IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 13TH JUNE 2008 / 23RD JYAISHTA 1930 CRL.A.No. 1238 of 2007() ------------------------ SC.228/2006 of ADDL. SESSIONS COURT (ADHOC), PATHANAMTHITTA CP.10/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ADOOR .................... APPELLANT: 4TH ACCUSED: ----------------------- GIRISH, S/O. AYYAPPAN ACHARI, NELLIKKUNNU VEEDU, VAZHAMUTTAM MURI, OMALLOOR, PATHANAMTHITTA. BY ADV. SRI.V.SETHUNATH RESPONDENTS: COMPLAINANT: ------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.INNOCENT FRANCIS PAPPALI,STATE BRIEF PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/06/2008, ALONG WITH CRLA NO. 1594 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J ---------------------- Crl.A.Nos.1238 & 1594 of 2007 ---------------------------------------- Dated this the 13th day of June 2008 J U D G M E N T These appeals are preferred by the four accused persons in a prosecution for offences punishable under Sections 357 and 397 read with 34 I.P.C and Section 411 read with 34 I.P.C. Accused/ appellants 1 to 3 have been found guilty and convicted for offences punishable under Sections 457 and 397 I.P.C and were sentenced to undergo R.I for a period of three years and seven years respectively. Accused No.4 who has preferred Crl.A.No.1238/07 was found guilty, convicted and sentenced under Section 411 I.P.C to undergo R.I for a period of one year and to pay a fine of Rs.25,000/-. Default sentence has also been imposed. 2. The crux of the allegations raised by the prosecution is that accused 1 to 3 on 10/8/2005 at about 2.30 a.m gained access into the house of PW1, a woman by causing damage and destruction to the kitchen door of her house using MOs 1 and 2. After having so gained access into the house, they allegedly assaulted and used force against PWs 1 and 2, mother and Crl.A.No.1238 & 1596 of 2007 2 daughter. PW2's husband is employed abroad and an infant child born to PW2 was also available in the house. The assault was to take away by force ornaments which were worn by PWs 1, 2 and the child. PWs 1 and 2 allegedly cried aloud in fear; but no one came to their rescue. PWs 1 and 2 had allegedly seen accused 1 to 3 in the torch light which was flashed by accused No.2 when the incident was going on inside the house. PW1 informed her relatives after the incident and on the next morning lodged the F.I.S before the police. Crime was registered and investigation was conducted. In the course of investigation, accused 1 to 3 were arrested in some other crime. Their interrogation revealed their complicity in this crime. Accordingly, they were arrested in this crime also. They were interrogated. They allegedly made confession statements. On the basis of information furnished by accused No.1 in the course of investigation, the police were led to the fourth accused from whose possession gold ingot (MO4) weighing 48.2 gms was recovered under Ext.P5 seizure mahazer. PW8 is a person to whom the fourth accused allegedly used to sell gold ornaments. The fourth accused was later brought on the array of accused on Crl.A.No.1238 & 1596 of 2007 3 the allegation that he had received the stolen gold ornaments from the first accused and had melted them and had kept them in gold ingot form. MO4 is the gold ingot seized under Ext.P5 from the fourth accused. Investigation was completed and final report was filed by PW10. 3. Cognizance was taken. The case was committed to the court of Session. Charges were framed against the appellants. They pleaded not guilty and thereupon prosecution examined PWs 1 to 10 and proved Exts.P1 to P9. MOs 1 to 4 were also marked. 4. PWs 1 and 2 as stated earlier are the victims. They had suffered injuries in that incident. Ext.P1 is the F.I.S lodged in the next morning. In that it is stated clearly that PWs 1 and 2 will be able to identify accused 1 to 3. PWs 3 and 4 are neighbours/relatives who stay near the residence of PW1. Both of them came to know of the incident only on the next morning and on that night when the incident took place both of them had not come to know of the incident. PW5 is the doctor who examined PWs 1 and 2 and issued Exts.P3 and P4 wound certificates. PW1 was allegedly hit on the face by the first Crl.A.No.1238 & 1596 of 2007 4 accused and she had suffered a grievous hurt - loss of tooth. The second accused had allegedly flashed the torch while the incident was going on. It was the first accused, who allegedly took away the ornaments from PWs 1 and 2 who were wearing them. Third accused had allegedly removed the ornament which the infant child was wearing at the time of the incident. PW5 doctor had examined PWs 1 and 2 and issued Exts.P3 and P4. Injuries suffered by PWs 1 and 2 are not noted in Exts.P3 and P4. PW6 is an attester to Ext.P5 under which MO4 gold ingot was seized by the investigating officer when the fourth accused allegedly produced the same before the police. PW7 is the appraiser who allegedly had assessed the purity of gold at the time of seizure. PW8 is a person who stated that he used to purchase gold from the fourth accused and used to convert them into gold ingots. PWs 9 and 10 are police officials who had roles to play in the registration of the crime, its investigation, the arrest of the accused and recovery of the gold ingots. Exts.P6 to P9 are reports submitted to the court by the investigating officers. MOs 1 and 2, as stated earlier, are the weapons used for gaining access into the house while demolishing of the Crl.A.No.1238 & 1596 of 2007 5 wall/door. MO3 is a towel found at the scene and it is alleged to be the one left behind by the miscreants at the scene of the crime. MO4, as stated earlier, is the gold ingot allegedly seized from the possession of the fourth accused. 