State of Kerala v. Santosh @ Motta Santosh; Mulla @ Muthu; Baiju

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **MONDAY, THE 5[TH] DAY OF AUGUST 2024 / 14TH SRAVANA, 1946** **CRL.A NO. 1004 OF 2006** **AGAINST THE JUDGMENT DATED 17.05.2006 IN SC NO.1330 OF 2002 OF SESSIONS COURT, KOLLAM** ## **APPELLANT/ACCUSED 3 AND 6:** **1 SANTHOSH @ MOTTA SANTHOSH, S/O.SREEDHARAN, VELUMPARAMBIL VEEDU, NATTAKAM VILLAGE, KOTTAYAM DISTRICT.** **2 MULLA @ MUTHU, D/O.KUNJU MUHAMMED, RENTED HOUSE FOR MADHU, MANAKKADU VILLAGE, THIRUVANANTHAPURAM.** ## **RESPONDENT/COMPLAINANT** **STATE OF KERALA REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, KOTTARAKKARA, THROUGH THE PROSECUTOR, HIGH COURT OF KERALA.** ## **BY ADV SR.PUBLIC PROSECUTOR – SRI.VIPIN NARAYAN** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 30.07.2024, ALONG WITH CRL.A.1007/2006, THE COURT ON 05.08.2024 DELIVERED THE FOLLOWING:** 2 Crl.Appeal Nos.1004 and 1007 of 2006 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA MONDAY, THE 5[TH] DAY OF AUGUST 2024 / 14TH SRAVANA, 1946 CRL.A NO. 1007 OF 2006** **AGAINST THE JUDGMENT DATED 17.05.2006 IN SC NO.1330 OF 2002 OF SESSIONS COURT, KOLLAM.** **APPELLANT/2ND ACCUSED:** **BAIJU, S/O. THANKAPPAN, AGED 24 YEARS SIBI COTTAGE, PANAYAMCODE, KUNDARA, KOLLAM DISTRICT.** **BY ADVS. M.T.SURESHKUMAR SHRI.R.RANJITH,SC,KOOVAPPADY GRAMA PANCH SMITHA PHILIPOSE SREELAKSHMI SABU MANJUSHA K** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY SUB INSPECTOR OF POLICE, KADAKKAL POLICE, STATION (CRIME NO.270/2001 OF KADAKKAL, POLICE STATION) REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV SR.PUBLIC PROSECUTOR -SRI.VIPIN NARAYAN** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 30.07.2024, ALONG WITH CRL.A.1004/2006, THE COURT ON 05.08.2024 DELIVERED THE FOLLOWING:** 3 Crl.Appeal Nos.1004 and 1007 of 2006 **C.S.SUDHA, J. --------------------------------------------Crl.Appeal Nos.1004 and 1007 of 2006 --------------------------------------------Dated this the 5th day of August 2024** ## **J U D G M E N T** The aforesaid appeals have been filed by accused 2, 3 and 6 aggrieved by the judgment dated 17/05/2006 in S.C.No.1330/2002 on the file of the Court of Session, Kollam by which they have been convicted and sentenced for the offence punishable under Section 395 IPC. 2. The prosecution case is that on 29/03/2001 at 09:00 p.m., the accused six in number, with an intention to commit dacoity, hired taxi car bearing registration no. KL-2H-3969 owned by PW2 and driven by PW1 from the taxi stand near the KSRTC bus stand Kottarakkara. After travelling for some distance, PW1 was physically and forcibly removed from the driver's seat to the space in between the front seat and the back 4 Crl.Appeal Nos.1004 and 1007 of 2006 seat. The 2[nd] accused took over the control of the car. The accused persons after bandaging the hands and legs of PW1, forced him to drink some liquid, due to which he lost consciousness. The accused thereafter abandoned him on the veranda of a tyre workshop bearing no.P.P.No.VII/52 owned by one Gopi Punnappra, Alappuzha. The car was thereafter sold by accused nos.1 and 2 to PW14 through PW12 and pocketed an amount of ₹55,000/- towards the sale consideration. Hence, the accused are alleged to have committed the offence punishable under the above mentioned Section. 3. Crime no.270/2001 of Kadakkal police station was registered on the basis of Ext.P1 FIS given by PW1 at 06:00 p.m. on 30/03/2001 while he was at the Taluk Hospital, Kottarakkara where he was undergoing treatment. Ext.P1(b) FIR was registered by PW10 based on the FIS of PW1. PWs 16, 15 and 19 had conducted investigation at various stages. On completion of the investigation, final report was laid before the jurisdictional magistrate. It was reported that the first accused died on 5 Crl.Appeal Nos.1004 and 1007 of 2006 02/01/2002. On appearance of accused 2 to 6 before the jurisdictional magistrate, they were furnished with the copies of all the relevant prosecution records. After complying with all the necessary formalities, the case was committed to the Court of Session, Kollam vide order dated 30/07/2002 in C.P.No.221/2022. The case was taken on file as S.C.No.1330/2002 and thereafter made over to the Additional Sessions Court, Adhoc – II, Kollam for trial and disposal. On 30/12/2003, a charge was framed under Section 395 IPC, which was read over and explained to accused 2 to 6 to which they pleaded not guilty. 4. The prosecution examined PWs.1 to 19 and Exts.P1 to P25 series and M.O.1 to M.O.3. Exts.D1 to D4 are the contradictions brought out by the defence in the testimony of PWs. 1, 2, 4 and 9. After the close of the prosecution evidence, the accused persons were questioned under Section 313(1)(b) Cr.P.C regarding the incriminating circumstances appearing against them in the evidence of the prosecution. The accused 6 Crl.Appeal Nos.1004 and 1007 of 2006 denied all those circumstances and maintained their innocence. 