Selvaraj and Rajkumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 23[RD] DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945 CRL.APPEAL NO. 207 OF 2021** **AGAINST THE JUDGMENT DATED 28.05.2020 IN SC 541/2017 OF ADDITIONAL SESSIONS COURT (SPECIAL COURT)-II, KOTTAYAM APPELLANTS/ACCUSED 1 & 2:** **1 SELVARAJ AGED 50 YEARS, S/O RAMAN, BEHIND RAJA HIGH SCHOOL, SIVAGANGA POLICE STATION LIMIT, SIVAGANGA DISTRICT, TAMIL NADU STATE.** **2 RAJKUMAR, AGED 19 YEARS, S/O RAJ, MADINA NAGAR, KAMMA BHAGOM, CHICKAL, RAMANADU DISTRICT, TAMIL NADU STATE.** **BY ADVS. P.MOHAMED SABAH SAIPOOJA** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **BY SMT.SEENA C., PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 31.01.2024, THE COURT ON 23.02.2024 DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.207 of 2021 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.Appeal No.207 of 2021** **----------------------------------------------------------Dated this the 23[rd] day of February, 2024** ## **JUDGMENT** The appellants stand convicted and sentenced for the offence punishable under Sections 450, 325, 394 and 397 read the Section 34 of the Indian Penal Code, 1860 (IPC). The Additional Sessions Judge-II (Special), Kottayam has convicted and sentenced the appellants as per the judgment dated 28.05.2020. That judgment is under challenge in this appeal filed under Section 374(2) of the Code. 2. The case of the prosecution was the following:- At about 12.45 a.m. on 06.06.2017 the appellants along with another person entered inside the kitchen of the residential building bearing door No.XIX/187 of Ayarkunnam Panchayat by breaking open its door. Their common intention was to commit robbery. Hearing the sound, PWs.1 and 2, who are the husband and wife and occupants of that house, woke up and switched on the lights. When reached the kitchen, 3 Crl.Appeal No.207 of 2021 PW1 was attacked by the 2[nd] accused using a chopper. Although an injury resulted at his head, PW1 could grab the chopper. A struggle ensued and the 1[st] appellant, and also the third person with them kicked PW1 at the left side of his chest. He sustained fracture of ribs. Realising that the neighbours were coming to the place, one among the assailants snatched off the gold chain worn by PW2 and they left the scene. 3. The trial court held that the evidence of PWs.1 and 2 was convincing and that evidence was sufficient to prove beyond doubt that it was the 2[nd] appellant, who attacked PW1 using the chopper and the 1[st] appellant, who hit and kicked PW1. The trial court further held that there was yet another person along with the appellants and it was he who snatched away the chain of PW2. The prosecution could not apprehend him. The trial court was of the opinion that the lapse of the part of the prosecution to arrest the third one among the robbers and effect recovery of the stolen article did not affect credibility of PWs.1 and 2. It was further held that sustaining 4 Crl.Appeal No.207 of 2021 of grievous hurt by PW1 and the snatching of the gold chain were proved by the prosecution with the help of cogent evidence and the appellants were guilty. The appellants assail all the said findings as wrong and illegal. 4. Heard the learned counsel for the appellants and the learned Public Prosecutor. 5. The incident was at about 12.45 a.m. on 06.06.2017. On hearing sounds of somebody demolishing the door of their house, PWs.1 and 2 woke up and switched on the lights. PW1 reached first in the kitchen. PW2 followed. Their consistent version is that on seeing PW1, the 2[nd] appellant attacked him using a chopper. A struggle ensued and in order to get rid of PW1, he was hit and kicked by other members of the group. PW1 was pulled out of the kitchen and while the struggle was going on, neighbours started thronging in. The version of PWs.1 and 2 is that the assailants immediately took on their heels, but before that the gold chain of PW2 was snatched off by one among the assailants. 5 Crl.Appeal No.207 of 2021 6. PW3 and other neighbours joined in taking PW1 to the hospital. PW3 and others were told on reaching the spot by PW2 that three persons attacked PW1 and snatched away her gold chain. 