SIMSON @ SIMMEN vs STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 19TH DAY OF OCTOBER 2020 / 27TH ASWINA, 1942** **CRL.A.No.1160 OF 2017** **AGAINST THE ORDER/JUDGMENT IN SC 69/2016 OF ADDITIONAL DISTRICT & SESSIONS COURT (FOR THE TRIAL OF CASES RELATING TO ATROCITIES & SEXUAL VIOLENCE AGAISNT WOMEN AND CHILDREN)** **AGAINST THE ORDER/JUDGMENT IN CP 30/2015 OF JMFC, KAKKANAD (TEMPORARY)** **CRIME NO.315/2012 OF Thrikkakara Police Station , Ernakulam** ## **APPELLANT/ACCUSED:** **SIMSON @ SIMMEN AGED 36,S/O.FRANCIS,KARATHANATTU HOUSE, MELTHARA LANE,PADIVATTOM KARA, EDAPPALLY SOUTH VILLAGE** **BY ADVS. SRI.K.R.VINOD SMT.M.S.LETHA** ## **RESPONDENT/STATE:** **STATE OF KERALA** **REPRESENTED BY S.I OF POLICE, THRIKKAKARA POLICE STATION REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031** **R1 BY SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN AND CHILDREN AND WELFARE OF W AND C** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28-09-2020, THE COURT ON 19-10-2020 DELIVERED THE FOLLOWING:** Crl.A.No.1160/2017 2 ## **JUDGMENT** ## **Dated : 19[th] October, 2020** ## M.R.Anitha, J. 1. This appeal has been filed against the conviction and sentence passed by the Additional Sessions Judge (for the trial of cases relating to Atrocities & Sexual Violence against Women and Children), Ernakulam, in S.C.69/2016. 2. Prosecution case is that, appellant/accused with the intention and preparation to commit robbery, trespassed into house No.111/444 of Thrikkakkara Municipality on 26.2.2016 at 1.30 am. Using Jacky and liver he bent the iron rods fixed on the window on the southern side of the work area near the kitchen. He threatened to do away with PW1 by putting a knife on her neck while she was lying on the bed in the bedroom and forcibly snatched the gold chain of 2.5 sovereigns worn by her and stole gold bangle of three sovereigns. Appellant/accused also attempted to commit rape on her by tearing her nightie. Thereby the accused committed the offences punishable under Secs 450, 394 and 511 of Sec.376 IPC. 3. PW1 to 10 were examined and Exts.P1 to P11 were marked on the side of prosecution. MO1 to 6 were identified and Crl.A.No.1160/2017 3 marked. DW1 examined on the side of defence. Thereafter on hearing both sides, court below found the appellant/accused guilty under Secs 450, 394 and 354 IPC and sentenced him to, undergo rigorous imprisonment for ten years and to pay a fine of Rs.10,000/- under Sec.450 IPC, in default to undergo rigorous imprisonment for another two months, rigorous imprisonment for life and to pay a fine of Rs.25,000/- under Sec.394 IPC in default to undergo rigorous imprisonment for four months, rigorous imprisonment for two years and to pay a fine of Rs.5000/under Sec.354 IPC in default to undergo rigorous imprisonment for one month. Assailing the conviction and sentence passed by the court below the appellant came up in appeal before this Court. 4. Notice was issued to the respondent and the learned Special public prosecutor appeared on behalf of respondent/State. Lower court records were called for and perused and both sides were heard. 5. According to the learned counsel for the appellant/accused (hereinafter be referred as accused), the court below totally went wrong in finding the accused guilty in the absence of any legal evidence to connect the accused with the crime. According to him, the incident happened during night and PW1 admittedly is a person having short sight from Crl.A.No.1160/2017 4 childhood onwards. The accused has been apprehended after two years and ten months of the incident. Hence the court below ought not have accepted the proof of identity of the accused by dock identification of PW1. No test identification parade was conducted to prove the identify of the accused. He would also contend that the gold ornaments alleged to have been sold by the accused to one Saneesh, who had been cited as a witness, but, was not examined from the side of the prosecution which is a serious lapse. Further he would contend that though prosecution would allege that hair of assailant was collected from the window and also from the bedroom no attempt was made by the prosecution even after the arrest of the accused to send it for expert opinion. So according to him, conviction and sentence passed is not sustainable either in law or on facts. 6. To prove the identify of the accused, prosecution mainly relies upon the evidence of PW1, the victim. PW1 deposed that the incident occurred on 26.2.2016 at about 1.30 am. She heard a noise, suddenly woke up and checked the room where husband was sleeping. He was found in sound sleep. She returned and lied on the cot, completely covering the head with blanket, fearing mosquito bite. Then somebody was found to be sitting on her body by putting his legs on either side of her belly. He caught her cheek and put a knife Crl.A.No.1160/2017 5 on her neck. She felt suffocation and held him, then sustained injury on the right middle finger. He threatened to do away with her, if she makes any alarm and snatched the gold chain of 2.5 sovereigns including thali and also took three sovereigns of bangle worn by her. Then he lit a pen torch and looked at her ears. At that time she noticed his face. He tried to insert the corner of the blanket into her mouth and she tightly closed her mouth and hence he failed in the attempt. Then he got down from her body and twisted her right hand twice and torn her nightie. He caught her belly and thereafter he masturbated and poured the semen on her body. He asked for the key and she told him that it is on the table. After that he left. 7. She informed the incident to PW2, the neighbour. On checking, the iron rods of the window in the work area were found to be bent. PW2 intimated the police and police and local people came there. On the next day morning, she went to the hospital and was admitted there. Police took her statement which is marked as Ext.P1. Due to the beating on her cheek and sitting on her body, she had pain on the right side of chest. Her hand was also put on sling for two months. She informed the police that the assailant could be identified on sight. 