IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 11TH DECEMBER 2009 / 20TH AGRAHAYANA 1931 CRL.A.No. 1002 of 2009(A) ------------------------- SC.70/2008 of THE IVTH ADDL. SESSIONS COURT, ADHOC-II, THODUPUZHA .................... APPELLANT: -------------- PANNI LAL, C.NO.3827, CENTRAL PRISON, TRIVANDRUM. BY ADV. UNNI.K.K (STATE BRIEF) RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. ADV. PUBLIC PROSECUTOR SRI.C.M. NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * CRL.APPEAL 1002 OF 2009 * * * * * * * * * * * * * * * * * * Dated : 11-12-2009 JUDGMENT In this appeal preferred from the Central Prison, Thiruvananthapuram, the appellant Pannilal, who was the 4th accused in S.C. No. 70 of 2008 on the file of the 4th Addl. Sessions Court, (Adhoc - II), Thodupuzha, challenges the conviction entered and the sentence passed against him for offences punishable under Sections 450, 394 and 397 read with Sec. 34 and an offence under Section 3 punishable under Sec. 25 (1-B)(a) the Arms Act, 1959. 2. The case of the prosecution can be summarised as follows:- On 5-4-2007 at about 12.30 a.m. accused Nos. 1 to 4 (Prakash, Bhuvan, Ram Outhan Chouthari, Pannilal) criminally trespassed into Kuzhikandathil estate building bearing No. III/300 belonging to K.M.R. Estate situated at CRL.APPEAL 1002 OF 2009 -:2:- Vellimala Kara in Anakkara Village of Idukki District for the purpose of committing robbery and in furtherance of their common intention to commit the aforesaid offence , A2 throttled the neck of P.W.4 (Johny Sebastian) who is the manager of the estate and when P.W.4 cried aloud, A1 to A4 thrust a towel in his mouth, A3 hit him on the right wrist with MO2 iron pipe causing a grevious hurt, A1 criminally intimidated P.W.4 showing MO7 knife and A4 showing MO1 pistol which is a dangerous weapon and A1 to A4 thereafter tied P.W.4 on to a cot using MO2 coir rope. Thereafter A1 to A4 committed robbery by taking away the mobile phone of P.W.1 worth Rs. 8,500/- and currency notes worth Rs. 2500/- and also the key of the office room and thereafter they committed theft of currency notes worth Rs. 94,000/- from the office. The accused have thereby committed offences punishable under Sections 450, 394, 397 read with Sec. 34 I.P.C. and Sec. 3 read with Sec. 25(1-B) (a) of the Arms Act, 1959. CRL.APPEAL 1002 OF 2009 -:3:- 3. All the four accused persons faced trial. On the accused persons pleading not guilty to the charge framed against them by the court below for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 18 witnesses as P.Ws 1 to 18 and got marked 26 documents as Exts.P1 to P26 and 13 material objects as Mos 1 to 13. 4. After the close of the prosecution evidence, the accused were questioned under Sec. 313 (1) (b) Cr.P.C with regard to the incriminating circumstances appearing against them. They denied those circumstances and maintained their innocence. After the conviction by the court below the appellant submitted a mercy petition from the prison through the jail superintendent to the following effect:- He is absolutely innocent in this case. While he was standing at Kumali bus stand for going to his native place , CRL.APPEAL 1002 OF 2009 -:4:- the Kumali Police took him into custody and entrusted him with at the Vondenmedu Police. He has actually no connection with the other three accused persons. He was falsely implicated in this case as he is a resident of Nepal. He has his aged mother and his wife and two small children. His wife is suffering from tuberculosis. He is the sole breadwinner of the family. His family members are starving. He is in custody for the past 22 months. He may be released from custody. 5. Since this was not a case of no evidence for the prosecution, the court below did not record an order of acquittal under Section 232 Cr.P.C. The accused did not adduce any defence when they were called upon to enter on their defence. The learned Addl. Sessions Judge , after trial, as per judgment dated 26-3-2009 found all the four accused persons guilty of the offences charged against them and sentenced them to various terms of imprisonment extending up to 7 years besides imposing a sentence of fine. It is the said judgment which is assailed in this appeal by the 4th accused from the Central Prison. 