7. At the Medical College Hospital, Kottayam PW1 was attended by PW5. Ext.P3 is the certificate relating to the examination of PW1 and Ext.P18 is the medical records. From the evidence of PW5 and the said documents, it is proved that PW1 had fractures of left fifth and sixth ribs and an injury on his head. When PW1 was brought to the hospital with the complaints of assault and he had such grave injuries requiring immediate surgery, the same corroborated the oral testimony of PWs.1 and 2 regarding the cause of injury. The evidence tendered by PW3 further corroborates that fact. Thus, it is proved that three persons had committed trespass to the house of PWs.1 and 2 by breaking open its door and committed robbery by snatching away the gold chain weighing 1¼ sovereigns worn by PW2. In that course, the assailants had inflicted grievous hurt to PW1. 6 Crl.Appeal No.207 of 2021 8. The case of the prosecution is that it was the appellants along with an unidentified person committed the aforesaid offences. The appellants denied the said allegations. The learned counsel for the appellants would submit that right from the arrest of the appellants the process of investigation is shrouded by suspicion and in the absence of proper identification, particularly, a test identification parade, there is total lack of reliable evidence to implicate the appellants to the offences. Not only that the appellants but also the weapon of the offence, MO1 chopper, was not duly identified. Evidence concerning recovery of M.O.1 is also doubtful. Accordingly, the learned counsel for the appellants would submit that the impugned judgment is liable to be set aside. 9. The learned counsel for the appellants further would submit that Ext.P1 F.I.statement does not contain any description helpful to identify the assailants and for that reason itself identification of the appellants by PWs.1 and 2 before the court cannot be believed. Indisputably, the appellants were total strangers and therefore their identification by PWs.1 and 2 first 7 Crl.Appeal No.207 of 2021 time in court is not credible. In the above regard, the learned counsel for the appellants placed reliance on the **Amrik Singh v. State of Punjab [(2022) 9 SCC 402]** and **Anil Kumar v. State of Kerala [2023 KHC OnLine 721]** . 10. In **Amrik Singh** (supra) the Apex Court held that in a case where the conviction of the accused is based on the PW1/eye-witness identifying the accused in the Court and there was no test identification parade, non-disclosure of the identifying features in the FIR which was given by PW1/eyewitnesses is a matter of serious concern. The settled position of law is that an FIR need not be an encyclopedia. All the same, when no test identification parade was conducted the first version of the complainant reflected in the FIR would play an important role. It is required to be considered whether in the first version the eye-witness has disclosed the identity and/or description of the accused on the basis of which he can recollect at the time of deposition and identify the accused for the first time in the Court. The said view was followed and reiterated by this Court in **Anil Kumar** (supra). 8 Crl.Appeal No.207 of 2021 11. The appellants were strangers to PWs.1 and 2. But they had the opportunity to see them for a sufficient length of time and there was enough light. Going by the evidence of PWs.1 and 2, the 2[nd] appellant had a chopper with him and he attacked PW1 using it. PW1 sustained an injury at his head. That injury was not very serious. The assailants came inside the kitchen by breaking open the door. That was an alarming and horrendous situation as far as PWs.1 and 2 are concerned. But when they obtained enough time, and there occurred a scuffle between PW1 and the assailants, and throughout PW2 was also trying to save her husband, it is obvious that the faces of the assailants would have been indelibly imprinted in their mind. It was not a glance or flashing sight. In the nature of the incident that occurred, the assertion of both PWs.1 and 2 that they saw the assailants and could identify them before the court is quite convincing. 12. True, the identifying features were not specifically stated by PWs.1 and 2 before the police. If there was not enough time to see the assailants during the alleged incident, 9 Crl.Appeal No.207 of 2021 the failure to describe the features of the assailants would adversely affect the prosecution. But, in this case, the proposition of law laid down in the aforesaid decisions in this regard cannot have application. 13. In Ext.P1 it was stated that three young persons were the assailants. The learned counsel for the appellants submitted that the 1[st] appellant is aged 50 years; whereas the 2[nd] appellant is aged 19 years. From that, the version of PW1 that the assailants were young persons gets falsified. When PW1 was cross-examined, he clarified the said aspect. He explained that by saying so he meant no one among the assailants was an old person. The said explanation is sufficient when the identification by PWs.1 and 2 of the appellants before the court is convincing. 14. The Apex Court in **Balu Sudam Khalde v. State of Maharashtra [AIR 2023 SC 1736]** explained the parameters for appreciating the ocular evidence. Following observations are relevant in this case,- “25. The appreciation of ocular evidence is a hard task. 10 Crl.Appeal No.207 of 2021 There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under: IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. xx xx xx VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.” 11 Crl.Appeal No.207 of 2021 15. Applying the aforesaid parameters, the evidence of PWs.1 and 2 as regards identification of the appellants before the court is reliable. The inconsistency and the irregularities pointed out in regard to the arrest of the appellants cannot affect the evidence adduced by the prosecution, which is found reliable. The discrepancy in describing the weapon is also highlighted as a reason to disbelieve PWs.1 and 2. In Ext.P1 the weapon was described as 'vettarival', but MO1 is a chopper. PW1 explained that what he meant was a chopper. When MO1 was identified by PWs.1 and 2 in court and it was recovered from near the place of occurrence, there is no reason to doubt about the identification of MO1 as the weapon used by the 2[nd] accused to attack PW1. 16. The Apex Court in **State of Karnataka v. Yarappa Reddy [(1999) 8 SCC 715]** held that even if the investigation is illegal or even suspicious, the rest of evidence must be scrutinised independently of the impact of it. The Apex Court reminded that, otherwise, criminal trials will plummet to the level of the investigating officer ruling the 12 Crl.Appeal No.207 of 2021 roost. Hence, I shall consider whether the rest of the evidence is reliable. 17. As stated, evidence of PWs.1 and 2 is sufficient to prove beyond doubt that the appellants were two among the three persons criminally trespassed into their house, committed robbery and inflicted grievous hurt to PW1. I find no reason to interfere with the findings of the trial court. Their conviction is therefore not liable to be interfered with. 18. Following is the sentence imposed on the appellants: Both the convicted accused are sentenced to undergo rigorous Imprisonment for 5 (five) years and to pay a fine of Rs.50,000/- (Rupees fifty thousand only) each, and in default of payment of fine to undergo rigorous imprisonment for a further period of 6 (six) months for the offence under Section 450 of I.P.C. For the offence under Section 325 of I.P.C., both the convicted accused persons are sentenced to undergo rigorous imprisonment for a period of 5 (five) years and to pay a fine of Rs.50,000/(Rupees fifty thousand only) each and in default of payment of fine to undergo rigorous imprisonment for a further period of 13 Crl.Appeal No.207 of 2021 6 (six) months. For the offence under Section 394 of I.P.C., both the convicted accused persons are sentenced to undergo rigorous imprisonment for a period of 5 (five) years and to pay a fine of Rs.50,000/- (Rupees fifty thousand only) each and in default of payment of fine to undergo rigorous imprisonment for a further period of 6 (six) months each. For the offence under Section 397 of I.P.C., both the convicted accused persons are sentenced to undergo rigorous imprisonment for a period of 7 (seven) years.” Imprisonment of seven years is the minimum punishment prescribed for the offence under Section 397 of the IPC. Since the prescribed minimum period of sentence is awarded for the offence under Section 397 of IPC and lesser terms of sentence for the other offences to run concurrently, I find no reason to interfere with the order concerning substantive sentence imposed. The appellants have been in jail since the date of arrest. Taking that into account, the amount of fine imposed is reduced. Instead of Rs.50,000/-, the appellants shall pay a fine of Rs.5,000/- for each of the offences for which fine was imposed. Default sentence shall be the same. 14 Crl.Appeal No.207 of 2021 The appeal is allowed in part to the above extent. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr