Nazeem v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **MONDAY, THE 12TH DAY OF NOVEMBER 2012/21ST KARTHIKA 1934** **Crl.Rev.Pet.No. 1339 of 2004 ( )** **--------------------------------** **CRA.99/1998 of I ADL.D.C., TRIVANDRUM SC.36/1997 of I ADDL.SUB COURT,TRIVANDRUM** **REVISION PETITIONER(S)/1ST APPELLANT/1ST ACCUSED::** **-------------------------------------------------** **NAZEEM, T.C.2/344, KAMPANYVILA VEEDU, MANACAUD THIRUVANANTHAPURAM.** **BY ADV. SRI.G.SUDHEER** ## **COMPLAINANT(S)/RESPONDENT/COMPLAINANT::** **---------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12-11-2012, A/W. Crl.R.P.No. 1385/2004 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** S.SIRI JAGAN, J. ================== Crl.R.P.Nos.1339 & 1385 of 2004 ================== Dated this the 12[th] day of November, 2012 O R D E R Crl.R.P.No.1385/2004 was posted today. The same is filed by accused Nos.3 and 4 in Sessions Case No.36/1997 before the I[st] Assistant Sessions Judge, Thiruvananthapuram. The 1[st] accused in the very same Sessions Case has filed Crl.R.P.No. No.1139/2004. That was filed by the same advocate, who is appearing for the petitioners in the other Criminal Revision Petition. Therefore, as agreed to by counsel, Crl.R.P.No.1339/ 2004 was also called for and heard along with the other Criminal Revision Petition. 2. The petitioners in these Criminal Revision Petitions are accused Nos.1, 3 and 4 in Sessions Case No.36/1997 before the I[st] Additional Assistant Sessions Judge, Thiruvananthapuram. They were prosecuted for offences punishable under Section 395 of the Indian Penal Code. 3. The prosecution case is as follows:-. “2. ...... The accused with their dishonest intention of committing robbery of the gold ornaments worn by CWs 1 and 2 by threatening them with violence by showing dangerous weapons, at about 8.45 p.m. on 14.11.95 at the lane which lies east-west on the eastern side of the public road leading to Mettukada from Thycaud Sangeeth Nagar Model School junction in Thycaud village A1 snatched away a gold chain, weighing 15 grams by force worn by CW1, A2 threatened CW2 by showing a chopper, A2 and A3 snatched away six gold bangles weighing 3/4 Crl.R.P.1339/04 & cc - : 2 :- sovereigns each which were worn by CW2 by force. A4 threatened CW1 by showing a chopper and snatched away a gold ring by biting weighing 8 grams from the ring finger of CW1 by force, A5 and A6 aided the other accused persons in the commission of the offence thereby all the accused conjointly committed robbery of the gold ornaments worn by CWs 1 and 2 by force worth Rs. 25,000/-. On the basis of the statement given by CW1 at about 10.30 p.m. on 14.11.95 at the Cantonment Police Station CW13 recorded his statement and a case was registered under Section 392 I.P.C. Subsequently, CW14 took up the investigation, visited the scene of offence and prepared a scene mahazar in the presence of CW11. On investigation, it was revealed that all the accused have committed an offence punishable under Section 395 I.P.C. and hence a report was sent to the court deleting Section 392 IPC and incorporating Section 395 I.P.C. During investigation, A6 was arrested from the Housing Board junction on 29.11.95. A5 was arrested at 8. p.m. on 8.1.96 at Killipalam junction, A4 was arrested at 6 p.m. on 28.1.96 from his house and A1 to A3 were arrested at 1 P.M., on 6.2.96 from in front of the D.D. Office at Killippalam by CW14. On the basis of the confession given by A1 and A2, the gold ornaments were recovered from the Aryasala Jewelery shop by CW14 under a mahazar. The accused and the stolen articles were got identified by witnesses during investigation. Out of the six gold bangles, two gold bangles kept concealed by A2 near the Attukal wooden bridge without the knowledge of the other accused persons were somehow lost and therefore, they could not be recovered. The weapons used by the accused for the commission of the offence were subsequently thrown away by them at the river near Attukal wooden bridge and that therefore the weapons could not be recovered. After completing the investigation, the present charge sheet was laid against the accused for the offence mentioned above.” 4. The prosecution examined PWs 1 to 14, marked Exts.P1 to P9 documents and produced MOs 1 to 3. The accused did not adduce any evidence. After considering the evidence adduced by the prosecution, the Additional Assistant Sessions Judge found four of the six accused including the petitioners in these Criminal Revision Petitions guilty and sentenced them to undergo rigorous imprisonment for seven years each with set off under Section 428 of the Cr.P.C. Accused Nos.5 and 6 were Crl.R.P.1339/04 & cc - : 3 :- acquitted. Accused Nos.3 and 4 filed Crl.Appeal No.98/1998 and accused Nos. 1 and 2 filed Crl.Appeal No.99/1998 before the I[st] Additional Sessions Judge, Thiruvananthapuram. Both the appeals were heard together and by a common judgment, the Sessions Judge confirmed the conviction, but reduced the sentence to rigorous imprisonment for two years and fine of ` 2000/- with a default sentence of simple imprisonment for three months each. Set off was allowed under Section 428 of the Cr.P.C. These Criminal Revision Petitions are filed by accused Nos.1, 3 and 4 challenging the judgments of the courts below. 5. The petitioners raise three contentions. The first is that there is no reliable evidence adduced by the prosecution for convicting them. According to them, there are serious contradictions in the evidence of PWs 1 and 3, who were the persons, from whom, the gold ornaments were stated to have been stolen by the accused, particularly regarding the accused, who took the chain, bangles and ring. Therefore, the evidence could not have been relied upon to convict the petitioners, is their contention. According to the petitioners, the identification of the accused is suspect in this case. PWs 1 and 3 had not seen the accused before the date of the incident. No test identification parade was conducted, without which, there cannot have any Crl.R.P.1339/04 & cc - : 4 :- proper identification of the accused. Lastly, a contention is raised that the material objects produced before the court were got made by the jewelery shop owners and they are new ornaments as is clear from the deposition of the witnesses. According to the petitioners, since the prosecution has not succeeded in proving the guilt of the petitioners beyond a reasonable doubt, they are entitled to acquittal in this case. 6. In answer, the learned Public Prosecutor would contend that as is clear from the concurrent judgments of the courts below, there is sufficient evidence to prove the guilt of the petitioners beyond a reasonable doubt. It is pointed out that the discrepancies pointed out by the petitioners are not material so as to render the whole evidence unacceptable. It is submitted that the conduct of test identification parade is not mandatory and the accused have no right to have test identification parade conducted. On this point, the learned Public Prosecutor relies on the decision of the Supreme Court **Sheo Shankar Singh v. State of Jharkhand and another** , (2011) 3 SCC 654. In this case, according to the learned Public Prosecutor, identification by PWs 1 and 3, who had occasion to see the accused for six-toseven minutes at the time of the incident, have positively Crl.R.P.1339/04 & cc - : 5 :- identified the accused in court and, therefore, the absence of test identification parade does not in any way affect the validity of the identification made by PWs 1 and 3. It is submitted that apart from the same, on the confessions made by two of the accused, the gold ornaments were recovered from two jeweleries. Such recovery has been proved by the attesting witnesses, who signed the mahazar for such recovery. As such, there is sufficient evidence to prove the guilt of the petitioners beyond a reasonable doubt is the contention raised. 7. I have considered the rival contentions in detail. 8. At the outset, I must remind myself that I am not expected to re-appreciate the evidence in a Criminal Revision Petition under Section 397 of the Cr.P.C. All I can consider is whether the appreciation of evidence by the courts below is perverse. Here, two judicial officers have concurrently found the evidence adduced as convincing enough to convict the petitioners. PWs 1 and 3 were giving evidence after two years. The fact that in their evidence the accused, who took the chain, bangles and ring were inter-changed cannot have any affect to render their entire evidence unacceptable. It is only natural that such discrepancies occur when evidence is given two years after the incident. No test identification parade has been conducted Crl.R.P.1339/04 & cc - : 6 :- in this case. In **Sheo Shankar Singh's case** (supra), the Supreme Court has categorically held that the Code of Criminal Procedure does not oblige the investigating agency to necessarily conduct a test identification parade, nor is there any provision, under which, the accused may claim a right to hold a test identification parade. The Supreme Court has further held that conducting of test identification parade is in the realm of the investigation for corroboration of evidence of witnesses and in appropriate cases, there is nothing wrong in the court in accepting the evidence of identification in court, even without insisting on corroboration. In this case, PWs 1 and 3 have positively identified the petitioners as the persons who took the chain, bangles and ring from PWs 1 and 3. Although they were elaborately cross-examined on the same, their evidence could not be shaken. They have stated that they had occasion to see the accused for six-to-seven minutes and, therefore, they remembered their faces very well. I do not find any infirmity in the identification made by PWs 1 and 3 of the accused in the court. Therefore, I do not find any merit in the contention of the learned counsel for the petitioners that there is no proper identification of the accused in this case. Crl.R.P.1339/04 & cc - : 7 :- 9. Although the jewellers from whose jewelleries, the gold ornaments were recovered, turned hostile and gave evidence to the effect that no stolen gold was recovered from their shop, the mahazar witnesses for recovery, properly identified the seizure mahazar. They deposed that they saw the gold being recovered from the jewelleries in the presence of the accused. As such, reading the evidence as a whole, I have no hesitation to hold that there is no perversity in the appreciation of evidence by the courts below. The fact that some of the accused said that the material objects produced looked new does not in any way affect the prosecution case insofar as if the gold ornaments are polished, the same will look new. In addition, PWs 1 and 3 identified the seized gold ornaments as theirs. For all the above reasons, I am unable to find any perversity in appreciation of evidence by the courts below. Therefore, I do not find any merit in these Criminal Revision Petitions and accordingly, the same are dismissed. sdk+ **==> picture [179 x 29] intentionally omitted <==** ///True copy/// P.A. to Judge Crl.R.P.1339/04 & cc - : 8 :-