5. As the sessions court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., they were asked to enter on their defence and adduce evidence in support thereof. No oral or documentary evidence was adduced by the accused. 6. The trial court on an appreciation of the oral and documentary evidence and after hearing both sides, found accused 2, 3 and 6 guilty of the offence punishable under Section 395 IPC and hence proceeded to sentence them to rigorous imprisonment for 5 years and to a fine of ₹25,000/- each and in default of payment of fine, to simple imprisonment for 2 years. The fine amount, if realised, was directed to be paid to PW1 as compensation under 357(1)(b) Cr.P.C. Accused no.4 and 5 have been acquitted. Aggrieved, A2, A3 and A6 have come up in appeal. 7. The only point that arises for consideration in these appeals is whether there is any infirmity in the findings in the 7 Crl.Appeal Nos.1004 and 1007 of 2006 impugned judgment calling for an interference by this Court. 8. Heard the learned counsel for the 2[nd] accused/appellant in Crl.Appeal No.1007/2006. There was no representation for accused no.3 and 6, the appellants in Crl.Appeal No.1004/2006. Hence, relying on the dictum in **Bani Singh v. State of U.P., (1996) 4 SCC 720** , this Court proceeds to consider the appeal on merits after perusing the records of the case. Heard the learned Senior Public Prosecutor also. 9. Before I go into the evidence and the merits of the case, it is highly necessary to mention and refer to quite a strange procedure seen adopted by the trial court. Initially, PW1 to PW3 were examined on 06/02/2004. PW1 was cross examined by the counsel for the second accused also. However, when PW2 was cross examined, the trial court is seen to have recorded that the counsel for the second accused was absent. The chief examination of PW3 was recorded and the cross examination was adjourned. On 09/09/2004, the second accused filed an 8 Crl.Appeal Nos.1004 and 1007 of 2006 application seeking ' _de novo_ ' examination of PWs.1 to 3. In the application, the second accused alleged that when PW1 was cross examined, his lawyer had already relinquished his vakalath and hence the reason why PWs.1 to 3 were not cross examined. Therefore, he prayed for a ' _de novo'_ examination of the said witnesses. This application is seen accompanied by a note of the lawyer concerned recording thus - “ _I hereby relinquish my engagement of accused no.2 (named Baiju) in S.C.No.1330 of 2002 pending before the Additional District and Sessions Court (Adhoc-I), Kollam_ ”. On going through the proceedings sheet, I find order dated 18/09/2004 which reads thus - “ _A2 present. A3 to 6 produced. Heard. Prayer for fresh trial allowed. For scheduling the case to the month of November. Remand of A3 to 6 extended till 01/10/2004_ .” Thereafter, PW1 to PW3 were summoned and they were examined afresh on 21/03/2005. 9.1. If the second accused had not obtained an opportunity to cross examine the witnesses, they ought to have been recalled and examined. Once evidence is recorded, the same cannot be 9 Crl.Appeal Nos.1004 and 1007 of 2006 wiped off the records. I fail to understand the provision of law as per which the trial court permitted a _de novo_ trial. Section 386 Cr.P.C. deals with the powers of the appellate court. Clause (a) and clause (b)(i) deals with situations when a retrial can be ordered. However, those powers are that of an appellate court and not of a trial court. Moreover, it is well settled that a _de novo_ trial or a retrial of the accused should be ordered by the appellate court in exceptional and rare cases and only when in the opinion of the appellate court such course becomes indispensable to avert failure of justice. The power of the appellate court to direct a retrial has been considered by a Constitution Bench of the Apex court in **Ukha Kolhe v. State of Maharashtra, AIR 1963 SC 1531** . It has been held that a retrial shall not be ordered unless the appellate court is satisfied that - (i) the court which tried the case had no jurisdiction ; (ii) the trial was vitiated by serious illegalities and irregularities or on account of a misconception of the nature of the proceedings, as a result of which no real trial was conducted ; or (iii) that the prosecutor or 10 Crl.Appeal Nos.1004 and 1007 of 2006 an accused was for reasons beyond their control was prevented from leading or tendering evidence material to the charge and that in the interest of justice, the appellate court considers it appropriate to order a retrial (See also **State of M.P. v. Bhooraji, AIR 