5. The accused denied all circumstances when they were examined under Section 313 Cr.P.C and in the course of cross- examination of prosecution witnesses. In the course of cross- examination, they took a stand that no theft whatsoever had taken place and PWs 1 and 2 are making up stories of the alleged theft. Accused 1 to 3 contended that they were harassed and vexed by the police in the course of investigation. They were kept in illegal custody. Accused 1 to 3 would assert that they were kept in custody for a long period of time and were produced before court after implicating them in many cases. Accused No.4, in turn, asserted that he was taken into custody and pressurised to hand over gold ingots to the police. He refused. His father, ultimately, was constrained to hand over the gold ingots and on the basis of that ingot seized by them this false case has been initiated against the fourth accused. All of them contended that they were innocent and were entitled for Crl.A.No.1238 & 1596 of 2007 6 acquittal. 6. The learned Judge, on an anxious consideration of all the relevant inputs came to the conclusion that the evidence of identification of accused 1 to 3 by PWs 1 and 2 can be safely accepted. The learned Judge further placed reliance on the recovery under Section 27 of the Evidence Act which was allegedly effected by PW9 on the basis of Ext.P5(a) confession statement given by the first accused. The learned Judge, it further appears chose to believe the version that the first accused had sold the gold ornaments to the fourth accused and he had converted the same into gold ingots and kept the same in his possession with the requisite culpable knowledge and intention. The learned Judge, in these circumstances, proceeded to pass the impugned judgment. 7. Before me, the learned counsel for the appellants as also the learned Public Prosecutor have advanced arguments. The learned counsel for the appellants/accused 1 to 3 assails the impugned verdict of guilty, conviction and sentence on various grounds. I shall consider the contentions of Accused 1 to 3 first. Crl.A.No.1238 & 1596 of 2007 7 8. First of all, it is contended that in the darkness of the night when admittedly there was power failure in the house of PW1, PWs 1 and 2 could not have correctly identified accused 1 to 3. Even going by their version, there was only torch light and it would be unreasonable and puerile to assume that PWs 1 and 2 were in a position to identify accused 1 to 3. They were not known to each other earlier and in these circumstances the claim of PWs 1 and 2 that they had identified the accused persons at the scene of the crime cannot be accepted. The learned counsel further points out that there is no test identification parade conducted to corroborate substantive piece of evidence of identification of accused 1 to 3. The evidence of PWs 1 and 2 do not inspire and in the absence of an earlier test identification parade such oral evidence about identification in court deserves to be thrown overboard, submits the learned counsel for the appellants 1 to 3. 9. The learned counsel for the appellants 1 to 3 further contends that the evidence of recovery cannot be believed at all. In the recovery mahazer, the fourth accused, whose position on the date of recovery (5/10/2005) was only that of a witness and Crl.A.No.1238 & 1596 of 2007 8 not an accused - he having been brought on the array of accused only on 09/10/2005 has not been obtained. This tallies with the case of the fourth accused that he had refused to hand over any gold ingot as demanded by the police and for that reason he was vexed and harassed. The fact remains that the fourth accused is not shown as a person who had signed Ext.P5 recovery mahazer. 10. The learned counsel for all the accused further contends that even if the entire evidence of recovery under Section 27 of the Evidence Act were believed, there is significantly no legal evidence to connect the stolen gold ornaments to MO4 gold ingot which has been seized and produced before court. There is not a scintilla of evidence which can establish the nexus between the stolen ornaments and the recovered gold ingot, argue the learned counsel. The learned counsel point out that there is significant difference in weight between the recovered ingot and the stolen ornaments. Going by the weight, the identity of the stolen gold ornaments and their nexus with the recovered gold ingot cannot be established. There is no nexus between the two. While about 120 grams of gold ornaments were lost recovery is only of about 48 grams. No Crl.A.No.1238 & 1596 of 2007 9 witnesses have given evidence about the nature of the ornaments purchased by accused No.4 from Accused No.1 and it is impossible to establish the nexus between the gold ingot and the stolen ornaments by the description given by any of the witnesses of the gold ornaments purchased by accused No.4 from the first accused. That crucial nexus having not been established, no reliance can be placed on the evidence of recovery, contend the counsel. 11. The learned counsel for the fourth accused further contends that even if the entire allegations made by witnesses and even the allegations in the charge are taken into consideration, there is nothing to show that the fourth accused knew that the ornaments are stolen articles or that he had not purchased the ornaments by paying reasonable price for such ornaments. In these circumstances, at any rate, fourth accused cannot be mulcted with liability under Section 411 I.P.C, contends the learned counsel for the fourth accused. 