Ratheesh s/o Narayanan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH ``` ``` TUESDAY, THE 2[ND] DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943 ``` ``` CRL.REV.PET NO. 1585 OF 2005 ``` ``` AGAINST THE JUDGMENT IN CRA 474/2004 OF V ADDITIONAL SESSIONS COURT, ERNAKULAM ``` ``` CC 262/1999 OF CHIEF JUDL.MAGISTRATE, ERNAKULAM ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` RATHEESH S/O NARAYANAN KURASSERYPARAMBIL HOUSE, VALIYAKULAM ROAD,, PAMBAIMOOLA BHAGOM, EDAKOCHI. BY ADVS. SRI.RAJIV NAMBISAN SMT.AJI S.MENON ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ``` ``` BY ADV PUBLIC PROSECUTOR SRI.SANAL P.RAJ ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.R.P.No.1585/2005 ``` ## `-:2:-` ## `O R D E R` ``` Dated this the 2[nd] day of November, 2021 ``` This revision petition has been filed against the judgment in Crl.Appeal No.474/2004 dated 31[st] January, 2005 on the file of the V[th ] Additional Sessions Court, Ernakulam (for short, ‘the appellate court’) confirming the judgment in CC No.262/1999 dated 30[th] April, 2004 on the file of the Chief Judicial Magistrate Court, Ernakulam (for short, ‘the trial court’). 2. The accused is the revision petitioner. He faced trial for an offence punishable u/s 394 of IPC. 3. The prosecution case in short is that on 27/7/1997, at about 7.00 p.m, when PW1 was sitting in the Subhash Bose Park at Ernakulam, the accused went near to him and after talking for some time, he got acquainted with PW1 and when the power went off, the accused fisted on the chest of PW1 and snatched the gold chain with ‘ _elas’_ worn by him and ``` Crl.R.P.No.1585/2005 ``` ``` -:3:- ``` thereafter he pushed down PW1 into the nearby pond. On hearing the sound, PW2 who was in the park reached the spot. Thereafter, PW1 and PW2 went to the Central Police station and preferred the complaint. 4. The accused appeared at the court below. After hearing both sides, charge u/s 394 of IPC was framed against the accused. The charge was read over and explained to the accused who pleaded not guilty. 5. The prosecution examined PWs 1 to 5 and marked Exts.P1 to P6. MO1 was identified. After the completion of the prosecution evidence, the accused was questioned u/s 313 of Cr.P.C. He denied all the incriminating circumstances brought against him in evidence. No defence evidence was adduced. Considering the evidence on record, the trial court found the accused guilty u/s 394 of IPC and he was convicted for the said offence. The accused was sentenced to undergo simple imprisonment for three years and to pay a fine of `1,000/-, in default to suffer simple imprisonment for a period of two months. In appeal, the appellate court confirmed the conviction and ``` Crl.R.P.No.1585/2005 ``` ``` -:4:- ``` sentence passed by the trial court. The revision petitioner challenges the conviction and sentence passed by both the courts below in this revision. 6. I have heard Sri.Rajiv Nambisan, the learned counsel for the revision petitioner and Sri.Sanal P. Raj, the learned Public Prosecutor. 7. The learned counsel for the revision petitioner impeached the finding of the courts below on appreciation of evidence and the resultant finding as to the guilt. The learned counsel submitted that there was no proper identification of the accused or the property. Counsel further argued that the arrest of the accused was not proved. The learned counsel also submitted that the evidence of the occurrence witness are full of contradictions and omissions. The learned Public Prosecutor on the other hand supported the findings and verdict handed down by the court below and argued that necessary ingredients of S.394 of IPC had been established and the prosecution has succeeded in proving the case beyond reasonable doubt. 8. The prosecution mainly relied on the evidence ## `Crl.R.P.No.1585/2005` ## `-:5:-` of PWs 1 and 2 and recovery of MO1 gold chain consequent to the confession statement of the accused u/s 27 of the Evidence Act to prove the incident and to fix the culpability on the accused. 9. PW1 is the defacto complainant. He gave evidence that when he was sitting at the Subash Park on 27/7/1998 at 6.30 p.m, the accused came there and sat near to him. Thereafter they had a chat and both of them got acquainted with each other. He further deposed that at 7.00 p.m, when there was a power cut, the accused fisted on his chest and snatched the gold chain worn by him. He added that thereafter the accused pushed him to the nearby pond and ran away from the scene of occurrence. PW2 is an occurrence witness. He gave evidence that he was in the park at about 6.30 p.m. He saw the accused and PW1 engaged in conversation. He further deposed that, after some time, at the time of power cut, he heard the sound of something falling into the nearby pond and saw the person who was sitting nearby PW1 running away. He then went to the pond and rescued PW1. He further deposed that PW1 told him that the accused snatched away his gold chain and pushed ## `Crl.R.P.No.1585/2005` ## `-:6:-` him into the pond. The evidence of PW1 and PW2 would show that both of them thereafter went to the police station and gave Ext.P1 FI statement. 10. Both PW1 and PW2 were cross-examined in length by the learned counsel for the accused. But nothing tangible has been extracted from their evidence to create any shadow of doubt that they are not truthful witnesses. PW1 clearly deposed about the manner in which the accused attacked him and robbed his gold chain. PW2 also witnessed the accused and PW1 talking to each other prior to the incident and thereafter at the time of power cut, accused running away and PW1 was found in the nearby pond. Both PW1 and PW2 gave reliable, consistent and credible version of the crime and their evidence inspires confidence. The learned counsel for the revision petitioner submitted that there was no proper identification of the accused as well as the property. The submission of the learned counsel is that the investigation agency could have conducted test identification parade. In support of his argument, learned counsel relied on the decision of the Apex Court in _**Kunjumon @ Unni v.**_ ``` Crl.R.P.No.1585/2005 ``` ## `-:7:-` _**State of Kerala**_ [2013 AIAR (Criminal) 211]. It was held that the test identification parade is a rule of prudence which is required to be followed in cases where the accused is not known to the witness or to the complainant. But in the very same decision, it was held that failure to hold a test identification parade is not fatal to the case of the prosecution. The question is whether there was proper identification by the accused at the court. I find from the evidence given by PW1 as well as PW2 that both of them clearly identified the accused at the court. I am of the view that the said identification is sufficient. In so far as the identification of the property is concerned, the learned counsel for the revision petitioner submitted that MO1 gold chain was shown to PW1 at the police station after it was recovered and thereafter he identified the same at the court. The learned counsel relied on a decision of the Apex Court in _**Vijay Kumar v. State of Rajasthan**_ [2014 AIAR (Criminal) 223] wherein it was held that the witness should not not be given an opportunity of seeing the property before it is identified before the Magistrate. It is a case where the property in question belonged to PW1 ## `Crl.R.P.No.1585/2005` ## `-:8:-` himself. Therefore, the fact that the property was shown to him during investigation is insignificant. That apart, MO1 was seized in connection with another crime. Therefore, it was necessary for the investigating agency to show MO1 to PW1 and get it identified to proceed further with the investigation. PW1 who is the owner of MO1 has clearly identified the same. The learned counsel further submitted that the arrest of the accused was also not properly proved inasmuch as no arrest memo is produced. It is true that no arrest memo is produced. But, the evidence of PW5 would show that he was arrested in connection with another crime and his formal arrest was recorded in that crime. 11. As stated already, PW1 and PW2 have clearly deposed about the incident. There is no vital contradictions or material omissions in their evidence affecting the prosecution evidence. They had identified MO1 as well as the accused at the court. Therefore, I hold that the evidence of PW1 and PW2 can safely be relied on to prove the incident and to fix the culpability on the accused. 12. PW3, the owner of Rohit Jewellery at M.G.Road, ``` Crl.R.P.No.1585/2005 ``` ## `-:9:-` Ernakulam is the person who purchased MO1 gold chain from the accused. His evidence would show that on 8/8/1998, the accused sold MO1 to him for `5,000/-. His evidence on record would show that on the basis of the confession statement given by the accused in the other crime, PW5, the Circle Inspector of Police, went to the jewellery of PW3 and recovered MO1. There is nothing to disbelieve the evidence given by PW3 and PW5 with regard to the recovery. The learned counsel for the revision petitioner argued that PW3 is only a chance witness. PW3 cannot be termed as a chance witness inasmuch as he came into the picture on the basis of the disclosure statement made by the accused to the police that he had sold the property to him. Thus, the evidence of PW3 gets corroboration from the evidence given by PW1 and PW2. 13. It is settled that the revisional jurisdiction was to confer power upon superior courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness of ## `Crl.R.P.No.1585/2005` ## `-:10:-` treatment. It has been consistently held by the Apex Court that the jurisdiction of the High Court in revision is severely restricted and it cannot embark upon reappreciation of evidence. In _**State**_ ## _**of Maharashtra v. Jagmohan Singh Kuldip Singh Anand &**_ _**Others**_ [(2004) 7 SCC 659], the Apex Court held that while exercising revisional powers u/s 397 r/w 401 of Cr.P.C, the court is required to find out if there is an illegality or impropriety in the findings of the trial court and the appellate court warranting interference and it is not open to this court to exercise the revisional power as second appellate forum. In _**Shlok Bhardwaj**_ _**v. Runika Bhardwaj and Others**_ [(2015) 2 SCC 721], the Apex Court held that the scope of revisional jurisdiction of the High Court does not extend to reappreciation of evidence. I have carefully gone through the records and the proceedings and the judgments of the courts below. There is nothing to show that the findings recorded by the trial court or the appellate court are vitiated by illegality or impropriety warranting interference of this court u/s 397 r/w S.401 of Cr.P.C. 14. The learned counsel for the revision petitioner ``` Crl.R.P.No.1585/2005 ``` ``` -:11:- ``` submitted that the substantive sentence may be set aside and the conviction may be confined to fine. I cannot accept the said submission for the reason that the offence alleged against the revision petitioner is serious in nature. That apart, he is involved in a similar offence. However, considering the fact that he is facing trial of the court since 1999, I am of the view that substantive sentence can be reduced to two years. In view of the above findings, I confirm the conviction passed by the courts below. The substantive sentence is reduced to two years. The revision petition is allowed in part to that extent. ``` Sd/- ``` ``` DR. KAUSER EDAPPAGATH ``` ``` JUDGE ``` ## **`Rp`**