8. After the arrest of the accused she went to the police station Crl.A.No.1160/2017 6 and identified him. MO1 series, the Jackies which were abandoned by the thief after robbery, MO2 her nightie, MO3 her under skirt, MO4 bed sheet and MO5, the clothe used for covering the face of accused were identified by her. 9. PW2 is the neighbour who came to the house of PW1 immediately after the incident. PW2 stated that PW1 told him about the incident and that the thief stole her chain and bangles. He also found bending of the iron rod of window in the work area. MO5 clothe was identified by him. PW5 is the neighbour of the accused and is also a witness in Ext.P3, the carbon copy of scene mahazar. He is also a relative of PW1. He stated that he came to know about the incident happened in the house of PW1 and as requested he went there and signed as a witness in Ext.P3 scene mahazar. 10. PW10 was the Station House Officer, Thrikkakara during the relevant time who recorded Ext.P1 statement at Pazhanganad hospital where PW1 was undergoing treatment. Ext.P11 is the FIR registered by him. 11. PW9 was the doctor, Samaritan hospital, Pazhanganad. She deposed that on 26.2.2012 at about 8.35 am she examined Mrs.Ammu George, 70 years with the alleged history of house trespass during night to commit robbery. She was attacked and gold ornaments were robbed and Crl.A.No.1160/2017 7 there was attempt to commit rape also. She noted laceration on left middle finger tip and pain on right shoulder and the certificate issued by her is marked as Ext.P10. Suggestions were put during cross-examination that the injuries can be caused by fall also. 12. So the evidence of PW1 and PW2, the neighbour who has reached the house of PW1 immediately after the incident coupled with the evidence of PW9, the doctor, would leave no room for doubt about the happening of the incident at the house of PW1. 13. The main argument of the learned counsel for the accused was with regard to the identity of the accused. According to him, the arrest was almost after two years and eight months. PW1 is an old lady aged 70 years at the time of incident. At the time of examination she was 75 years old. She admitted during cross-examination that she had shortsight from 13 years onwards. Admittedly, she was not wearing any spectacles at the time of incident. 14. So according to the learned counsel, it is highly improbable that in such an event, she could identify the accused who is a stranger. PW6 the initial investigating officer admitted that the victim stated that she did not know the person who committed robbery in her house. Accused Crl.A.No.1160/2017 8 was arrested by PW8 on 1.12.2014. Prosecution case is that after arrest of the accused, accused was shown to the victim and got identified. But no test identification parade was conducted. Pw1 stated that accused was wearing a clothe like mask and only his eyes could be seen. Her evidence is that since accused lighted a torch on her ears, she could see his face since by that time, she pulled out clothe from the face. There will not be any doubt that she could have seen the accused for a few minutes. So the question is whether such an old lady could identify a person who committed the act after a time gap of two years and eight months? 15. In such circumstances omission to conduct the test identification parade assumes importance. The explanation of PW8 (who arrested the accused and completed the investigation) for not conducting the test identification parade is that the accused had been arrested in another case and the news in connection with the same had come out and hence identification parade was not conducted. 16. The learned Special Public Prosecutor took our attention to Raja v. State by Inspector of police (AIR 2020 SC 254 = 2019 KHC 7233) wherein the question of test identification parade (TIP) arose for consideration and offence was of dacoity and murder. The prosecution witnesses suffered injuries in the transaction. But the initial Crl.A.No.1160/2017 9 report showed that identity of the assailants was not known to the witnesses and no identification marks or attributes were stated but it was asserted that assistants were in the age group of 20 – 25 and one of the assailants worn a red colour shirt. In that context it was held that since each of the eyewitness had suffered number of injuries in the transaction it can safely be inferred that every one of them had sufficient opportunity to observe the accused to have an enduring impression of the identity of the assailants and the investigating agency conducted TIP without delay. Prosecution also has no case that accused persons were wearing masks. So considering the totality of circumstances it was held that presence and participation of the accused stood proved through the eye witnesses. So also on going further it was seen that recovery of wrist watch gold chain, gold articles blood stained clothes were effected from accused persons. In the said circumstances it was held that what is important is the identification in court and if such identification is otherwise found by the court to be truthful and reliable, such substantive evidence can be relied upon by the court. It is also seen that the incident in that case occurred on 28.5.1999 at 1.00 am accused No.1, 2, 3, 4, 5 and 7 were arrested on 21.06.1999 and accused No.6 surrendered on 22.6.1999. Crl.A.No.1160/2017 10 17. In this case the evidence of PW8 the investigating officer is that while accused was questioned in connection with crime 1187/2014 on 1.12.2014 he admitted commission of offence in this crime and accordingly he was arrested in this case. No doubt, such an alleged admission is inadmissible in evidence under Sec.25 of the Evidence Act. So fact situation of the decision cited above and the case on hand are entirely different. Hence the principles laid down therein cannot be applied in this case. 18. The other material piece of evidence for connecting the accused would have been the recovery of the material object. Court below found that it has been proved from the evidence of PW3 that accused has sold one chain and bangle weighing 5.5 sovereigns. But on going through the evidence of the investigating officer it could be seen that prosecution case is that accused sold the gold to PW3. During cross-examination PW8 would state that Saneesh along with accused got released a gold bangle which was pledged in a financial institution. Though PW8 during evidence stated that accused gave a disclosure statement that he would show the shop in which the gold ornaments were sold and the person who purchased the ornaments, PW8 did not take any effort to get recovery of the ornaments or the gold ingot from the person to whom accused sold the Crl.A.No.1160/2017 11 item. What has been done by him is that he informed PW3 Santhosh over phone and asked him to come to his office. When he questioned PW3, Santhosh, he revealed that he had melted the gold ornaments purchased from the accused and he would produce it. Further PW8 would depose that accordingly on 5.12.2014 PW3 produced the gold ingots at his office and the same is identified and marked as MO6. But PW3 when examined, gave a different version that one Saneesh used to sell gold to him and police came with them and Saneesh told him that the gold purchased by Saneesh was from accused. Saneesh though cited as a witness was not examined. It is true that PW3 was declared hostile by the prosecution. So the seizure of MO6 by PW8, on production of the same by PW3 at his office, will not in any way connect the accused with MO6. In other words, seizure of MO6 by describing in Ext.P5 mahazar will not have the impact of recovery under Sec.27 of the Indian Evidence Act. 19. The learned Additional Sessions Judge also quoted Madhu v. State of Kerala [AIR 2012 SC 664]. But on going through the said decision it could be seen that that was a case charged under Sec.302, 392 r/w 34 IPC and there was clear recovery of gold ornaments belonging to the deceased as per the disclosure statement given by the accused. A detailed narration of facts in that regard has been given in Crl.A.No.1160/2017 12 para 6 of the decision, so the fact situation of that case has no application to the case in hand. Here PW8 the investigating officer has no case that he has recovered the gold ingot as per the disclosure statement given by the accused from PW3. On the other hand what has been done by him is based on the disclosure statement given by the accused he called PW3 and directed him to produce a gold ingot of 5.5 sovereigns. So the seizure so effected by PW8 through PW3 will not come within the purview of S.27 of the Evidence Act. 20. The Additional Sessions Judge has quoted State of U.P. = v. Babu Ram (AIR 2000 SCV 1735 AIR 2000 SC 1735) and stated that a proposition has been laid down by the Apex Court that 'subject matter of discovery can be even a person'. But on going through the judgment we could not find any such proposition of law laid down in the matter of recovery under Sec.27 of the Evidence Act. On going through the said decision what could be gathered is that the Apex court has discussed in para No.17 about the sidestep made by the High court in the incriminating circumstance based on Sec.27 of the Act. It is stated that on the strength of the statement made by the respondent (accused) two spades and a blood stained “sadari” were recovered by the investigating officer. But the high court criticized the Crl.A.No.1160/2017 13 investigating officer for the delay in questioning the accused after coming to know that accused made an extra judicial confession. It is also found that on the basis of statement of investigating officer that accused was interrogated after midnight, 25/26.11.90 and recovered the articles. In the said circumstance high court was of the view that the conduct of the investigating officer created doubt regarding the genuineness of extra judicial confession as well as the statement leading to the recovery of the articles. In the said circumstance the Apex Court held that the reasoning for dispelling the evidence which was otherwise a circumstance positively inculpating the respondent was not appreciable. It is also found that investigating officer may have his own reasons for not interrogating the accused as soon as he saw the accused. It is also stated that court cannot overlook the realities that investigating officer who is otherwise a police officer has to attend umpteen engagements and even in the investigation in that case itself he may have to observe a number of formalities, even if it is assumed that he had only one case to investigate. So no where in the whole judgment a proposition of law laid down by the Apex Court that subject matter of discovery can be even a person could be find out. 21. In this context we find it relevant to quote paragraph 10 of judgment in K. Chinnaswamy Reddy v. State of Andhra Crl.A.No.1160/2017 14 ## Pradesh & Anr. [AIR 1962 SC 1788 = 1962 KHC 635]. Para ## 10. - “....... . It is only that part which distinctly creates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will exercise one part of the statement because it is of a confessional nature. Sec.27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. …...............” . 