CRL.A.No.405/2014 (A)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS WEDNESDAY, THE 6TH DAY OF JANUARY 2016/16TH POUSHA, 1937** **CRL.A.No. 405 of 2014 (A)** **-------------------------AGAINST THE ORDER/JUDGMENT IN SC 631/2013 of ASSISTANT SESSIONS COURT, CHAVAKKAD DATED 01-04-2014** **APPELLANT/1ST ACCUSED: ----------------------** **KATTUKUJAN AGED 45 YEARS S/O.MUKKAN, MANJAKOLLA COLONY, KAMBAM VILLAGE KAMBAM TALUK, THENI DISTRICT, TAMILNADU. BY ADVS.SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.BENOJ C AUGUSTIN SRI.SEBIN THOMAS SMT.J.KASTHURI SRI.VIVEK KANNANKERY SRI. VISHNU BHUVANENDRAN** **RESPONDENT/STATE: -----------------** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-31.** **BY PUBLIC PROSECUTOR: SMT M G LISHA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07.12.2015, THE COURT ON 06.01.2016 DELIVERED THE FOLLOWING:** ## **SUNIL THOMAS, J.** ============================== **Crl.A.No.405 of 2014** ============================== Dated this the 6[th] day of January, 2016 ## **JUDGMENT** The first accused, who stands convicted for offence punishable under Sections 458 and 397 of the Indian Penal Code, is the appellant herein. 2. The case of the prosecution was that the first accused, along with five other persons had committed lurking trespass into the house of PW1 on 08.07.2006 at about 2 a.m. and committed robbery. According to the prosecution, on the relevant day, PW1 along with his family members had gone for sleep. At about 2 a.m, PW1 heard a noise and cries of his wife and daughter and he, along with another daughter who was also sleeping with him, rushed to the main hall of the house. He found one person carrying a chopper, another person carrying an iron rod and third one with a rafter in the hall. The fourth person had caught hold of the throat of the daughter and demanded gold ornaments. All of them were allegedly wearing bermudas and had partially covered their face. Two persons were standing outside. On hearing the cries of PW1, the son-in-law, who was sleeping in the upstairs came rushing Crl.A.405/14 2 down and in the meanwhile, all accused fled from the scene. PW1 and son-in-law chased them, but were prevented by the other members fearing retaliation. It was found that the accused had robbed them of about 11¼ gold sovereigns worth Rs.55,000/- to 70,000/-, which were worn by the family members. In the meanwhile, PW1 had sustained minor injury on his forehead due to the attack by one of the accused using an iron rod. He was rushed to the nearby hospital where he underwent first aid treatment. The matter was reported to the police, who came to the scene, prepared FIS and investigation commenced. In the course of investigation, accused were arrested after several years and after completing the investigation, final report was laid before the magistrate court for offences punishable under Sections 458 and 397 and 201 of the IPC. 3. Accused Nos. 4 and 6 were absconding and hence the remaining accused alone faced the trial. All the accused pleaded not guilty. On the side of the prosecution, PWs.1 to 12 were examined and Exts.P1 to P23 were marked. The court below, on an evaluation of the entire evidence, found the first accused alone guilty for offence punishable under Sections 458 and 397 of the Crl.A.405/14 3 IPC and convicted him. He was acquitted of charge under Section 201 of the IPC. All other accused who faced the trial were acquitted of the offences. Aggrieved by the conviction and sentence of seven years rigorous imprisonment slapped on the accused along with a fine of Rs.30,000/- with a default sentence of one year, first accused has preferred this appeal. 4. Heard. Examined the records. 5. The prosecution allegation is sought to be proved through the oral testimony of PWs.1 to 3 who are claimed to be eye witnesses to the incident. PW2 is the wife of PW1 and PW3 is the daughter. According to PW1, PW3 was married away, but was staying with him at that time after delivering a baby. Her husband, who was settled in Ernakulam used to visit the house on weekends. On the relevant day, he was also available in the house, sleeping in the first floor. PWs.2 and 3, along with the child slept in one of the bed room on the ground floor and PW1 along with the younger daughter slept in another bedroom. According to PW1, he heard cries of PWs.2 and 3 and rushed to the main hall. He saw four persons in the centre hall. One among them had caught hold of the daughter's throat. The remaining were armed with rafter, chopper Crl.A.405/14 4 and iron rod. Two persons were waiting outside, guarding the scene. PW1 deposed that he resisted the attempt of the accused to take forceful possession of the gold ornaments. In the meanwhile, one of the accused hit on his forehead with an iron rod. He identified the above person as the first accused. The individual overt act of the remaining accused were spoken by him. He deposed that hearing the cries of the family members, son-in-law came rushing and hearing the noise of foot steps, accused who were in the centre hall ran out of the main hall. In the meanwhile, they had thrown the rafter on the room and one liquor bottle in the possession of one of the accused was also thrown out. He deposed that they had lost 11¼ sovereigns. 