CRL.R.P.No. 570 of 2017 & CRL.R.P.No. 1527 of 2017: Krishnan @ Vasanan S/O Muniswami and Madhavan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 3[RD] DAY OF JUNE 2024 / 13TH JYAISHTA, 1946 CRL.REV.PET NO. 570 OF 2017** **AGAINST THE JUDGMENT DATED 21.12.2016 IN CR.A.NO.109 OF 2015 OF THE SESSIONS COURT, ALAPPUZHA AND THE JUDGMENT DATED 14.02.2011 IN CC NO.124 OF 2010 OF CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA** ## **REVISION PETITIONER/APPELLANT/1ST ACCUSED:** **KRISHNAN @ VASANAN S/O.MUNISWAMI, RAILWAY COLONY, MADHURA, TAMIL NADU.** **BY ADVS. SRI.K.V.ANIL KUMAR SRI.P.V.JEEVESH** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.** **SRI.SHEEBA THOMAS, PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR** **FINAL HEARING ON 03.06.2024, ALONG WITH Crl.Rev.Pet.1527/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.R.P.Nos.570 & 1527 of 2017 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 3[RD] DAY OF JUNE 2024 / 13TH JYAISHTA, 1946 CRL.REV.PET NO. 1527 OF 2017** **AGAINST THE JUDGMENT DATED 19.12.2016 IN CR.A.NO.374 OF 2012 OF ADDITIONAL SESSIONS COURT-I, ALAPPUZHA AND THE JUDGMENT DATED 14.02.2011 IN CC NO.124 OF 2010 OF CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA** ## **REVISION PETITIONER/APPELLANT/ACCUSED NO.2:** **MADHAVAN** **AGED 33 YEARS, S/O.GOPALAN, KARUNANIDHI COLONY, SEELANAICKENPATTI, SALEM, TAMIL NADU-636201.** **BY ADV SRI.P.B.AJOY** ## **RESPONDENT/RESPONDENT/STATE:** ## **STATE OF KERALA** **REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, ALAPPUZHA, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031.** **SRI.SHEEBA THOMAS, PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 03.06.2024, ALONG WITH Crl.Rev.Pet.570/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 Crl.R.P.Nos.570 & 1527 of 2017 4 Crl.R.P.Nos.570 & 1527 of 2017 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.R.P.Nos.570 & 1527 of 2017 ----------------------------------------------------------Dated this the 3[rd] day of June, 2024** ## **O R D E R** The Chief Judicial Magistrate, Alappuzha convicted accused Nos.1 to 3 in C.C.No.124 of 2010 for the offences punishable under Sections 457 and 394 of the Indian Penal Code, 1860 (IPC). Each of them was sentenced to undergo rigorous imprisonment for three years under Section 457 as well as Section 394 of the IPC. The terms of the substantive sentence were ordered to be run consecutively. Aggrieved by the said judgment, the 2[nd] accused-Madhavan filed Crl.Appl.No.374 of 2012 and the 3[rd] accused-Krishnan @ Vasanan filed Crl.Appl.No.109 of 2015 before the Sessions Court, Alappuzha. Both appeals were dismissed. Hence, Sri.Madhavan filed Crl.R.P.No.1527 of 2017 and Sri.Krishnan @ Vasanan filed Crl.R.P.No.570 of 2017. 2. Heard the learned counsel for the respective revision petitioners and the learned Public Prosecutor. 5 Crl.R.P.Nos.570 & 1527 of 2017 3. The prosecution was initiated on filing a final report by the Circle Inspector of Police, Alappuzha North Police Station. The allegation was that accused Nos.1 to 3 during the night of 05.11.2009, committed criminal trespass into the house of PW1, which bears door No.115 of Ward No.16 of Aryad Panchayat by breaking open the kitchen door of that building and robbery by snatching away the gold chain owned by PW1 after beating her up using a plant pot. 4. The trial court procured attendance of the accused and framed charge against them, which they denied. At the trial, six witnesses were examined and four documents were proved on the side of the prosecution. On the basis of that evidence, the trial court found them guilty. Although the findings of the trial court were assailed, the appellate court did not accept the contentions of the petitioners and accordingly the conviction and the sentence were confirmed. 5. The learned counsel for the petitioners would submit that since there is no proper identification of the accused by PWs.1, 2 and 4 and no recovery of the articles 6 Crl.R.P.Nos.570 & 1527 of 2017 allegedly stolen was effected, the findings of the courts below cannot be said to be based on any reliable evidence. The oral testimonies of PWs.1 and 4, who are wife and husband, are totally unreliable. Indisputably, they saw the assailants only once and in the absence of any test identification parade their identification before the court cannot be believed. The learned counsel for the 2[nd] accused (petitioner in Crl.R.P.No.1527 of 2017) placed reliance in this regard on **Malkhan Singh and** **others v. State of Madhya Pradesh [2003(5) SCC 746].** The further submission of the learned counsel for the petitioners is that there is no evidence to prove inflicting of an injury to PW1 as alleged and therefore, no offence of robbery could be attracted. Similar is the contention in respect of lurking house trespass. None of the witnesses stated that the offenders entered the house having had preparations to conceal themselves and therefore, an offence of lurking house trespass would not be attracted. The further contention is that in the absence of recovery of the stolen articles a conviction for the offence of theft is wrong. Thus, it is maintained by the 7 Crl.R.P.Nos.570 & 1527 of 2017 learned counsel and the respective petitioners that the courts below recorded a conviction on totally wrong premises and based on insufficient evidence. 