Crl.Appeal No.632 of 2007 (Aneesh @ Kannan v. State)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 22[ND] DAY OF FEBRUARY 2024 / 3RD PHALGUNA, 1945 CRL.APPEAL NO. 632 OF 2007** **AGAINST THE JUDGMENT DATED 02.04.2007 IN SC 630/2004 OF ADDITIONAL SESSIONS COURT (ADHOC-I), ERNAKULAM** ## **APPELLANT/1ST ACCUSED:** **ANEESH @ KANNAN AGED 31, S/O SHANMUGHAN, THENALIPARAMBIL, VADAVUKODE,, PUTHENCRUZ VILLAGE, ERNAKULAM.** **BY ADVS. SRI.K.S.MADHUSOODANAN SRI.SHAHIN.M.KOMATH SRI.T.V.JAYAKUMAR NAMBOODIRI SRI.K.B.SUJAI KUMAR SRI.THUSHAR NIRMAL SARATHY SRI.M.M.VINOD KUMAR** ## **RESPONDENT/STATE:** **STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SMT.SEENA C., PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 25.01.2024, THE COURT ON 22.02.2024 DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.632 of 2007 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.Appeal No.632 of 2007 ----------------------------------------------------------Dated this the 22[nd] day of February, 2024** ## **JUDGMENT** The appellant is the 1[st] accused in S.C.No.630 of 2004 on the files of the Sessions Court, Ernakulam. The appellant was convicted by the I Additional Sessions Judge (Adhoc-I), Ernakulam as per the judgment dated 02.04.2007 for the offences punishable under Sections 397 and 451 of the Indian Penal Code, 1860 (IPC). He was sentenced to undergo simple imprisonment for a period of 7 years for the offence under Section 397 of the IPC and to undergo simple imprisonment for a period of 3 years under Section 451 of the IPC. 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 (Code). 2. There were eight accused. The offences charged were punishable under Section 109, 120, 450, 397, 411, 216A read with Section 34 of the IPC; Sections 3 and 5 of the 3 Crl.Appeal No.632 of 2007 Explosive Substances Act, 1908; and Section 27(1) of the Arms Act, 1959. Accused Nos.1, 2, 6 and 8 were alone tried. Accused Nos.3, 4 and 7 were absconding. At the trial, PWs.1 to 22 were examined and Exts.P1 to P39 were marked. MOs.1 to 14 were identified. The accused were questioned under Section 313(1)(b) of the Code. No defence evidence was adduced. The trial court on the basis of the evidence let in by the prosecution, held that the appellant along with two others committed the offence of robbery and in that course, they attempted to cause grievous hurt to PW1 and other staff members of the bank. Accordingly, the appellant was convicted and others were acquitted. The other offences were found not proved. 3. Heard the learned counsel for the appellant and the learned Public Prosecutor. 4. The occurrence of the alleged robbery itself is disputed. It is further contended that the identity of the appellant is not established. It is also contended that the appellant established a plea of _alibi_ . The learned counsel for 4 Crl.Appeal No.632 of 2007 the appellant highlighting the reasons in support of the aforesaid contentions canvassed to set aside the conviction and set the appellant at liberty. 5. The facts constituting the basis for the charge against the appellant and his co-accused are the following: At about 1.30 pm on 30.04.2003, accused Nos.1, 3 and 4 trespassed into the Pattupurakkal Branch of Catholic Syrian Bank. They were in possession of explosive substances, a pistol and other weapons. The 3rd accused exploded an explosive in the cabin of PW1, the Manager. The 4th accused smashed off glass panes of the partition walls inside. By brandishing choppers, staff members in the bank were cornered into the dining hall. The 1[st] accused robbed Rs.1 lakh from the cash counter of the bank. They thereafter escaped in a motorcycle bearing Reg.KL-7-B-7358. 6. PW1 was the Manager and PW2 the Cashier. Both of them deposed about the incident. Although other members of the staff were also cited, the prosecution did not examine them. PW2 was declared hostile to the prosecution. Pointing 5 Crl.Appeal No.632 of 2007 out the discrepancies in the evidence of PWs 1 and 2, the failure to register a crime based on the telephonic information received in the police station immediately after the incident and the manner in which the loss of Rs.1 lakh from the bank was described in the bank records, especially Exts.P14 and P15, the learned counsel for the appellant submitted that the very occurrence of such a robbery is doubtful. It is contended that such a story of robbery was created to get the insurance amount falsely. 