6. This version of PW1 was corroborated by the evidence of PWs.2 and 3. According to PWs.2 and 3, they heard a noise initially which was one of attempting to open the main door. Thereafter, they heard more noises. They found one accused in the room. He demanded the gold ornaments and forcefully took the gold ornaments. Remaining accused were armed and they had been threatening them to part with the gold ornaments. Both the witnesses uniformly deposed about the sequence in which the Crl.A.405/14 5 incident happened, followed by the entry of PW1 and thereafter, by the son-in-law of PW1. 7. The evidence on record indicates that the house was situated in about 2 acres of land and was virtually isolated from the neighbourhood. PW2 also deposed that in the attempt to open the door, front door was damaged. Ext.P2 scene mahazar indicates that the tower bolt of the door was also damaged. The above witnesses also deposed that the first accused had hit PW1 with the iron rod and he started bleeding. While escaping, they had thrown two sticks and a liquor bottle was accidentally thrown out. From the scene of occurrence, the liquor bottle and the rafter were also seized. PW4 is a witness to Ext.P2 mahazar. It is also on record that immediately after the incident, about 20 persons came to the scene and the police also reached the spot followed by the finger print expert. 8. The version of PW1 that he sustained injury on his forehead was corroborated by the oral testimony of PW5, the doctor attached to the Sankar's clinic. She deposed that she had examined PW1 and issued Ext.P3 wound certificate. It had noted that he had sustained hit injury on the right forehead above the Crl.A.405/14 6 right eye. The doctor opined that the injury can be caused by a rafter or an iron rod. 9. One of the main contention of the learned counsel for the accused was that though it may appear that the version of PWs.1 to 3 were uniform, consistent and did not exhibit any embellishment or suffered from any omission or contradiction, apparently, there were several inconsistencies in the evidence. It was contended that the accused were arrested about 6 years after the incident. It was unbelievable that the witnesses would depose from their memory with precision and could identify the accused whom they had occasion to see for few minutes. It was also contended that even according to the witnesses, the accused had partly covered their face. It was further contended that the incident happened in the midnight and there was no sufficient light to identify the accused. 10. It is true that in the FIS, there was a reference that there was light in the bedroom and veranda. However, PW1 at the time of evidence deposed that since the new born baby was sleeping along with the mother, light was kept switched on in the bedroom. The tube light in the veranda was switched on and in the Crl.A.405/14 7 centre hall, there was a CFL bulb of 15 watts. In his own bedroom, zero watt bulb was switched on. PW2 in her evidence also deposed that there was light in the front room and in the centre hall. It is clear that there is sufficient evidence to prove that there was enough light available, sufficient to identify the accused. 11. In the FIS, it was specifically stated that the accused had half masked. PW1 clarified that in fact they were not wearing a mask but had covered their face with a cloth piece kept against their face. According to the witnesses, face was partly covered. PW3 in her evidence had also deposed that they had covered their face only partly. With reference to the second accused, she has specifically deposed that she had removed his mask while there was push and pull. The mask of others had fallen off. PW3 further deposed that when her husband came rushing down from the upstairs, he started switching on the tube lights. She had also stated that while the entire incident was happening, the first accused was moving inside the room shouting and screaming. 12. The versions of PWs.1 to 3 as mentioned above clearly indicate that the accused had spent sufficient time in the main hall. The witnesses had sufficient opportunity to have a close look at the Crl.A.405/14 8 accused. They had also stated that few of the accused had threatened her which was in Malayalam laced with Tamil. Even in the FI statement, PW1 had stated that all the accused were less of than 25 years old. This clearly shows that the witnesses had sufficient time to watch the accused from close quarters. Hence, there cannot be a dispute that the witnesses did not get sufficient time to identify the accused or could not have identified the accused, since their face was partly covered. 13. The prosecution essentially relied on the finger print evidence to prove the complicity of the first accused. PW8 is the finger print expert. He deposed that he went to the scene of occurrence and had inspected the scene. Finger prints were traced from the front door, inner bedroom, wooden frame of the window and also from the liquor bottle which was accidentally thrown out in the course of the incident. Ext.P6 is the report prepared by him. PW9 is the finger print expert who compared the finger print developed by PW8. He deposed that he compared the finger prints with the data maintained in the bureau of records. The right middle finger of the first accused in the present case tallied with the finger print of the first accused in crime No.342 of Crl.A.405/14 9 2012 of Vadakkapad Police Station. This was immediately informed to the Investigating Officer. Ext.P9 is the report prepared by PW9. 