IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 28TH JULY 2008 / 6TH SRAVANA 1930 Crl.Rev.Pet.No. 15 of 1998(B) ----------------------------- CRL.APPEAL NO.167/1994 of SESSIONS COURT, THRISSUR SC.2/1993 of PRL.ASSISTANT SESSIONS COURT, THRISSUR .................... PETITIONER/APPELLANT/THIRD ACCUSED: ------------------ KUNJUMON S/O.AUGUSTINE, MADAVANA HOUSE, VARANADU, P.O.CHERTHALA, ALAPUZHA DT. BY ADV. SRI.JOHN JOSEPH RESPONDENT/RESPONDENT/COMPLAINANT: ------------- STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = = = = = = = CRL.REV. PET. NO.15 OF 1998 = = = = = = = = = = = = = = = = = = = Dated this the 28th day of July, 2008 O R D E R ----------- The third accused in S.C. No.2 of 1993 on the file of the Assistant Sessions Judge, Thrissur for offences punishable under Sections 454, 394, 397, 398 read with 34 IPC challenges the conviction entered and the sentence passed against him concurrently by the courts below for the said offences. 2. The case of the prosecution can be summarised as follows: Accused 1 to 3, in furtherance of their common intention to rob P.W.3, committed house breaking armed with deadly weapons like dagger and air pistol and criminally trespassed into the residential house of P.W.3 bearing No.XI/13 of Valappad Panchayat at about 6.45 a.m. on 15.8.1991. They demanded money from P.W.3. When P.W.3 screamed aloud the second accused gaged his mouth with a towel and the third accused (Revision Petitioner) held tightly from behind the wriggling P.W.3 and when he tired to extricate himself CRL. R.P. NO.15 OF 1998 -: 2 :- from the clutches, the third accused cut him at his back, head and elbow with a dagger inflicting grievous injuries. When P.W.4, the wife of P.W.3, hurried into the room on hearing the screams of P.W.3, the first accused battered her on her head with the butt of the air pistol causing fracture of her head. The second accused then snatched away 5 soverigns of gold worth Rs.15,000/- from the neck of P.W.4. When P.Ws.3 and 4 raised a hue and cry the three accused persons fled from the scene. The accused persons who inflicted grievous injuries on P.Ws.3 and 4 using deadly weapons while committing robbery have committed the aforementioned offences. 3. Accused 2 and 3 faced with the trial. The first accused is still absconding. 4. On accused 2 and 3 pleading not guilty to the charge framed against them by the trial court for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 19 witnesses as P.Ws.1 to 19 and got marked 13 documents as Exhibits P1 to P13 and 16 material objects as M.Os.1 to 16. 5. After the close of the prosecution evidence, accused CRL. R.P. NO.15 OF 1998 -: 3 :- 2 and 3 were questioned under Section 313 (1)(b) of the Criminal Procedure Code with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their innocence. Since the learned trial Judge did not consider this to be a fit case for recording an order of acquittal under Section 232 Cr.P.C, accused 2 and 3 were called upon to enter on their defence and to adduce any evidence which they might have in support thereof. They did not adduce any defence evidence. 6. The learned Assistant Sessions Judge, after trial, as per judgment dated 2.8.1994 found accused 2 and 3 guilty of the offences punishable under Section 392/397 and 454 IPC. The revision petitioner-third accused was sentenced to undergo Rigorous Imprisonment for seven years under Section 392/397 IPC and for the offence under Section 454 IPC he was sentenced to undergo Rigorous Imprisonment for two years. The sentences were directed to run concurrently. On appeals preferred by second and third accused as Crl.Appeal Nos.166 and 167 of 1994 respectively before the Sessions Court, Thrissur, the lower appellate court as per common judgment CRL. R.P. NO.15 OF 1998 -: 4 :- dated 29.11.1997 confirmed the conviction entered and the sentence imposed against the revision petitioner. Hence this revision. 7. I have heard Advocate Shri John Joseph, learned counsel for the revision petitioner as well as Advocate Shri C.M. Nazar, learned Public Prosecutor, who defended the State. 