6. I heard Advocate Sri. K.K. Unni , the learned CRL.APPEAL 1002 OF 2009 -:5:- counsel appearing for the appellant on State Brief and the learned Public Prosecutor. 7. The only point which arises for consideration in this appeal is as to whether the conviction entered and the sentence passed against the appellant (A4) are sustainable or not ? THE POINT 8. P.W.1 is the owner of Kuzhikandathil Estate. He is not an occurrence witness. On the occurrence being reported to him he gave Ext.P1 F.I. Statement to the Head Constable (CW22) of Vandanmedu Police Station who registered Ext.P14 F.I.R. marked through P.W.16. 9. P.W.2 is an auto driver who had given a lift to the four accused persons in the night of 4-4-2007 from Puttadi junction to Kumali on the request of A2. He left them in front of the forest office at Kumali. 10. P.W.3 is a person residing near the KMR estate at Vellimala. He also is not an occurrence witness. He was CRL.APPEAL 1002 OF 2009 -:6:- roused in his sleep in the night of 4-4-2007 by P.W.4 the injured knocking at the door and standing with bleeding injuries in front of his house. He gave P.W.4 water to drink. P.W.4 told him that two ghoorkkas who were formerly employed in the estate and two other persons had attacked him and they were armed with an iron rod , a pistol and a knife and that they have gone to the office building after finding out the key of the office. When this witness along with P.W.4 went to the office building, they found the office room completely ransacked and Rs. 94,000/- in cash was missing. P.W.3 fetched an autorikshaw by making a phone call and sent wounded P.W.4 to the hospital. He also informed the neighbours. They then went in a jeep in search of the ghoorkas and found them from the vicinity of the Kumali Police Station. A1 and A2 ghoorkas were formerly employed in the estate of P.W.1. P.W.3 and others had held the four accused persons in captivity till the Vandanmedu police came and CRL.APPEAL 1002 OF 2009 -:7:- the captives were handed over to the police. 11. P.W.4 (Johny Sebastian) is the injured Manager of the estate. He had no difficulty in identifying A1 and A2 who were formerly employed as ghoorkas in the very same estate. According to him , A1 caught hold of his neck and tried to throttle him and asked him where the money was kept. A1 also demanded the key of the office room and hit him on the back of his head with an iron pipe and sustained a bleeding injury. At that time A3 handed over something to A1 and A3 also hit him on the right wrist with an iron rod causing a fracture of his metacarpel. When P.W.4 screamed aloud, A1 gagged his mouth with a towel, A2 then took out a coir rope and they tided both his hands and legs. While so, A4 took out the revolver from the pocket of his jacket and threatened him by saying something in Hindi. P.W.4 was then taken and kept on the cot inside the kitchen. The intruders then searched his office room and they took away the mobile phone , CRL.APPEAL 1002 OF 2009 -:8:- money and the key of the office room. After locking the front door from outside they went away. P.W.4. then somehow extricated himself and went out of the house through the rear door to seek the help of P.W.3. P.W.4 prevaricated in his chief examination itself to show that it was A4 who showed him MO7 knife and threatened him and A4 was at that time wearing a black overcoat marked as MO8. 12. P.W.5 was a person who was selling knifes , choppers, axes etc. in Kattappana Town He had sold MO1 steel knife to A1 and A3. 13. P.W.6 is a witness to Ext.P7 scene mahazar with regard to the bed room of P.W.4 where the the first part of the occurrence took place. 14. P.W.7 is a witness to Ext.P3 scene mahazar regarding the office room where the 2nd part of the occurrence took place. 15. P.W.8 is a witness to Ext.P4 seizure mahazar as CRL.APPEAL 1002 OF 2009 -:9:- per which MO9 bag and its contents and certain personal belongings of the accused were seized by P.W.16 the Sub Inspector. 16. P.W.9 is a witness to Exts. P5 and P6 mahazars prepared by P.W.17. As per Ext.P5 mahazar MO4 shirt and MO5 lungi worn by P.W.4 at the time of occurrence were seized. As per Ext.P6 mahazar a full sleeve shirt of A2 and an overcoat worn by A3 and yet another overcoat worn by A4 were seized. 17. P.W.10 is a witness to Ext.P7 mahazar as per which MO2 iron pipe was recovered by P.W.17 consequent on the confession made by A1. P.W. 10 had also witnessed the recovery of MO7 knife from the vicinity of the spot from where MO2 iron rod was seized. 18. P.W.11 was the causality Medical Officer of St. John's Hospital, Kattappana who examined P.W.4 at 2.15 a.m. on 5-4-2007. As per Ext.P8 wound certificate P.W.4 had a lacerated injury of 1 x 3 cms. over scalp, swelling CRL.APPEAL 1002 OF 2009 -:10:- and tenderness on right hand and abrasion over right leg. X-ray revealed undisplaced fracture to the base of second meta carpel of his right hand. 19. P.W.12 was the Sub Inspector of SBCID, Ernakulam. He defused the ammunition used on MO1 gun and issued Ext.P9 certificate. He had also taken some gun powder therefrom and had forwarded the same to the Forensic Science Laboratory. 20. P.W.13 is the Assistant Director of Forensic Science Laboratory who issued Ext.P10 certificate to show that MO1 revolver is a serviceable firearm. P.W.14 is the Assistant Director of Explosives, who examined MO10 and MO11 gun powder and issued Ext.P11 certificate. 21. P.W.15 was the Village Officer of Annakkara who prepared Ext.P12 scene plan pertaining to the bedroom of P.W.4 and Ext.P13 scene plan pertaining to the office room. 22. P.W.16 was the Sub Inspector, Vandanmedu who proved Ext.P1 F.I. statement recorded by C.W. 22 (head CRL.APPEAL 1002 OF 2009 -:11:- constable) and Ext.P14 F.I.R. registered by C.W.22 initially for offences punishable under Sections 450 and 394 read with Sec. 34 I.P.C. A1 to A4 were arrested by him from the vicinity of Kumali Sales Tax Checkpost at 3.30 a.m. on 5-4- 2007. At the time of arrest A3 was holding MO9 bag. A1 and A2 were identified by P.W.1 and his office staff as A1 and A2 were employed in the estate formerly. MO9 bag contained currency notes worth Rs. 90,500/- and MO1 revolver and MO6 mobile phone. Exts.P15 to P18 are the arrest memos of A1 to A4. Ext.P4 is the mahazar prepared by P.W.16 at 3.30 a.m. on 5-4-2007. After the seizure of M O9 bag and body search of A1 to A4. P.W.17 Circle Inspector of Police, Nedumkandom investigated the case for two days on 5-4-2007 and 6-4-2007. He prepared Ext.P2 scene mahazar to which P.W.6 is an attestor. Blood stained earth and MO3 piece of coir rope etc. were seized from the scene of crime. He also prepared Ext.P3 scene mahazar with regard to the office room. P.W.7 is an CRL.APPEAL 1002 OF 2009 -:12:- attestor to the said mahazar. Ext.P5 is the recovery mahazar prepared by P.w.17 and P.W.9 is an attestor to the same. As per Ext.P5, MO4 shirt and MO5 lunki belonging to P.W.5 were seized. P.W.17 also prepared Ext.P6 recovery mahazar evidencing recovery of MO8 overcoat. P.W.9 is an attester to this mahazar also. P.W.17 further prepared Ext.P7 recovery mahazar as per which MO2 iron pipe was recovered at the instance of A1 and MO7 knife was taken into custody from the vicinity of the very same spot. Ext.P7 (a) is the confession statement made by A1. Ext.P21 is the certificate of the Forensic Science Laboratory marked through P.W.17 to show that MO4 and MO5 dress belonging to P.W.4 were smeared with human blood belonging to 'O' group. P.W.18 was the Circle Inspector of Police, Nedunkandom who laid the final report after investigation. He proved Ext.P3 forwarding note , Ext.P24 letter from the Addl. District Magistrate showing that A1 to A4 were not issued any gun license. Ext.P25 CRL.APPEAL 1002 OF 2009 -:13:- report to alter section by adding Sec. 397 I.P.C. and Sections 3 and 25 (1-B) of the Arms Act, 1959. He also proved Ext.P26 prosecution sanction from the District Collector to prosecute the accused persons for the offences under the Arms Act, 1959. 