12. I have considered all the relevant inputs. There is unnecessary labour on the part of the accused during cross- examination to suggest that no incident at all had been taken Crl.A.No.1238 & 1596 of 2007 10 place in the house of PWs 1 and 2 and they are inventing false stories. Less said about this contention the better. The scene mahazer which shows damage on the house, the prompt F.I.S Ext.P1 lodged on the next day, the nature of damage suffered by the house described in Ext.P1, the nature of the injury suffered by PWs 1 and 2 described by PW5 in Exts.P3 and P4 do all clinchingly show that a theft had taken place at the house of PWs 1 and 2 on the relevant date and that gold ornaments were thieved in that incident. I had no semblance of doubt and I can safely concur with the conclusion of the court below that theft had taken place; that the house was broke open and PWs 1 and 2 had suffered injuries in the course of that incident. 13. What remains to be ascertained is whether the identification of accused 1 to 3 by PWs 1 and 2 can be believed or not. PWs 1 and 2 claim to have identified accused 1 to 3 at the scene of the crime. Going by description in the scene mahazer it was a small room in which PWs 1 and 2 along with their child was sleeping. The accused had come into that house. It is reasonable to assume that they, whoever they be, must also have needed light to carry out their mission. The evidence that Crl.A.No.1238 & 1596 of 2007 11 one of the miscreants had a torch with them is thus found to be absolutely reasonable and rhyming well with probabilities. PWs 1 and 2 had occasions to see the miscreants in close quarters. The miscreants had even talked to them on that evening threateningly. They were available in the room for some length of time. Torch must have been flashed and the direct light from the torch as also the reflected light from the surface of the room must certainly made it possible for PWs 1 and 2 to see the miscreants. PWs 1 and 2 are not shown to have any motive, ill- will or animosity against the accused persons to persuade them to falsely assert that they were miscreants. Of course, the possibility of PWs 1 and 2 bona fide believing the version of the police and attempting to identify accused 1 to 3 must be considered carefully. In the facts and circumstances of this case, I find absolutely no reason to doubt or discard the oral evidence of PWs 1 and 2 about their ability to identify accused 1 to 3. The occasion must also be taken note of. Into the privacy and peace of the home, miscreants had come in. They had gained access by using force. They had assaulted the victims and had taken away the gold ornaments from them. They had demanded that the Crl.A.No.1238 & 1596 of 2007 12 ornaments be given to them. All these must have gone into the psyche of PWs 1 and 2 and whatever they saw on that fateful night must have remained etched in their memory. It would be idle now to assume that they would not have been able to identify the miscreants whom they had seen at such close quarters in the light which was available in that small room when the torch was flashed. I find it difficult to accept the assertion that PWs 1 and 2 would not have been in a position to identify the miscreants and that their identification of Accused 1 to 3 as the miscreants must hence be rejected. 14. The fact that PW1 was admittedly having defective eye sight and she used to wear spectacles is relied on by the counsel. I am unable to agree that merely because a person wears spectacles it will have to be assumed that a person would not be able to identify miscreants in such a situation. There is nothing to show that PW1 suffered from any such gross visual difficulty to suggest that it would be impossible for her to identify the miscreants. A test identification parade has not of course been conducted. The incident took place on 10/8/2005 and the accused were arrested only on 03/10/2005. PWs 1 and 2 Crl.A.No.1238 & 1596 of 2007 13 assert that they had seen accused 1 to 3 at the police station and were able to identify them when police men showed them. Such prior identification by itself may not be of grave probative value to corroborate the substantive evidence of identification in court. But I am of the opinion that it would not be correct statement of the law that every such substantive evidence of identification in court must invariably and necessarily be corroborated by evidence of earlier identification in a test identification parade conducted by the Magistrate. That certainly is not the law. The mere fact that test identification parade has not been conducted will not persuade courts to reject the evidence of witnesses in an omnibus manner. Possibility of identification, the broad probabilities of correct identification, the absence of any motive to falsely implicate must all be taken into account while considering the evidence of identification tendered by PWs 1 and 2. Even in Ext.P1 it is seen asserted that they shall be in a position to identify the miscreants. Within a period of two months, the accused were arrested and PWs 1 and 2 had opportunity to seem them at the police station. They had given clear evidence of identification of the accused with reference Crl.A.No.1238 & 1596 of 2007 14 witnesses to specific overt acts when they were examined in courts. Absence of test identification parade does not persuade me to reject such evidence of identification tendered by PWs 1 and 2. 