sides, originally charge under Section 393 of the Indian Penal Code was framed and the same was read over and explained to the accused and they pleaded not guilty. In order to prove the case of the prosecution, PWs 1 to 6 were examined and Exts.P1 to P5 were marked on the side of the prosecution. After closure of the prosecution evidence, the accused were questioned under Section 313 of the Code of Criminal Procedure and they denied all the incriminating circumstances brought against them in the prosecution evidence. They have further stated that they have not committed any offence and they have been falsely implicated in the case. No defence evidence was adduced on their side. After considering the evidence on record, earlier the court below found that the offence under Section 393 is not attracted, but only an offence under Section 511 of 378 of the Indian Penal Code has been committed. So the charge was altered to Section 511 of 378 and it was again read over and explained to them and after complying with the formalities and considering the evidence, the court below found the revision petitioners guilty under Section 511 of 378 of the Indian Penal Code and convicted them there under and sentenced them to undergo simple imprisonment for eight months each and set off was allowed for the period of detention already undergone by them under Section 428 of the Code of Criminal Procedure.
3. Aggrieved by the same, the petitioners have filed Crl.Appeal No.203/2013 before the Sessions Court Kasaragod, and it was made over to the Additional Sessions Court-III, Kasaragod, for disposal and the learned Additional Sessions Judge dismissed the appeal by the impugned judgment, which is not challenged by the petitioners, by filing this revision. Since the Public Prosecutor has appeared for respondents, this court felt that, it can be admitted and disposed of today itself after hearing the counsel for the petitioner and the learned Public Prosecutor. So the revision is admitted and heard both sides today itself.
4. The counsel for the revision petitioners submitted that, there is no acceptable evidence adduced on the side of the prosecution to prove the guilt of the accused beyond reasonable doubt. Further no recovery was effected regarding the chain alleged to have been attempted to be stolen as well. Police filed a charge-sheet under Section 392 of the Code of Criminal Procedure, but the court below found no offence under Section 392 has been committed and it is thereafter the charge was altered and then convicted for a lesser offence. That also shows that, the prosecution case is not probable or believable. Further argued that, if this court found that, the appellants are guilty and does not want to interfere with the conviction, their only prayer is for the leniency in the sentence, as they are the first time offenders and they are aged only 30 and 26 years respectively.
5. The Public Prosecutor submitted that, the evidence adduced on the side of the prosecution proved beyond reasonable doubt that, the revision petitioners have committed the offences and the petitioners were caught red handed at the time when they attempted to commit the offence. The concurrent finding of the court below does not call for any interference.
6. The case of the prosecution as emerged from the prosecution witnesses was that, on 14.12.2011 at about 10.15 a.m., while PW1 was travelling in the bus with No.KL- 13/F-4154 from Kasaragod to Poinachi and when it reached Poinachi, she attempted to get down and at that time the accused persons fell on the body of PW1 and tried to snatch away the gold chain and she protected her chain and made hue and cry. The persons in the bus caught hold of the accused persons and it was informed to the police. Immediately PW6 came to the spot and arrested the accused persons and recorded Ext.P1 statement of PW1 and registered Ext.P3 First Information Report as Crime No.607/2011 of Vidyanagar police station under Section 393 of the Indian Penal Code. He had undertaken the investigation and he went to the place of occurrence and prepared Ext.P2 scene mahazar in the presence of PW4 and he had prepared Ext.P4 series arrest memos and also Ext.P5 body mahazar of the accused persons and completed the investigation and filed final report.
7. PW1 is the defacto-complainant whose chain the accused had attempted to snatch away. Since theft was not accomplished, the court below altered the charge under Section 511 of 378 of the Indian Penal Code, when it was found that, the offence of robbery has not been committed even as per the allegations made. The evidence of PW1 will go to show that while she was travelling in the bus and attempted to get down at Poinachi, the accused persons fell on her body and attempted to snatch away the gold chain. Since she had caught hold of the chain, their attempt failed. Persons including PWs 2 and 3 detained the accused and informed the matter to the police. PWs 2 and 3 also supported the case of the prosecution and corroborated the evidence of PW1 and deposed about the fact of catching hold of the accused persons and handing over them to PW6 when they realised the act of the accused persons. The evidence of PW6 will go to show that, on getting information regarding the fact, he rushed to the spot and arrested the accused persons from the spot and on the basis of the statement given by PW1, he registered the crime and conducted the investigation. So the evidence of PWs 1 to 3 will go to show that, the accused persons have attempted to commit theft of gold chain of PW1 and when their attempt failed, they have been caught hold of by the persons in the bus red handed and entrusted to the police. Since no theft was committed, the question of recovery does not arise. So the court below was perfectly justified in coming to the conclusion that, non-recovery of the chain attempted to have been stolen is not a ground for acquittal, especially when no theft was committed, only an attempt to commit theft was committed. So under the circumstances, the court below was perfectly justified in altering the charge and on the basis of evidence convicting the revision petitioners for the offence under Section 511 of 378 of the Indian Penal Code and the appellate court was also perfectly justified in confirming the finding as well. This court does not find any reason to interfere with the concurrent finding of the court below on the basis of the evidence adduced on the side of the prosecution.
8. As regards the sentence is concerned, the circumstances and also considering the nature of the offence committed, the trial has rightly come to the conclusion that the revision petitioners are not entitled for the benefit of Probation of Offenders Act and awarded a sentence of eight months simple imprisonment, which was confirmed by the appellate court. There is no evidence against the revision petitioner to show that, they are habitual offenders. They are first time offenders as well. Considering their age at the time when they have committed the offence, namely 30 and 26 years respectively, this court feels that, the sentence of eight months appears to be on the higher side and sentencing them to undergo simple imprisonment for three months will be sufficient and that will meet the ends of justice. So the sentence of 8 months simple imprisonment imposed by the learned magistrate and confirmed by the Additional Sessions Judge is set aside and the same is modified as follows:
Revision petitioners are sentenced to undergo simple imprisonment for three months each and set off was allowed for the detention already undergone by them under Section 428 of the Code of Criminal Procedure.
In the result, the revision petition is allowed in part. The order of conviction passed by the courts below against the appellants under Section 511 of 378 is hereby confirmed. But the sentence of eight months simple imprisonment is set aside and the same is modified as follows:
Revision petitioners are sentenced to undergo simple imprisonment for three months each, set off is allowed for the period of detention already undergone by them as they are under trial prisoners in this case under Section 428 of the Code of Criminal Procedure.
With the above modification of the sentence, the revision is allowed in part. Office is directed to communicate this order to the concerned court, immediately.
Sd/-
K. Ramakrishnan, Judge // True Copy// P.A. to Judge ss