2001 SC 3372** ; **Mohd. Hussain alias Julfikar Ali v. State (Government of NCT of Delhi), (2012) 9 SCC 408** ; **Ajay Kumar Ghoshal v. State of Bihar, (2017)12 SCC 699** ; **P.Ramesh v. State, (2019) 20 SCC 593** ). Therefore it is only in exceptional and rare cases and only when in the opinion of the appellate court such course becomes indispensable to avert failure of justice, a retrial should be ordered. It is clear that the trial court could not have exercised the power of ordering _de novo_ trial as allowed by it as per order dated 18/09/2004. As the testimony of PWs. 1 to 3 examined on the first occasion also remain on record, this Court looked into the testimony of PW1 to PW3 given on both the occasions. 10. It was argued by the learned counsel for the second accused that the trial court erred in finding the second accused 11 Crl.Appeal Nos.1004 and 1007 of 2006 guilty of the offence alleged against him. The evidence on record is highly unsatisfactory and hence the finding of guilt is liable to be reversed. 11. In the present appeals, the question to be considered is whether the findings of the trial court against the second, third and sixth accused is sustainable. PW1, the driver of the car testified in support of the prosecution case. PW3 another taxi driver of the same stand supported the version of PW1 that the accused persons had hired the latter's taxi on the relevant day. In Ext.P1 FIS of PW1, there is no reference to the presence of PW3. 11.1. PW1 does not have any prior acquaintance with the accused persons. In Ext.P1 FIS, he has only stated that he can identify them on sight. No Test Identification Parade (TIP) was conducted by the police. It is true that it is not mandatory that in all cases, TIP is to be conducted. But it would always be better and ideal if a TIP is conducted where the aggrieved/injured/informant or the witnesses have no prior 12 Crl.Appeal Nos.1004 and 1007 of 2006 acquaintance with the accused persons. Even if the identification of the accused was done before the court for the first time, that alone is also not a ground to discard the prosecution case. But in such cases, it is necessary for the court to be cautious and to see whether the evidence on record is satisfactory relating to the identification of the accused persons and the other materials on record to arrive at a finding that the accused are guilty of the offence alleged against them beyond reasonable doubt. Therefore, I will assume for a moment that PW1 and PW3 had satisfactorily identified the accused persons in the court and consider whether the remaining evidence on record is satisfactory to find them guilty of the offence alleged against them. 12. As per the prosecution case, PW18, the then Dy.S.P., Crime Branch, during the course of his investigation in CID Crime No.103/2001, received information regarding the present crime. The first accused in the said case is the first accused in the present case also. On 06/07/2001 while questioning the first accused at the Central Jail, Thiruvananthapuram, the former 13 Crl.Appeal Nos.1004 and 1007 of 2006 confessed to him that he had stolen car bearing registration no.KL-2H-3969, the car involved in this case, and had sold the same to PW14 through PW12 for an amount of ₹1,85,000/-. ₹55,000/- was given by PW14 and an amount of ₹5,000/- was given to PW12. The car was produced before him by PW14 on 02/10/2001 at 04:00 p.m. on which day he seized the car as per Ext. P23 seizure mahazar. Thereafter, he handed over the car to PW17, the then Circle Inspector (C.I.), Kottarakkara. The disclosure statement of the first accused who died even before the final report was filed has not been produced before the court. It is true that the disclosure statement can be an oral one also. But here from the testimony of PW18 it appears that the statement had been recorded. However, the same has not been produced before the court. The car that was produced by PW14 before PW18 was not on the basis of the disclosure statement made by the first accused and not a recovery as contemplated under Section 27 of the Evidence Act. This is one piece of unsatisfactory evidence relied on by the trial court in favour of 14 Crl.Appeal Nos.1004 and 1007 of 2006 the prosecution. 