7. PW1 deposed in detail about the incident. It was his version that while he was sitting in the chamber at 1.30 p.m. on 30.04.2003, one among the three assailants entered the cabin and exploded a ball like thing. Smoke filled in the cabin. He then took out a sword and smashed off the glass panes. He created a terror situation. PW1 was driven out of the cabin and then he saw two other persons holding sword and pistol. They terrorised by smashing the glass panes and threatened other staff members including the Cashier to go to the dining room. It is the further version of PW1 that in that 6 Crl.Appeal No.632 of 2007 course he could grab the sword in the possession of one among them. The 1[st] accused was holding a pistol. The assailants immediately escaped after one of them taking Rs.1 lakh from the cash cabin. 8. PW2 also deposed almost similarly. He added that he along with another staff member chased the assailants, but they rode away in a motorcycle. Both PWs.1 and 2 identified the appellant before the court as one among the said three robbers. 9. PW1 deposed that some among the staff informed the police regarding the occurrence. On the basis of that information, the crime was not registered. But, PW17, the Sub Inspector, reached the bank immediately and recorded the F.I.statement from PW1 and on the basis of that only the crime was registered. The learned counsel for the appellant would submit that a crime should have been registered on the basis of the said telephonic information as it disclosed a cognizable offence and therefore Ext.P1 can be treated only as a statement during investigation. I am unable to accept the said contention. The evidence only shows that a cryptic 7 Crl.Appeal No.632 of 2007 information regarding the incident alone was passed on to the police. That was recorded in the general diary also. But without necessary details and confirming the authenticity of the information a crime could not have been registered. Immediately, PW17 reached the place of occurrence, recorded Ext.P1 statement and registered the crime without any delay. Of course, the F.I.R. reached the court only on the next day. But in the circumstances of this case, the said delay does not matter. It cannot be said that there is any inconsistency or illegality in the matter of registration of the crime. 10. Another contention is that in order to claim insurance amount illegally, such a case was falsely created. PW1 admitted that there was insurance coverage for the bank against such loss and casualty. But, from the evidence brought on record by the prosecution it is quite impossible to say that a false story was created for claiming such a small amount of Rs.1 lakh. 11. Similar is about the discrepancy pointed out in describing the lost amount in the bank documents, namely 8 Crl.Appeal No.632 of 2007 debit voucher, cash register, advance payment register and cash stock register which are Exts.P14 to P17. PW1 explained that in accordance with the banking practice, the lost amount was shown as cash advance and Rs.4,000/- spent in connection with the robbery. I find no inconsistency in recording those entries. That does not discredit the evidence regarding robbery. 12. According to the learned counsel for the appellant, the evidence let in by the prosecution is totally insufficient to establish the identity of the persons involved. The discrepancy in the overt acts of each of the three accused persons appeared in the evidence of PWs.1 and 2 are highlighted in support of that contention. Both PWs.1 and 2 identified the appellant before the court as the person holding a pistol. The others had choppers with them. Therefore, the question is whether the testimonies of PWs.1 and 2 that the 1[st] accused was a member of the robbers is reliable. 13. Indisputable is the fact that the robbers were not persons already known to PWs.1 and 2. No test identification 9 Crl.Appeal No.632 of 2007 parade was conducted. It was after about four years the trial was held. In the view of the learned counsel for the appellant the evidence of PWs.1 and 2, in the above circumstances, is absolutely insufficient to establish the identity of the appellant as a member of the robbers. Adding to that, it was contended that the identifying features of the assailants were not stated before the police and that also discredits their veracity insofar as their identification of the appellant before the court is concerned. Also, it is submitted that the description given that the assailants looked like workers do not match since the appellant was a Government employee. 