22. So it is clear from the above proposition that for attracting Sec.27 of the Evidence Act, there should be a discovery of fact in pursuance of the statement given by the accused. So when a material object is produced by a person to whom accused alleged to have sold it, produces the same (in this case PW3 stated that Saneesh purchased the gold ornament from the accused and sold to him) before the police officer to whom the disclosure statement alleged to have been made by the accused, it will not in any way come within the purview of recovery under Sec.27 of the Evidence Act. 23. The learned counsel for the accused would also contend about the delay in registering the FIR. PW1 and 2 Crl.A.No.1160/2017 15 depose in corroboration that immediately after the incident they informed the matter to the police and police had come to the house of PW1. PW1 would depose that police was present at her house throughout, till morning. PW2 also deposed that police came immediately, on intimation. But PW10, the SHO of Thrikkakara police station would depose that on getting intimation from the hospital, he reached the hospital and recorded the statement of PW1 and that is marked as Ext.P1 and P11 is the FIR registered by him. Exts.P1 and P11 would show that the FIR was registered at 10.30 hours and it was recorded at 9.30 am at the hospital. The evidence of PW1 in this context is relevant. She would state that she described all the incident to the police when they came to her house. But it was not written down by the police. So the evidence of PW10 that they received the intimation at 8.48 am and it was a telephone message, is not seems to be correct. It leads to an inference that before the registration of FIR the police had knowledge regarding the incident and had gone to the spot also. But that fact was suppressed and Ext.P1 was registered under the guise that they got information only from the hospital at 8.48 am. 24. Another important fact highlighted by the learned counsel is that admittedly by the prosecution hair was collected from the bed sheet and also the window through Crl.A.No.1160/2017 16 which thief alleged to have trespassed into the house. Even after the arrest of the accused, no attempt was made by the prosecution to take his hair sample and send the same for comparison to prove that the hair which was found in the scene of occurrence was that of the accused himself. When PW8, the investigating officer, was questioned, he would admit that hair collected from the scene of occurrence was not got examined with the hair samples of the accused. He would also admit that no materials were collected from the scene of occurrence connecting the accused with the offence. Since hair was collected from the scene of occurrence by PW6, when PW8 arrested the accused after two years, comparison of the hair sample of the accused with the hairs collected from the scene of occurrence would have been the best evidence to link the accused with the crime. But for the reasons best known to PW8 he did not make any attempt in that regard and he has no explanation to offer for omitting to do the same also. 25. In the matter of seizing the gold ingot also, we have described already, the investigating officer has deviated from the usual procedure and got the gold ornaments produced by the jeweler at his office without taking any effort for getting it recovered at the instance of the accused. So a fair investigation which is a fundamental right of the accused Crl.A.No.1160/2017 17 ## seems to have been denied to him. 26. The learned Special Public Prosecutor also would argue about the evidence of DW1, alleged to be the wife of the accused. As per the evidence of DW1, defence attempted to establish that five and odd sovereigns of gold ornaments belonged to her were pledged and subsequently sold by the accused. The learned public prosecutor would contend that though she claims to be the wife of the accused, she could not even remember the Church in which their marriage was conducted and the gold ornaments claim to have pledged and sold by the accused as per her evidence is of the same weight of the gold ornaments which had been robbed from PW1. Anyway the evidence of Dw1 that her ornaments were pledged or sold by the accused can not be relied upon by the court to infer that it is the gold ornaments of Pw1 alleged to be stolen by him. 27. So on a close evaluation of the facts and circumstances, we are of the considered view that the Additional Sessions Judge found the accused/appellant guilty without appreciating the facts and law in a correct perspective and hence is liable to be interfered with. 28. In the result, appeal allowed, conviction and sentence passed against the accused/appellant is set aside and he is Crl.A.No.1160/2017 18 set at liberty. He shall be released forthwith if his confinement is not required in any other case. MO6 gold ingot shall be confiscated. Sd/- 1. **A. HARIPRASAD JUDGE** Sd/- **M.R.ANITHA JUDGE** Mrcs/8.10.