Baiju s/o Bava Joseph; Rajeev; Liju Antony; Shynu @Shaji; Jinson v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 1[ST] DAY OF APRIL 2024 / 12TH CHAITHRA, 1946** **CRL.A NO. 2431 OF 2006** **AGAINST THE CONVICTION AND SENTENCE VIDE JUDGMENT DATED 12.12.2006 IN S.C.NO.558 OF 2004 ON THE FILES OF THE ADDITIONAL SESSIONS JUDGE (ADHOC-I), THODUPUZHA** **APPELLANTS/ACCUSED NOS.1,2,3,4 & 6:** - **1 BAIJU S/O.BAVA JOSEPH, THAMARASSERIL VEETTIL, KURISUMMOODU KARA,VAZHAPPALLY VILLAGE.** - **2 RAJEEV S/O.JOSEPH CHERUTHILATTU VEETTIL, KURISUMMOODU KARA,, VAZHAPPALLY VILLAGE.** - **3 LIJU ANTONY S/O.ANTONY JOSEPH KOTTAVILA PUTHENVEETTIL, KURISUMMOODU KARA,, VAZHAPPALLY VILLAGE.** - **4 SHYNU @SHAJI S/O.ABDUL KARIM PUTHUPARAMBIL VEETTIL, KURISUMMOODU KARA,, VAZHAPPALLY VILLAGE.** - **5 JINSON S/O. JOSEPH VARGHESE KUNNUMPARAMBIL VEETTIL,KURISUMMOODU KARA, VAZHAPPALLY VILLAGE. BY ADVS. SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.DILEEP P.PILLAI SMT.LAKSHMI.N.KAIMAL SRI.RENJITH B.MARAR SRI.T.K.SUJITH** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SMT.PUSHPALATHA M.K – SR.PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.A.No.2431 of 2006 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.A.No.2431 of 2006 ----------------------------------------------------------Dated this the 1[st] day of April, 2024** ## **J U D G M E N T** Appellants were accused Nos.1 to 4 and 6 in Sessions Case No.558 of 2004 on the files of the Sessions Court, Thodupuzha. Additional Sessions Judge (Adhoc-I), Thodupuzha tried them along with the 5[th] accused on a charge for offences punishable under Section 397 of the Indian Penal Code, 1860. The appellants were convicted. Accused No.5 was acquitted. The appellants were sentenced to undergo rigorous imprisonment for a period of 7 years and to pay a fine of Rs.10,000/- each. The said judgment of conviction and order of sentence are under challenge in this appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973. Case of the prosecution is as follows: PW1 and PW2 were travelling in the jeep bearing Registration No. KL-5-H-5117 on 06.04.2002. At about 11.00 a.m when they reached at Chemmannu the accused persons 3 Crl.A.No.2431 of 2006 waylaid by stopping a Maruti Van bearing Registration No.KL5-G-1096 across the road. Accused Nos. 2, 3 and 5 came out of the van and surrounded the jeep. The 1st accused using a sword damaged the windscreen of the jeep, the 1[st] and 4[th] accused slashed the sword on the neck and hands of PW1 causing fracture to his wrist and other injuries. The 6[th] accused hit PW2 with the handle of a sword when PW2 attempted to move forward the jeep and threatened PW1 and PW2 with death and robbed off the bag containing Rs.327840/- from PW1. 2. The prosecution has examined PWs 1 to 23 and proved Exts.P1 to P30. MOs 1 to 6 were identified as well. While examined under Section 313(1)(b) of the Code, the appellants denied their complicity with the crime. They claimed to be innocent. No defence evidence was let in. The trial court took the view that evidence tendered by the prosecution was insufficient to prove identity of accused No.5. The trial court further held that six persons had involved in the robbery and the identity of the appellants was established by the prosecution. 3. The appellants assail the findings of the trial court 4 Crl.A.No.2431 of 2006 resulting their conviction, essentially, on the ground of proof regarding identity. It was also contended that the discrepancies appeared in the evidence tendered by the prosecution render the findings of the trial court unsustainable in law and facts. The appellant would contend that the conviction is liable to be set aside. 4. Heard the learned counsel for the appellants and the learned Senior Public prosecutor. 5. PW1 was the Assistant Section Officer in the Central Office of the Semnivalley estate. He along with PW2 and PW10; both were employees of the estate, went to Elapapra to draw Rs.3,50,000/- from the State Bank of Travancore which was intended for disbursing the salary to the employees in the estate. After encashing the amount, PW1 gave Rs.22,160/- to PW10 for payment of electricity charges. Remaining amount was kept in a handbag. PW1 along with PW2 returned to the estate. PW2 was driving the jeep. When they reached Odichukuthi, near Chemmannu a Maruti van was seen parking on the road and causing obstruction. Two persons were pushing the said van. When the jeep was 5 Crl.A.No.2431 of 2006 stopped, three persons came out of the van armed with swords. They smashed at the window glasses of the jeep and demanded PW1 to hand over the money. When they tried to open the door of the jeep, PW1 resisted. However, they succeeded and snatched the bag from PW1. When he resisted, he was attacked by one among them using a sword. Another person also attacked him using the sword. PW1 identified the 4[th] accused as the person who brandished sword which resulted injury to him first. He could not identify the others. It is his version that he was attacked using swords 4-5 times. 