8. Arguing the revision, learned counsel for the revision petitioner made the following submissions before me: The prosecution has failed to adduce satisfactory evidence to prove the identification of the revision petitioner. Admittedly, none of the prosecution witnesses had any previous acquaintance with the revision petitioner. P.Ws.2, 3 and 4 had only a fleeting glance of the revision petitioner and there was hardly sufficient light at that point of time for anybody to identify the features of the revision petitioner so as to distinctly remember him thereafter. Admittedly, no test identification parade has been conducted by the investigating agency to corroborate the identification of the revision petitioner by any of the prosecution witnesses. No recovery was also effected from the revision petitioner. Under these CRL. R.P. NO.15 OF 1998 -: 5 :- circumstances, the conviction recorded against the revision petitioner by the courts below cannot be sustained. 9. I cannot agree with the above submissions. P.W.1 is the brother of P.W.3. He resides in the property situated to the west of the house in which P.Ws.3 and 4 were residing. P.Ws.3 and 4, who are husband and wife, were residing in the house of occurrence at Valappad. P.W.1 does not have any direct knowledge about the occurrence. He got information from P.W.2, the maid servant of P.Ws.3 and 4, to the effect that at about 6.45 a.m. on 15.8.1991 the three assailants snatched the gold chain from the neck of P.W.4 after injuring P.Ws.3 and 4. He came running there and came to know that the assailants had escaped in Shamija bus which had left the place a few moments before. P.W.1 thereupon chased the bus in his own car along with some of the bystanders who had gathered at the place of occurrence. At a place called Karayamuttom the car intercepted the bus and the three assailants were caught from the bus and brought to the scene of occurrence from where the police was informed and accused persons were handed over to the police. 10. P.W.2, Chandramathy, is the kitchen maid of P.Ws.3 CRL. R.P. NO.15 OF 1998 -: 6 :- and 4. She was proceeding to the house of P.Ws.3 and 4 as usual to attend her daily routine. When she reached the house of P.W.3 she heard a loud scream from that house and saw three persons coming along the lane leading from the house of P.W.3 to public road. Those three persons hurriedly boarded Shamija bus which came along the public road. She then ran to P.W.3's house and saw P.Ws.3 and 4 lying profusely bleeding. Their daughter Haseena told her that three assailants trespassed into their dining room and had snatched a gold chain from the neck of P.W.4 after stabbing and beating P.Ws.3 and 4. They had also hit P.W.4 with the air pistol. P.W.2 suddenly went to the neighbouring house of P.W.1 and informed about the incident. She then took P.Ws.3 and 4 to the Medical College Hospital, Thrissur. P.W.2 had also identified accused 2 and 3 out of the three assailants who had made good their escape by boarding Shamija bus. 11. P.Ws.3 and 4, the husband and wife, were the victims of the robbery coupled with assault. Both of them had no difficulty in identifying accused 2 and 3 as the persons who had visited their house on the previous day. Both of them deposed that on the previous day evening also the assailants CRL. R.P. NO.15 OF 1998 -: 7 :- had visited their house. On the ill-fated day at about 6.00 a.m. they went out of the house to the cow shed for milking their cow. Thereafter at 6.30 a.m. P.W. 3 came to the dining room and while he was taking tea he saw the three persons who had visited his house on the previous day sitting in the dining room. When he questioned their presence there, the first accused took the air pistol and pressed it against his belly and demanded ransom money. When he screamed accused 2 and 3 pounced upon him. The second accused gaged his mouth with a towel and the third accused held tightly both his hands from behind. P.W.3 screamed aloud and wriggled out to extricate himself from the clutches of the intruders. At that time the third accused stabbed P.W.3 on his back, head and chest with M.O.1 dagger. On hearing the hue and cry, P.W.4, the wife of P.W.3, rushed into the house. Then accused 1 and 2 ran towards P.W.4. The first accused battered P.W.4 on her head with the butt of the air pistol. At that time the second accused snatched the gold chain from the neck of P.W.4. While P.Ws.3 and 4 were crying and screaming, the assailants made good their escape after leaving the dagger, air pistol, plastic rope, chilly powder, etc. CRL. R.P. NO.15 OF 1998 -: 8 :- 12. P.W.5 was a neighbour of P.W.3 who rushed to the house on hearing the hue and cry of P.Ws.3 and 4. While he was coming to the house he saw three persons hurriedly stopping Shamija bus and boarding the same. He had accompanied P.W.1 in his car for chasing the bus. They had caught the three assailants red handed from the bus and later handed over them to the police. 