6. The learned Public Prosecutor would submit that there is no reason to disbelieve PWs.1 and 4 who saw the assailants in the light available in that house. When those witnesses saw the offenders inside their house, that was an alarming and disgusting situation, and therefore, they would not forget the faces of the assailants which would have been imprinted in their mind. Even in the absence of a test identification parade, they could well remember the assailants at any point of time and therefore, conviction of the accused cannot be found fault with. 7. The incident had occurred at about 01.30 in the night. PW1 deposed that on feeling somebody touching her body, she woke up and switched on the light. Her husbandPW4 also had woken up. Both of them deposed that in the light thereby available inside the house, they could see the assailants. One among them had snatched her gold chain. 8 Crl.R.P.Nos.570 & 1527 of 2017 The assailants ran out of the door of the kitchen along which they gained entry inside by breaking it open. A third person was also there who joined the other offenders to run away. All the three accused were identified by these witnesses before the court. They asserted that they could see and identify all the three assailants. 8. The Apex Court held in **Malkhan Singh** (supra) that the evidence of identification of an accused at the trial for the first time is, from its very nature inherently of a weak character. The purpose of a prior test identification parade therefore, is to test and strengthen the trustworthiness of such evidence. It is true that if a witness saw the assailants only once and they are strangers, it may not ordinarily be possible for him to identify them in court for the first time. But, that depends upon the nature of the witness and circumstances in which the witness saw the accused. Here is a case where the assailants were found inside the house at night by PWs.1 and 4, who were sleeping peacefully in the safety of their house. When strangers appear suddenly in 9 Crl.R.P.Nos.570 & 1527 of 2017 front of them and they could see the assailants for quite a reasonable time in the electric light, it cannot be said that they would not be able to identify the assailants. When PWs.1 and 4 categorically deposed before the court identifying each of the accused, their identification can be acted upon even in the absence of a test identification parade. The courts below considered the evidence in detail in that regard and concurrently held that identification of the accused by PWs.1 and 4 before the court could be believed. I find no infirmity or impropriety to the said finding. 9. True, the stolen article was not recovered. The arrest of the accused was much after the theft. The investigating officer although questioned the accused, no information regarding the stolen article could be gathered. If the stolen article was recovered, that would have rendered support to the oral testimonies of PWs.1 and 4. But when they convincingly deposed before the court regarding identity of the assailants and PW2, a neighbour who reached the place on hearing the cry of PWs.1 and 4 also identified in 10 Crl.R.P.Nos.570 & 1527 of 2017 court all the accused, there is no reason to depart from the finding of the trial court about the identity of the accused and the theft. 10. PW1 deposed that as a result of the hit using a plant pot by the assailants, she sustained injuries. No medical evidence in that regard is produced. The doctor who examined PW1 was not examined in court. Therefore, the only evidence available in that regard is the oral testimony of PW1 and, of course, PW4. That alone is insufficient to prove that PW1 sustained bodily hurt. Whereas, the prosecution proved that the accused had entered inside the house by breaking open the kitchen door of the house and snatched away a gold chain of PW1. So, commission of an offence of theft inside the house is proved. 11. In order to constitute an offence of lurking house trespass there must be evidence to show that the offender had taken some active means to conceal his presence inside the house after the trespass. This view taken by the Orissa High Court in **Akshaya Behera v. State of Orissa [1996** 11 Crl.R.P.Nos.570 & 1527 of 2017 **CriLJ 334]** is relied on by the learned counsel for the petitioner in Crl.R.P.No.1527 of 2017 in order to fortify his plea that the acts of the accused did not amount to an offence of lurking house trespass. Having regard to the facts proved in this case, I agree with the said submission. But, in order to amount an offence under Section 457 of the IPC, house breaking by night is enough in the alternative. Hence, offence the accused had committed amounted to one punishable under Section 457 of the IPC. Therefore, the offences the petitioners had committed are the offences under Sections 457 and 380 of the IPC. 12. Coming to the sentence, the learned counsel for the petitioners would submit that the trial court without having any materials before it observed that the petitioners are involved in 57 cases and therefore, they are not entitled any leniency. That tempted the trial court to impose a sentence of rigorous nature and ordered to run the substantive sentence consecutively. The appellate court did not interfere with the same. 12 Crl.R.P.Nos.570 & 1527 of 2017 13. I found that the petitioners are liable for conviction under Sections 457 and 380 of the IPC. For the said offences the petitioners shall undergo rigorous imprisonment for a period of three years each and to pay a fine of Rs.5,000/each, with a default sentence of three months. The terms of substantive sentence shall run concurrently and not consecutively. Certainly, the petitioners are entitled to get the period they had already undergone in connection with this case set off against the period of substantive sentence. These revision petitions are allowed to the above extent. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dxy/dkr