6. PW2 deposed that while they reached Odichukuthi, the van stopped across the road obstructed their way and therefore he swerved the jeep and tried to proceed, but could not. The jeep skidded and tyre fell into the roadside ditch. Immediately three persons came out of the van and attacked them. He also described the incident almost in terms of what has been stated by PW1. He stated that accused Nos.3 and 4 were the persons who came out of the jeep. Among the assailants, accused Nos.1 and 4 initially attacked PW1 causing him injuries. He added that it was the 2[nd] accused who 6 Crl.A.No.2431 of 2006 brandished the sword against him and had the scuffle for the key of the jeep. Thus PW2 deposed regarding the complicity of accused Nos.1, 2, 4 and 6 before the court. His categorical version is that there were six persons in the van. He however, could not depose the registration number of the van. 7. Apart from the evidence of PWs 1 and 2 the prosecution relies on the circumstances that PW1 was immediately taken to the hospital and underwent treatment, the fact of withdrawal of Rs.3.5 lakh from the State Bank of Travancore, Elappara Branch, evidence of PWs 11 and 12 concerning hiring of their van bearing registration No.KL-05G-1096 to the 4[th] accused, arrest of accused Nos.2 and 3 and recovery of the stolen money from the van itself following its accident soon after the incident, and immediate arrest of others from the locality itself. 8. The learned counsel for the appellants would submit that evidence of PWs 1 and 2 regarding identification of the appellants cannot be relied on for, there are intra and _interse_ inconsistencies. While PW1 could identify only the 4[th] accused the identification by PW2 of accused nos.1, 2, 4 and 6 7 Crl.A.No.2431 of 2006 is quite unbelievable. The contradiction crept in his evidence as to the overt act of accused No.4 makes his evidence totally unreliable. There is no independent evidence to render support to the identification by PWs 1 and 2 before the Court and also considering the irreconcilable infirmities in their evidence as to the identification of the assailants the conviction is liable to be set aside. 9. The learned Public Prosecutor on the other hand would contend that in regard to the identification of the 4[th] accused, the direct evidence itself is sufficient inasmuch as for PWs 1 and 2 who are the victims of offence categorically identified him before the court without leaving any room for doubt. As far as the involvement of accused Nos.2 and 3 is concerned also there cannot be any doubt inasmuch as they were arrested from the van following the accident at Murinjapuzha and the stolen articles were in the van at that time. It is further submitted that accused nos.1 and 6 were arrested soon after the incident and at the time of their arrest, they were having injuries and their blood stained dress which PW23 had seized would sufficiently corroborate their 8 Crl.A.No.2431 of 2006 identification by PW2 before the court. 10. The finding of the the trial court is that the incident of dacoity occurred at 11.a.m on 26.04.2002. It is sufficiently proved and that it stands unassailable. Version of PWs 1 and 2 regarding the incident is sufficiently corroborated by the evidence of PW4, the cashier in the State Bank of Travancore and PW10, the attender in the estate. PW1 was taken first to the Elappara Hospital and then to the Government Hospital. He was subsequently taken to the Medical College Hospital, Kottayam. Exts.P6, P7 and P8 are the certificates issued respectively by PWs 14, 15 and 16 who were the doctors who attended PW1 in the aforementioned hospitals. PW1 had the following injuries as per Ext.P7. 1. Incised wound left hand 5 x 3 cms over radial and dorsal aspect of the wrist with multiple extension tendon cut. 2. Incised wound proximal to the first one 3 x 2 cms with fracture scalphoid bone. 3. Multiple incised wounds over the arm and thump right hand. 4. Right hand zone to flex3 tendon injury with distal devascularity both nerve bundle cut. 5. Incised wound 3 x 1 cm anterior aspect of neck. 9 Crl.A.No.2431 of 2006 6. 1 x 1 cm incised wound right forearm extension aspect. From the said evidence, it is established that PW1 was inflicted serious injuries during the incident using swords. 11. Soon after the incident, PW23 reached Murinjapuzha in search of the assailants. Enroute, he knew about involvement of a van in an accident and he rushed to the spot. At Murinjapuzha, he saw the capsized Maruti van bearing No.KL-5-G-1096 on the roadside. He arrested accused Nos.2 and 3 from inside the said van. He got information from them that the others in the van took on their heels. Although that statement is not relevant, the fact that accused Nos.2 and 3 were arrested from the said van goes a long way to establish that it was the said van that involved in the incident. 