14. In **Vakil Singh v. State of Bihar [AIR 1981 SC 1392]** the Apex Court held that in the absence of description about identifying features of the accused, identification of him first time before the court, can be marred with mistake and therefore the identification first time before the court cannot safely be acted upon. The same is the view taken in **Hafeez v. State of Andhra Pradesh [AIR 1983 SC 367]** . 10 Crl.Appeal No.632 of 2007 15. Insofar as the contention that in the absence of a test identification parade, identification of the accused for the first time in court cannot safely be relied on, the learned counsel has placed reliance on the decisions of the Apex Court in **Kannan v. State of Kerala [AIR 1979 SC 1127], Lakhwinder Singh v. State of Punjab [AIR 2003 SC 2577]** and **Dana Yadhav v. State of Bihar [AIR 2002 SC 3325]** . Yet another contention of the learned counsel concerning the identification of the appellant before the court is that he was shown to the witnesses in the police station and therefore his identification by PWs.1 and 2 before the court is unreliable. In that regard, the learned counsel places reliance on **Shaik Umer Ahamad Shaikh v. State of Maharashtra [AIR 1998 SC 1922], Mohan Lal v. State of Maharashtra [AIR 1982 SC 839], Vijayan @ Rajan v. State of Kerala [AIR 1999 SC 1086]** and **Gireesan Nair v. State of Kerala [2022 (6) KLT 357]** . 16. Admittedly, PWs.1 and 2 saw the assailants for the first time during the incident. They also admitted that they 11 Crl.Appeal No.632 of 2007 saw the appellant subsequently in the police station. They duly had identified the appellant before the court as one among the robbers and the person in possession of a pistol. Of course, while describing the role of each of the assailants, there occurred a few discrepancies, especially in the evidence of PW2. The said discrepancies are not material having the effect of discrediting their veracity. It is the settled law that a witness cannot be expected to possess a photographic memory and recall the details of an incident, which he witnessed with an element of surprise (See: **Balu Sudam Khalde v. State of Maharashtra [AIR 2023 SC 1736]** ). Therefore, the trivial inconsistencies occurred in the evidence of PWs.1 and 2 while narrating the incident is inconsequential. Certainly, since identification of the appellant before the court by PWs.1 and 2 was for the first time, and in the absence of a test identification parade, that version cannot be the sole basis for a conviction in the light of the law laid down in the aforementioned decisions. Independent corroboration is required if that evidence is to be relied on and to enter a conviction. 12 Crl.Appeal No.632 of 2007 17. The incident, as stated in Ext.P14, debit voucher, was between 1.35 p.m. and 1.50 p.m. on 30.04.2003. Immediately, the assailants escaped on a motorcycle. PW3 is a taxi driver. He deposed before the court that the appellant along with another came in a motorcycle in an enormous speed opposite to his car and the motorcycle skidded and they fell down. PW3 took both of them to the Co-operative Hospital, Thrikkakara. It is his further version that when he examined the body of the appellant to ascertain the nature of injuries he sustained in the fall, he (PW3) noticed a leather pouch on his loin suitable to hold a pistol. PW3 added that the appellant and his companion stealthy left the hospital while he moved from near them. 18. The identification of the appellant by PW3 before the court is not disputed. But, relating to his evidence, two points are pointed out by the learned counsel for the appellant to disbelieve the prosecution case. The first is that when PW3 stated that the motorcycle accident was at 1.30 p.m., they could not be the person who committed the robbery in the 13 Crl.Appeal No.632 of 2007 bank, which occurred between 1.35 p.m. and 1.50 p.m. The second is that the plea of _alibi_ of the appellant is established by the evidence of PW3. 