13. P.W.6 was the salesman of M/s.Jacob and Company, Ernakulam. He was examined to prove that the air pistol was purchased by the first accused from his shop on 3.7.1991 and that M.O.2 is the said air pistol. 14. P.W.7 is the person who was running a canteen at Kalamassery. He deposed that the third accused-revision petitioner had allegedly worked as a canteen boy upto 13.8.1991. He, however, did not support the prosecution. 15. P.W.8 was a merchant from whom the accused had allegedly purchased M.O.4 plastic rope. He also turned disloyal to the prosecution. 16. P.W.9., Shahul Hameed, was one of the Partners of a Firm where the second accused was working. 17. P.W.10 was the driver of Shamija bus in which CRL. R.P. NO.15 OF 1998 -: 9 :- accused 2 and 3 along with another person had made good their escape in the morning of 15.8.1991. He deposed that when the bus reached karayamuttom, a car overtook the bus and intercepted the same and the three assailants were taken away. 18. P.W.12 was the room boy of a lodge at Thriprayar. It was in that lodge that accused 2 and 3 had stayed during the night previous to the date of occurrence. 19. It is true that the investigating agency did not conduct an identification parade. But it must be remembered that the assailants had visited the house of P.W.3 and 4 on the previous day evening. P.W.3 saw them on the very next day morning and that too as intruders in his dining room and he had questioned their presence there. It was thereafter that the assault took place. During these occasions P.W.3 had ample opportunity to interact with accused 1 to 3 and identify their features enabling him to recognise accused 2 and 3 without any difficulty. Merely because P.W.3 had no previous acquaintance with accused 2 and 3 prior to the day previous to the occurrence it does not follow that his identification of accused 2 and 3 at the time of trial is weakened by the said CRL. R.P. NO.15 OF 1998 -: 10 :- fact. The trial Judge who had unique opportunity of watching the demeanour of the witnesses in the box had no difficulty in accepting the testimony of P.Ws. 1 to 4. It is true that soon after the occurrence, P.W.1, who had seen the 3 persons hurriedly escaping from the scene of occurrence, after a hot chase, caught hold of the three assailants from the bus in which they had made good their escape. Unless he was not familiar with the features of accused 1 to 3 it could not have been possible for him to catch accused 1 to 3 without any difficulty from the bus. The courts below have, after a careful evaluation of the oral and documentary evidence, entered the conviction against the accused. This Court, sitting in revision, will be loathe to interfere with the said conviction which is accordingly confirmed against the revision petitioner. 20. What now survives for consideration is the question regarding the adequacy or otherwise of the sentence imposed. The daring manner in which the accused persons came to the house of P.Ws.3 and 4 in the previous day evening and the daring manner in which they came to their house at a time when they went out of the house for milking the cow and that too with deadly weapons, the assault and snatching of gold CRL. R.P. NO.15 OF 1998 -: 11 :- chain from the neck of P.W.4 are all sufficient to justify the imposition of penal servitude by way of incarceration. The lower appellate court has also carefully evaluated the sentence as well as the legality of the same against the revision petitioner. I do not find any good reason to interfere with the said conviction entered and the sentence passed against the revision petitioner. In the result, the revision is devoid of merits and it is dismissed confirming the conviction entered and sentence concurrently passed against the revision petitioner. V. RAMKUMAR, JUDGE. vsv V. RAMKUMAR, J. ===================== CRL. REV. PET. NO.15 OF 1998 ===================== O R D E R ------------------------------------------- 28TH JULY, 2008