SASI @ SASIDHARAN v. STATE OF KERALA

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 19TH DAY OF OCTOBER 2012/27TH ASWINA 1934 Crl.Rev.Pet.No. 1624 of 2003 (D) -------------------------------CRA.52/2001 of III ADDL. DISTRICT COURT, THRISSUR CC.729/1998 of J.M.F.C.,KUNNAMKULAM ## REVISION PETITIONER(S): ------------------- SASI @ SASIDHARAN, S/O. KUTTAPPAN, PORADAN HOUSE, NETTISSERY VILLAGE, NELLANGARA DESOM, THRISSUR DISTRICT BY ADVS.SRI.P.VIJAYA BHANU SMT.P.MAYA COMPLAINANT(S): --------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR SMST. JASMINE .H. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## N.K. Balakrishnan, J. ............................................ **Crl.R.P. 1624 of 2003** ............................................ ## Dated: 19-10-2012 ## ORDER The petitioner was concurrently held guilty of the offence under section 379 of IPC and was sentenced to undergo rigorous imprisonment for one year. This petition is directed against the said conviction and sentence. 2. The case of the prosecution is that on 7.7.1998 at about 8.45 a.m., PW1 was walking through AndaparambuPuttekkara public road and when she reached near the house of one Ammini, the petitioner reached there on a motor cycle and snatched the gold chain worn by P.W.1 weighing 32 grams. It was stated that she could identify the accused who snatched the gold chain. She went to the police station immediately and lodged Ext. P1- F.I. Statement at 9.30 am, pursuant whereto F.I.R. was **Crl.R.P. 1624 of 2003** -:2:- registered. The Circle Inspector of Police (PW10) arrested the petitioner. Based on the disclosure statement given by the accused and as led by the accused, PW10 went to the house of PW7 from where the gold ingot, sold by the accused to PW7, was seized in the presence of PW8. It was seized as per Ext. P3 seizure mahazar. The gold ingot weighed 30.900 grams. The actual evidence of snatching of gold chain from the neck of PW1, spoken to by P.W.1 was corroborated by the evidence of PW4. It also gets corroboration from the evidence of PWs 2 and 3, as they reached the scene immediately on hearing the cry of PW1, who had screamed stating that her gold chain was snatched away. Placing reliance on the evidence as aforesaid, the learned Magistrate found the petitioner guilty and convicted him as stated above. The learned Sessions Judge re-appreciated the evidence and concurred with the conviction and sentence passed by the trial court. 3. The learned counsel for the revision petitioner submits that no Test Identification Parade was conducted **Crl.R.P. 1624 of 2003** -:3:- and so there is no legal evidence to prove the identity of the person who was stated to have snatched the gold chain. It is also contended that the petitioner was falsely implicated in this case out of animosity. It is further contended that since only gold ingot was seized, there is no acceptable evidence to connect the accused with the alleged crime. 4. This submission is resisted by the learned Public Prosecutor, who would submit that the accused was actually shown to PW1 after he was arrested by the Circle Inspector. The evidence given by PW1 would show that the accused was seen in the Police Station and she had identified him from there also. It was specifically stated that she could identify the person who snatched the gold chain. It was so stated in Ext.P1 which was given by her at the earliest point of time. She has given evidence that it was the accused who snatched the gold chain. 5. It is true that identification of the accused for the first time in court may be a weak evidence, but in this case it is not a case where PW1 did see the accused only in court **Crl.R.P. 1624 of 2003** -:4:- after the incident, but the accused was shown to her in the Police Station after he was arrested. Therefore, it cannot be said that the evidence given by PW1 is unacceptable. There was no reason for PW1 to depose falsehood against the petitioner, it is argued. 6. Though PWs 2 and 3 may not have actually seen the snatching of gold chain, the evidence given by PWs 2 and 3 is admissible under section 6 of the Evidence Act, since the factum of their hearing the scream and reaching the place of incident and PW1 telling them that her gold chain was snatched away would certainly corroborate the evidence of PW1. Besides, there is also the unassailable evidence given by PW4 that she did see the accused snatching the gold chain from the neck of PW1. The further fact is that when the accused was arrested he gave a disclosure statement which led to the discovery of M.O.1 gold ingot. It was made by melting the gold chain snatched from the possession of PW1, the prosecution contends. **Crl.R.P. 1624 of 2003** -:5:- 7. The learned counsel for the petitioner has relied on the decision of the Apex Court in **Rameshwar Singh v. State of Jammu and Kashmir- AIR 1972 SC 102, Mohanlal Gangaram Gehani v. State Maharashtra - 1982 SC 839** and **Vindo Samuel v. Delhi Administration - AIR 1992 SC 465** in support of his submission that where the accused person is not known previous to the occurrence to the witnesses identifying the accused at the trial, then identification of the accused by such witness soon after the former's arrest is of vital importance in the interest of justice. In **Rameshwar Singh's** Case (supra) the accused was charged for offence under Sections 302 and 307 I.P.C. In the decision in **Mohanlal Gangaram Gahani's case** (supra) the accused was tried for an offence punishable under Sec. 326 read with Sec. 34 I.P.C. The learned counsel for the petitioner would submit that the decision in **Vindo Samuel's case** rendered in a case of theft where the allegation was that when a woman was travelling in bus, her gold chain was **Crl.R.P. 1624 of 2003** -:6:- snatched. On her shouts, accused was chased and caught. But, her gold chain was not recovered from the accused. In that case none of the prosecution witnesses had seen the person who actually snatched the chain. The facts in the present case are totally different. P.W.1 the woman whose gold chain was snatched while she was walking by the side of the road has stated even in Ext.P1 that she could identify the accused. When the accused was arrested P.W.1 was taken to the police station from where she identified the accused. Her evidence to that effect could not be effectively controverted. As pointed out earlier, her evidence is further corroborated by P.W.4 and also to some extent by P.Ws 2 and 3, the learned Public Prosecutor submits. Relying upon the decision of the Apex Court in **Malkhansingh and others v. State of Madhya Pradesh - (2003) 5 SCC 746,** it is submitted that as a general rule the substantive evidence of a witness is the statement made in Court. It is not a case where the accused was identified by the witness for the first time at **Crl.R.P. 1624 of 2003** -:7:- the trial. But, here P.W.1 had opportunity to see the accused again when the accused was arrested. The learned counsel for the petitioner submits that P.W.4 in crossexamination has stated that she could not see the face of the accused. But on a reading of the entire evidence it can be seen that P.W.4 had the opportunity to identify the person who snatched the gold chain of P.W.1. To crown it all, there is the recovery of the gold ingot which was had pursuant to the disclosure statement given by the accused. The decision in **Malkhansingh's** case was followed by the Supreme Court in **Pramod Mandal v. State of Bihar** - reported in **(2004) 13 SCC 150** . A Division Bench of this Court in **Manikuttan @ Sajay & Ors. v. State of Kerala of Police - 2012 (4) KLJ 237** has, following the two decisions mentioned above, held that the identification made by the prosecution witnesses from the witness box, which is the substantive evidence, cannot be rejected. Acceptability of identification of the accused by the prosecution witnesses from the witness box depends on **Crl.R.P. 1624 of 2003** ## -:8:- the trustworthiness and reliability of the evidence given by such witnesses. Here, the two courts below after scanning the evidence thoroughly, found no difficulty to place reliance on the evidence given by P.W.1 which was supported by P.W.4 and to some extent by P.Ws 2 and 3 which was further fortified by the recovery of the gold ingot pursuant to the disclosure statement given by the accused. Therefore, I find no illegality, irregularity or impropriety in the finding of guilt entered by the courts below. The conviction is to be thus sustained. 8. The learned counsel for the petitioner now submits that leniency may be shown in the matter of sentence. This request is strongly resisted by Smt. Jasmine, the learned Public Prosecutor who points out that instances of snatching of gold chains are rampant and it is increasing day-by-day that it is unsafe for a woman to walk along the side of the road by wearing even her 'thali' chain. Considering the gravity of the offence, deterrent sentence is warranted, the learned Public ## **Crl.R.P. 1624 of 2003** -:9:- Prosecutor submits. The sentence must commensurate with the gravity of the offence . It must give a proper signal to such potential offenders. In this case, the court below has already shown undue leniency by sentencing the petitioner only to imprisonment for one year . I find no reason to to interfere with the sentence. 9. In the result, this Crl.R.P. is dismissed confirming the conviction entered and the sentence passed against the petitioner. The learned Magistrate will take steps to execute the sentence immediately. Dated this the 19th day of October, 2012. ## Sd/-N.K. Balakrishnan, Judge. jjj/ani. ## /true copy/ ## P.SD. to Judge