15. Though attempt is made to argue that there is incongruity and inaccuracy and inter se contradictions in the evidence of PWs 1 and 2 about the specific overt acts of Accused 1 to 3, I am of the opinion that there is vice in such conclusions of the lower court. The first accused had hit PW1. He had forcibly snatched away the ornaments worn by PW2. The second accused had lighted the torch and the third accused had taken away the ornaments worn by the child. This is the consistent evidence of PWs 1 and 2. The alleged congruity in the evidence of PWs 1 and 2 about the specific overt acts of accused 1 to 3 cannot also persuade this court to reject the evidence of PWs 1 and 2. 16. The learned counsel has argued that the attention of no neighbour was drawn to the place of incident at the relevant time though it is seen that there are close neighbours. PWs 1 and 2 had stated that they had cried in fear when the incident Crl.A.No.1238 & 1596 of 2007 15 took place. But the investigating officer was not able to trace and examine before court any local neighbour who had come to the scene of the crime at the relevant time. Even PWs 1 and 2 do not have a case that any other neighbour had come to the scene of the crime at the relevant time. 17. That aspect is relevant only to ascertain whether an incident as alleged had taken place or not. I have already adverted to the fact that there is not a semblance of doubt on that aspect on the totality of evidence available. In that state of mind PWs 1 and 2 may have felt that they cried aloud. In their state of mind at that point of time would certainly have felt so but much of voice may not have come out and the mere fact that the attention of the neighbours was not attracted to the scene cannot persuade me to hold that no incident whatsoever alleged had taken place. 18. I do, in these circumstances, come to the conclusion that the oral evidence of PWs 1 and 2 about the theft that had taken place, the manner in which it has taken place and it was accused 1 to 3 who were the miscreants who had access to the house can safely be accepted. Crl.A.No.1238 & 1596 of 2007 16 19. We shall now come to the case of the fourth accused. The case against the fourth accused is built on the confession statement of the first accused and the consequent recovery effected under Ext.P5 of M.O4 gold ingots. First of all I must note that there is no specific evidence of any nexus between the gold ingot seized and the gold ornament thieved. There is no evidence whatsoever on this aspect. We go by any parameters it appears to be impossible to come to a specific conclusion that the gold ingot M.O4 must have come out of the gold ornaments thieved or any part of it. It may have been. But there is no evidence to come to a safe conclusion that it had come out of such thieved ornaments. 20. I find merit in the contention of the learned counsel for the fourth accused that he was not present at the time when the recovery was effected. According to him it was his father who had compelled to hand over the gold ingot to secure his release. The fact that in Ext.P5 recovery mahazar the signature of the fourth accused has not been obtained notwithstanding the fact that he was not an accused at that point of time is in the circumstances of the case of certain relevance. In the totality of Crl.A.No.1238 & 1596 of 2007 17 facts and circumstances, I am of opinion that there is no satisfactory indication to suggest culpability of the fourth accused. From the evidence of PW8, it would appear that the fourth accused has handed over the gold ornaments to PW8 and he had melted such ornaments and had kept the same with PW8. Surprisingly the prosecution has no case that the gold ornaments thieved from the possession of Pws 1 and 2 had been handed over by the fourth accused to PW8 for so melting. There is no case as such at all. In fact Ext.P5 would show that it was from the fourth accused that MO4 was recovered under Ext.P5. I have already adverted to the absence of signature of the fourth accused in Ext.P5 - that is at a time when he was not on the array of accused and must have been reckoned only as a witness. 21. I am, in these circumstances, satisfied that there is no worthwhile satisfactory or safe evidence to sail to a conclusion of culpability against the fourth accused. 22. No other contentions are raised on merits. I am, in these circumstances, satisfied that the challenge raised by the 4th accused can be upheld; whereas the challenge raised by accused 1 to 3 only deserves to be turned down. Crl.A.No.1238 & 1596 of 2007 18 23. A contention is raised that the sentence imposed on accused 1 to 3 is excessive. The allegations reveal a serious crime. Such a theft/robbery must certainly raise eyebrows. It upsets the peace and tranquility of home. It instills apprehension of danger and insecurity in the minds of the members of the polity. The accused are shown to have been involved in other similar crimes also. I am, in these circumstances, satisfied that sentences imposed on accused 1 to 3 do not warrant any interference. The sentence imposed is also found to be absolutely justified considering the nature of the culpable acts and the proof that has been secured. 2. In the result: i) Crl.A.No.1594/2007 is dismissed. The impugned verdict of guilty, conviction and sentence imposed on accused 1 to 3/appellants are