12. PW11 is its owner of the van bearing No.KL-5-G1096. He deposed before the court that the 4[th] accused took the said van on hire from him. PW11 identified the 4[th] accused before the Court as the person who got the van from his possession. Of course, PW11 did not handover the vehicle personally, but it was his wife PW12 who handed over the vehicle to the 4[th] accused. PW12 did not identify the 4[th] 10 Crl.A.No.2431 of 2006 accused before the court as the person who obtained possession of the vehicle. But from a conjoined reading of the oral testimonies of PW11 and 12 in the light of the evidence of PWs 1 and 2 identifying the 4[th] accused as one among the assailants, it can certainly be held that it was the 4[th] accused who got the van from PW11. 13. It was the said van, KL-5-G-1096, which was seized by PW23 as per Ext.P5 mahazer from Murinjapuzha where it was involved in an accident. When accused Nos.2 and 3 were arrested from the said van and they were identified by PW2 before the court, there cannot be any doubt to the fact that they were members of the assailants group. While identity of accused No.2 and 3 gets support from the evidence mentioned above, the prosecution can rely only on the oral testimony of PW2 to prove the identity of accused Nos.1 and 6. 14. PW23 deposed that he arrested accused Nos.1 and 6 from near Murinjapuzha where the van was involved in an accident. The learned Public Prosecutor banks upon the arrest memos and inspection memos concerning their arrest and also the fact that their dresses at the time of arrest were blood 11 Crl.A.No.2431 of 2006 stained to substantiate their complicity with the crime. True, the dresses worn by them at the time of arrest were blood stained and torn. It is not in evidence as to from where exactly and as shown by whom they were arrested. Simply because they were arrested soon after the incident and their dresses had blood stains, there cannot be a finding that they were involved in the incident. Of course, a strong presumption that they might also be parties to the group of dacoits is possible. But, such an inference cannot take the place of evidence, especially when PW2 could not state the overt acts of accused nos.1 and 6 convincingly. Therefore, the circumstances that they were arrested soon after the incident by PW23 and their dresses were torn and blood stained are not enough circumstances to corroborate the oral testimony of PW2 concerning their identification before the court. 15. The learned counsel for the appellants in the above context placed reliance on the decisions of the Apex Court in **Mohanlal Gangaram Gehani v. State f Maharashtra [(1982) 1 SCC 700], Laxmipat Choraria and Others v.Stte of Maharashtra [AIR 1968 SC 938], Ravindra @** 12 Crl.A.No.2431 of 2006 **Ravi Bansi Gohar v. State of Maharashtra & Others [(1998) 6 SCC 609]** and **Suresh v. State [2003 KHC 216]** . The view taken in those decisions is that if the assailants are persons, not known to the witness earlier and seen first time at the time of occurrence, their identification before court by such a witness is unreliable, unless there was a test identification parade. Also, it was held that if a photograph of the accused was shown to the witness by the police for identification purposes, evidence of that witness identifying the accused in court becomes worthless. 16. Indisputably, no test identification parade was conducted in this case. The prosecution did not choose to conduct a test identification parade. But, PW2 claimed to have identified the accused before the police on the next day. That cannot take the place of an identification parade and cannot be used for any purpose. In view of the law laid down in the aforesaid decisions, the testimony of PW2 concerning his identification of accused Nos.1 and 6 cannot be acted upon without having independent corroboration. As stated, except their arrest and their wearing blood stained dress at the time 13 Crl.A.No.2431 of 2006 of arrest, there is no tangible evidence to connect them with the offence. Independent evidence to render support to the oral testimony of PW2 insofar as his identification of accused Nos. 1 and 6, is thus lacking. 17. In the circumstances, the finding of the court below that accused Nos.1 and 6 were members of the dacoits is not based on any reliable evidence. So the prosecution fails insofar as identity of accused Nos.1 and 6 is concerned. Whereas, the prosecution proved beyond doubt that there were six persons in committing the dacoity, and accused Nos.2, 3 and 4 were the three among them. The findings of the trial court leading to the conviction of accused Nos.2, 3 and 4 do not suffer from any infirmity. Their conviction is accordingly confirmed. Conviction of accused Nos.1 and 6 is set aside and they are set at liberty. 18. The trial court imposed only a minimum sentence. Considering the nature of the offence, the sentence imposed by the trial court is commensurate. Hence, the sentence imposed on accused Nos.2, 3 and 4 is confirmed. Appeal is accordingly allowed in part. Conviction of and 14 Crl.A.No.2431 of 2006 sentence imposed on accused Nos.1 and 6 are set aside and they are set at liberty. Conviction of and sentence imposed on accused Nos.2, 3 and 4 are confirmed. They shall surrender before the trial court within two months from today to suffer the sentence. Sd/- **P.G. AJITHKUMAR JUDGE** PV