14. PWs.8 and 9 were cross examined in detail touching upon the reliability of the finger print evidence tendered by both. In spite of lengthy cross examination, PW9 had consistently spoken in consonance with his report. There is absolutely nothing to doubt that the findings arrived at by the experts, that the finger print of the first accused herein tallied with the data maintained in the records. 15. Learned counsel for the accused contended that even though about 20 neighbours had reached the spot after the incident, none of them were examined. This appears to be a very feeble contention, since none of the above witnesses had seen the actual incident. PWs.1 to 3 are the witnesses to the actual incident and hence, most competent to depose. They were examined. Another contention of the learned counsel for the accused was that even though PW1 initially said that an iron rod was used to hit on the forehead, later it was stated to be a rafter. Iron rod was not recovered from the spot. Further, PW1 had deposed that the accused had hit on the various parts of the body. However, the Crl.A.405/14 10 doctor had seen only injury on the forehead. The above contention is also not sustainable, since even PW1 did not have a case that though he was hit with a rafter, he had sustained any bodily injury worth noting. It was further contended that even though PW1 had sustained a bleeding injury, blood stains were not seen by the Investigating Officer on the floor. The above contention also do not merit consideration since none of the witnesses has stated that blood had fallen on the floor. 16. The court below on an evaluation of the entire materials held that the identification of the accused by PWs.1 to 3 were not believable. According to the court below, they had identified all the accused after the lapse of more than seven years. They did not have previous acquaintance with the accused persons and the incident had happened during odd hours. No test identification parade was conducted. After a lapse of six years, accused were shown by the police in the police station, which according to the learned trial judge was an identification unknown to law and practice. The court below mainly held that test identification would have confirmed the complicity of the accused and identification of the accused in the Court for the first time, that too, after a long Crl.A.405/14 11 period of time was unreliable. Consequently, all the accused who faced the trial, except accused No.1 were given the benefit of doubt and were acquitted. Learned counsel for the accused relying on the decision in **Balbir v. Vazir and Ors. (2014 KHC 4438)** contended that if an eye witness did not have sufficient opportunity to see the faces of the accused, failure to hold an identification parade is a serious drawback in the prosecution case. It was also contended that the material objects were not recovered from the accused in this case. Relying on **Iqbal and Another v. State of Uttar Pradesh (2015 KHC 4351)** , it was held that failure to recover gold jewellery was fatal to the prosecution. In the latter case, conviction was based on identity of the accused by witnesses in the test identification parade alone. In that background, the Honourable Supreme Court held that absence of recovery was a ground for acquittal. Evidently, in that case, there was no reliable material to connect the accused in the incident. In the former case, there were materials on record to show that the witnesses could not have seen the face of the accused and hence, not holding of test identification parade assumed significance. However, in the case at hand, as mentioned above, the eye Crl.A.405/14 12 witnesses had sufficient time to watch the physical features of the accused, that too at close proximity. Further, test identification parade has no probative value except that, it may give credence to the course of investigation and may confirm that the investigation was on the right track. The best identification was the identification in the Court itself. In the above circumstances, the finding of the court below on non-conduct of test identification parade does not appear to be justifiable. However, since the acquittal of the remaining accused is not in challenge, this issue is not considered in detail further. 17. The evidence on record indicates that PWs.1 to 3 had convincingly deposed that the first accused was one among the persons who had committed robbery. This is corroborated by the evidence of the finger print expert. The accused had entered the house during night after breaking open the front door. The accused along with the remaining accused had committed robbery. Hence the finding of the court below that the first accused is guilty of offence punishable under Sections 397 and 458 of the IPC is only to be confirmed. I find no reason to take a different view. Crl.A.405/14 13 18. The allegation against the accused herein is very serious. The manner in which the offence was committed, the timing and all attending circumstances indicate that the punishment to be imposed on the accused should have an element of deterrence also. Hence, the substantive sentence of seven years rigorous imprisonment with a fine of Rs.30,000/- and in default of which accused shall undergo rigorous imprisonment for one year is only to be confirmed. In the result, the appeal fails and it is dismissed confirming the conviction and sentence. Sd/- **SUNIL THOMAS Judge** Sbna True Copy P A to Judge