23. After hearing both sides and after a careful re- appraisal of the oral and documentary evidence , I am not satisfied that the prosecution has succeeded in bringing home the guilt of the appellant (A4) beyond reasonable doubt. 24. P.W.4 is the only occurrence witness. He was injured in the occurrence which took place during the dead of the night. P.W.4 knew A1 and A2 since both of them were employed as ghoorkkas in the estate of P.W.1 where P.W.4 is working as the Manager. But P.W.4 did not have any previous acquaintance with A3 and A4. The occurrence itself was at the dead of the night and P.W.4 has no case that he had sufficient exposure of the four CRL.APPEAL 1002 OF 2009 -:14:- intruders so as remember their features, particularly, those of A3 and A4. He confessed that he had not mentioned any of the features of the culprits to the police. Admittedly, no test identification parade has been conducted by the investigating agency to confirm the identification of A3 and A4 by P.W.4. In the case of A3, soon after the occurrence when the police arrested him, A3 was holding MO9 bag in which the stolen currency amounting to Rs. 94,500/- was found. P.W.4 was giving evidence before the Court two years after the occurrence. Hence, his identification of A4 for the first time in court is of absolutely no value. (See Kanan v. State of Kerala - AIR 1979 SC 1127). That apart, P.W.4 himself made a mistake in his chief examination by initially saying that A4 took out a gun from the pocket of his overcoat and threatened him but he subsequently stated that A4 showed MO7 knife at him. The prosecution has no case that out of the four assailants A4 alone was wearing an overcoat. On the contrary, Ext.P6 CRL.APPEAL 1002 OF 2009 -:15:- mahazar marked through P.W.9 and prepared by P.W.17 shows that a full sleeve shirt worn by A2, an overcoat worn by A3 and another overcoat worn by A4 were seized. All the aforementioned full sleeve shirt and two over coats were produced before the committal Magistrate as revealed by Ext.P22 property list. But for reasons best known to the prosecution, they marked only one overcoat which is MO8. That was not proved to be the overcoat worn by A4. Under these circumstances the testimony of P.W.4 that A4 took out a gun from his overcoat cannot be conclusively relied on to prove that it was the appellant who had taken the said firearm from the overcoat. When both A3 and A4 both wearing overcoats and P.W.4 himself had committed a mistake in saying subsequently that A4 showed a knife, it is not possible to conclude that A3 was one among the assailants, merely because he was also wearing an overcoat or that he also happens to be a Nepali. In the absence of a test identification parade the identification of CRL.APPEAL 1002 OF 2009 -:16:- A4 by P.W.4 cannot be any of help to the prosecution. Under these circumstances, the conviction entered and the sentence passed against the appellant (A4) overlooking the above vital aspects of the matter cannot be sustained. The appellant (A4) is accordingly found not guilty of the offences punishable under Sec. 450, 394 and 397 read with Sec. 34 I.P.C. and Sections 25 (1-B) of the Arms Act, 1959 and is acquitted of the same. He shall be released from prison forthwith unless his continued detention is found necessary in connection with any other case against him. Crl.Appeal is allowed as above. Sd/- V. RAMKUMAR, (JUDGE) /true copy/ ani. CRL.APPEAL 1002 OF 2009 -:17:- V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * CRL.APPEAL 1002 OF 2009 * * * * * * * * * * * * * * * * * * Dated : 11-12-2009 JUDGMENT