19. PW4 an autorickshaw driver stated that the appellant and another hired his autorickshaw to travel from the Co-operative Hospital, Thrikkakara to Vadavucode. There is no reason to disbelieve his evidence and that confirms that the appellant and another reached that hospital as asserted by PW3. Yet another reason pointed out to discard the prosecution case is that the accident involving the appellant had occurred 3 kms away from the bank and it was while the appellant was riding in the motorcycle towards the bank side. 20. Apart from PWs.1 and 2, PW10 the owner of the building where the bank was functioning and residing on the upstairs, stated that when he rushed to the bank on hearing the sound of explosion, he happened to see two persons running out of the bank and escaping in a motorcycle. From the evidence of PWs.3 and 4, it is established that the appellant has been involved in a motorcycle accident at a 14 Crl.Appeal No.632 of 2007 place 3 kms away from the bank. The discrepancy in the time cannot be given much importance since what PW3 stated in that regard cannot be the exact time, but only approximate. The fact that the appellant was riding a motorcycle towards the bank side cannot also have any adversity to the case of the prosecution, having regard to the circuitous nature of the roads in the city and that the place was 3 kms away from the bank. Therefore, the evidence of PWs 3, 4 and 10 lends support to the case of the prosecution that the appellant and another had escaped in a motorcycle from the bank after robbery, especially when that got confirmation from Ext.P9, a confession statement of the appellant. 21. PW12 was a Forester during May 2004 in Ponkuzhi Section of the Forest Range in Sulthan Bathery. He deposed that he along with his fellow officials arrested the appellant and four others on finding them inside the forest with pistols and other weapons and articles. He identified the appellant before the court. He stated that while questioning the appellant by himself and PW13, Assistant wildlife Warden of 15 Crl.Appeal No.632 of 2007 Sulthan Bathery Forest Range, the appellant confessed that he had been involved in the robbery committed in the Catholic Syrian Bank at Kakkanad in April, 2003. The statement so given by the appellant was taken down and it is Ext.P9. It carries the signature and thumb impression of the appellant. The learned counsel for the appellant would submit that Ext.P9 was obtained by coercion and the same is vitiated by Sections 24, 25 and 26 of the Evidence Act, 1872. 22. The appellant happened to be arrested by PW12 quite accidentally. As the person in charge of the forest range, PW13 questioned the appellant and it was at that time he made such a revelation. PW13 was not a person empowered to investigate this case and not a police officer. There is nothing on record to show that there was coercion to give such a confession, for PW13 did not have any prior knowledge about the robbery in question and also the involvement of the appellant in such a robbery. Therefore, it is absolutely impossible to attribute any kind of coercion compelling the appellant to give Ext.P9. 16 Crl.Appeal No.632 of 2007 23. The confession is not vitiated as contended by the learned counsel for the appellant. Of course, confession of an accused is a weak piece of evidence and that by itself is insufficient to convict an accused. (See: **Rahim Beg v. State** **of Uttar Pradesh AIR 1973 SC 343]; Jagta v. State of Haryana [AIR 1974 SC 1545];** and **Kishore Chand v. State of Himachal Pradesh [AIR 1990 SC 2140]** ). But, here the said confession is not an isolated item of evidence. It has to be considered in the light of the other evidence that has been brought in by the prosecution regarding the occurrence and involvement of the appellant. The evidence in that regard, including identification of the appellant before the court by PWs.1 and 2, which is adverted to above, is sufficiently corroborated by the confession. 24. From what is stated above, it is established that the appellant together with two others had committed robbery of Rs.1 lakh and while so they were in possession of deadly weapons. In that course, they attempted to cause grievous hurt to PWs.1 and 2 and other members of the staff in the 17 Crl.Appeal No.632 of 2007 Catholic Syrian Bank, Pattupurakkal Branch at Kakkanad. For the purpose of committing that offence they had trespassed into the said bank. The findings of the court below in the above regard are based on sufficient evidence and not liable to be interfered with. The sentence imposed is not exorbitant, but only commensurate to the offence. This appeal therefore fails. The appeal is dismissed. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr