Rajendran S/o Ankathevar v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 12[TH] DAY OF JANUARY 2024 / 22ND POUSHA, 1945 CRL.A NO. 2346 OF 2006** **AGAINST THE JUDGMENT DATED 12.01.2006 IN S.C.NO.243/2005 OF THE ADDITIONAL SESSIONS COURT(ADHOC-1), THODUPUZHA** **APPELLANT/ACCUSED NO.7:** **RAJENDRAN S/O.ANKATHEVAR, HOUSE NO.1/1, MELEGOODALLUR BHAGOM, MADURAI DISTRICT. BY ADVS. SRI.GRASHIOUS KURIAKOSE (SR.) SRI.PRANOY K.KOTTARAM** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA DY.S.P. OF POLICE, KATTAPPANA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. PUBLIC PROSECUTOR** **SMT SEENA C.- PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.A.No.2346 of 2006 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.A.No.2346 of 2006 ----------------------------------------------------------Dated this the 12[th] day of January, 2024** ## **J U D G M E N T** In this appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973, the appellant assails his conviction and sentence for offences punishable under Section 457 and 397 of the Indian Penal Code, 1860(IPC) by the Additional Sessions Court (Adhoc-I), Thodupuzha in Sessions Case No.243 of 2005. The appellant was accused No.7. Other accused were absconding. 2. PW1 is the husband and PW2 is his wife. The case originated on the basis of Ext.P1 FI statement recorded from PW1. The allegations were that at about 1 O' Clock in the night on 21.10.1990, accused, who were 9 in number reached the house of PW1, broke open the front door of the house and tresspassed into it. After gaining entry to the house, the 2[nd] accused assaulted PW1 using an iron rod, the 4[th] accused inflicted a stab injury on his forehead and grabbed the gold chain owned by PW2. The accused together 3 Crl.A.No.2346 of 2006 ransacked house. 7 gold bangles weighing 13.5 sovereigns, other gold ornaments weighing 4.5 sovereigns, two rings weighing 1 sovereign, besides 2 ear studs weighing half a sovereign, silver bracelets, 2 watches, 1 Clock and a few clothes were stolen from the house. The stolen articles together worth Rs.66,500/-. 3. The dacoits left the house after locking up, PWs 1 and 2 in one of the rooms in the house. They, however, manged to come out and inform the others. Police came by around 4.30 in the morning. PW1 was taken to the hospital, where he was treated. On the basis of a statement recorded from PW1, the crime was registered and investigated into. On filing the final report, the matter was committed to the court of Sessions, Thodupuzha from where it was made over to the Additional Sessions Judge (Adhoc-I), Thodupuzha for trial and disposal. Before the said court, the appellant was tried on a charge for the offence under section 457 and 397 of the IPC. PWs 1 to 7 were examined. Exts.P1 to P7 were marked and MOs 1 and 2 were identified. After appreciating the evidence, the court below found the appellant guilty of 4 ## Crl.A.No.2346 of 2006 the offence under Section 457 and 397 of the IPC. 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. 5. Contentions of the learned counsel for the appellant are that identification by PWs 1 and 2 of the appellant first time in court, that too after so many years of the date of occurrence cannot be believed. When no test identification parade was conducted, the identification by PWs 1 and 2 before the court is totally worthless. The allegations are that the accused have stolen so many articles including clothes. When no stolen article has been recovered, the prosecution is bound to fail. When the said evidence is inherently infirm, the lack of recovery makes the prosecution case unreliable. 6. The learned counsel for the appellant would further submit that conviction of the appellant for an offence under Section 397 of the IPC erroneous. Even if the whole evidence tendered by PWs 1 and 2 is believed, no offence under Section 397 is made out inasmuch as the appellant did not use any deadly weapon or caused grievous hurt or 5 ## Crl.A.No.2346 of 2006 attempted to cause death or grievous hurt. There is no such allegations even against the appellant. In that regard the learned counsel for the appellant places reliance on **Ganesan and others v. State rep. By Station House officer and others[AIR 2021 SC 5643].** 7. The learned Public Prosecutor, on the other hand, would submit that the nature and circumstances of the offence were such that identification of the assailant by PWs 1 and 2 before the court can certainly be acted upon. When the appellant was with PWs 1 and 2, guarding them for more than an hour, his identification by PWs 1 and 2 cannot be doubted. Regarding the offence that may constitute, the learned Public Prosecutor would submit that even if Section 397 of the IPC is not attracted, Section 395 of the IPC is definitely attracted on the proven facts in the case. 8. PWs 1 and 2 deposed almost in identical terms regarding the incident. Their version is that on hearing the dog barking, they woke up and then saw about 10 persons approaching the house. When they were watching, the assailants broke open the front door and entered inside. 6 ## Crl.A.No.2346 of 2006 Regarding the tools to broke open the door, the versions of PWs 1 and 2 contains a few inconsistencies. Whether a stone was used to break open the door is not cogently stated by PWs 1 and 2. But that aspect has no much relevance. PWs 1 and 2 were inside. From the sounds they heard alone they found as to what was the weapon used. The fact that the assailants stormed inside by breaking open the door is sufficiently proved. Therefore the aforementioned inconsistencies have not much relevance. 9. Coming inside, the assailants had started searching for the valuables. It is the consistent version of PWs 1 and 2 that the assailants asked them to handover key of the almirah and they tried to search out valuables. After making both PWs 1 and 2 sit on the sofa in the front room of the house, the assailants have searched the house. It is the definite version of PWs 1 and 2 that the appellant who is the 7[th] accused was guarding them while others ransacking the house. While so, the appellant threatened PW2 to handover her gold chain. It is the further version of PWs 1 and 2 that the appellant warned them not to disclose that fact to other 7 ## Crl.A.No.2346 of 2006 assailants. When PWs 1 and 2 categorically deposed that for more than an hour, the appellant was in front of them guarding them not to raise any alarm. In the said circumstances, their identification of the appellant even though it was after a few years, cannot be said to be unreliable. When the appellant was seen for such a long period in a such a horrifying situation, his figure must have been left indelibly in their mind. 10. It is true that no test identification parade was conducted. Considering the nature of the incident, the investigation officer ought to have conducted a test identification parade. PW7, the investigating officer, has offered an explanation during examination in court that after the arrest of the appellant along with a few others, he was happened to be seen by PWs 1 and 2 and therefore, there was relevance for a test identification parade. 11. The learned counsel for the appellant brought to my notice the observations of this Court in **Saji Joseph v. State of Kerala [2023/KER/20966]** that in a case where the accused are strangers to the witnesses, a test 8 ## Crl.A.No.2346 of 2006 identification parade shall invariably be conducted. It is true that a test identification parade is always a rule of prudence and a tool of proper investigation to ensure that the actual culprit alone is implicated in the case especially, when the accused are strangers to the witnesses. But that is not always a necessary requirement if the evidence tendered by the witnesses is reliable and devoid of blemishes in regard to the identification of the culprits. Lack of identification cannot be a reason to reject the evidence always. 12. As stated, PWs 1 and 2 deposed convincingly before the court that they could identify the appellant. They gave the reasons also. For more than one hour, the appellant was with them. Regarding availability of the light in the room at that time, there cannot be any doubt. If the assailants who are total strangers could do all the alleged acts, it can certainly be inferred that, there was enough light in the room. From Ext.P2 Scene Mahazar, it is seen that house was electrified and electric bulbs were provided. PWs 1 and 2 deposed that they switched on the light noticing the persons approaching the house. In such circumstances, it 9 ## Crl.A.No.2346 of 2006 can certainly be held that the electric light was available at the time of occurrence. It was in such a situation, PWs 1 and 2 saw the appellant for more than one hour. Therefore, his identification by PWs 1 and 2 before the court can certainly be believed even in the absence of a test identification parade. 13. True, no stolen article has been recovered. PW7, investigation officer has stated before the court why the stolen articles could not be recovered. The reasons stated by him are plausible and sufficient. In the absence of any recovery, certainly the disclosure, if any, made by appellant or any other accused cannot have any relevance. But in this case, the fact of theft has been proved by the oral testimonies of PWs 1 and 2. Involvement of the appellant in the act of theft also is proved. Therefore the lack of recovery is not a reason to reject the case of the prosecution. 14. From the proved facts, it can be found that the appellant tresspassed into the house of PWs 1 and 2 during night after braking open its front door in the company of 8 others. As pointed out by the learned counsel for the 10 ## Crl.A.No.2346 of 2006 appellant, the evidence would not reveal that the appellant had any weapon with him. Although PW2 stated that she was threatened to handover the gold chain owned by her, there is no allegation that the appellant attempted to cause death or grievous hurt to either PW1 or PW2. In such circumstances, an offence under Section 397 of the IPC cannot be attributed in the light of the law laid down in **Ganesan** supra, where it was held that word “Offender” used in Section 397 of the IPC refers to only culprit who actually used deadly weapon. It only envisages the individual liability and not any constructive liability. Section 397 of the IPC is attracted only against the particular accused who used the deadly weapon or does any of the acts mentioned in the provision.” 15. Accordingly, I hold that the finding of the trial court that the appellant has committed the offence as alleged is not liable to be interfered with. But conviction for an offence under Section 397 is incorrect since the acts proved constitute an offence under Section 395 alone besides Section 457 of the IPC and, not under Section 397 of 11 ## Crl.A.No.2346 of 2006 the IPC. 16. Accordingly, the conviction of the appellant is altered to one under Sections 457 and 395 of the IPC. Correspondingly, the sentence is also modified. The appellant is sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.5,000/- under Section 457 of the IPC and to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.5,000/- under Section 395 of the IPC. In default of payment of fine, the appellant shall undergo simple imprisonment for a period of months each. The term of substantive sentence shall run concurrently. Set off of eligible period is allowed. Appeal is allowed in part in the above terms. Sd/- **P.G. AJITHKUMAR JUDGE** PV