13. Now coming to M.O.1 tyre which is supposed to have been inside the stolen car. According to PW15, the then C.I., Mallappally, he was investigating into crime no.100/2001 of Keezhvaipur police station, in which case the first accused Babu was arrested and thereafter remanded by the court. He obtained custody of the accused from the court and on interrogating him, the latter, the first accused in this case also, gave Ext.P4(a) disclosure statement on the basis of which M.O.1 tyre was seized, at which time Ext.P4 seizure mahazar was prepared. PW7 is stated to be an attestor in Ext.P4 mahazar. However, PW7 has a different story to narrate. PW7 admitted his signature in Ext.P4 seizure mahazar. He denied having any acquaintance with the first and the second accused in this case. He admitted that he is a watcher of St.Mary's Hospital, Mannarkkad and that he has night duty also. One day in the morning he saw a tyre of a car lying in front of the hospital. He took the tyre and kept it inside the hospital. He informed the matter to the CMO. Even after two to 15 Crl.Appeal Nos.1004 and 1007 of 2006 three days, nobody came claiming the tyre and hence he informed the police. On a day when he was on leave, he was directed by the hospital authorities to be present in the hospital. When he reached the hospital, the police were present, who questioned him relating to the tyre. As directed by the police, he signed in Ext.P4 mahazar. He did not see the second accused on the said day. According to PW7 he had not handed over the tyre to the police. He pleaded ignorance when he was asked whether the first accused on 30/03/2001 had been admitted in B7 room of the hospital. He also pleaded ignorance when he was asked whether the second accused had come driving a car, in which the first accused was also present. He denied the prosecution case that on the 30/03/2001 at about 02:30 a.m., the second accused claiming that the car required some repairs, had handed over the stepney tyre to him for safe custody. He denied having handed over the tyre to the police in the presence of the second accused. He admitted that PW11 was present who had also attested the mahazar. PW7 further deposed that he had kept the tyre under a 16 Crl.Appeal Nos.1004 and 1007 of 2006 stair case inside the hospital building. He does not know who had handed over the tyre to the police. On the said day when he reached the hospital, the tyre had already been handed over to the police. PW7 further deposed that he cannot say for sure whether M.O.1 tyre was the tyre that had been taken by the police on the said day. He had taken the tyre from the road and placed it in the veranda in front of the office of the CMO. After two days, the tyre was kept underneath a stair case inside the building of the hospital. He does not know who had kept the tyre beneath the stair case. He further testified that the CMO had told him that if the police made any enquiries, he must tell them that the tyre had been kept underneath the stair case. PW7 also went on to testify that when he was on night duty he had informed the police on beat duty about the tyre. He denied the suggestion put by the Public Prosecutor that the second accused had handed over the tyre to him and that later on in the presence of the second accused, he had handed over the tyre to PW15. The version of PW7 is against the prosecution case. 17 Crl.Appeal Nos.1004 and 1007 of 2006 14. Now coming to M.O.2 jack of the car and M.O.3 lever. According to PW19, the then Sub Inspector (S.I.), Keezhvaipur, on 30/04/2001 the first accused in crime no.100/2001 of Keezhvaipur police station gave a disclosure statement on the basis of which M.O.2 and M.O.3 were recovered from the house of one Hariharan, the brother-in-law of the first accused herein. Ext.P5(a) is stated to be the disclosure statement of the first accused and Ext.P5, the seizure mahazar as per which M.O.2 and M.O.3 were seized based on Ext.P5(a) disclosure statement. PW19 further deposed that he had produced M.O.2 and M.O.3 before the Judicial First Class Magistrate Court, Thiruvalla, as per Ext.P5(b) property list. He also deposed that it was as per the direction of PW15 he had questioned the first accused and effected the recovery. 15. PW8 admits that he is an attestor to Ext.P5 mahazar. He supports that prosecution case that M.O.2 and M.O.3 were recovered from the house of one Hariharan, his neighbour. PW8 also deposed that on the said day the first accused was present 18 Crl.Appeal Nos.1004 and 1007 of 2006 along with the police and that the latter was sitting inside the police jeep when recovery was effected. The testimony of PW8 proves the involvement of the first accused. The first accused died even before the final report was filed. 16. The aforesaid evidence is not quite satisfactory to connect A2, A3 and A6 with the crime. This coupled with the absence of a TIP to identify the accused persons also raises doubt as to whether identification was proper. Further, there is inordinate delay in producing the material objects before the court. The learned counsel for the second accused pointed out that though M.O.1 tyre is alleged to have been recovered on 30/04/2001, the same was produced as per Ext.P14 property list before the court only on 01/06/2001 for which PW13, the then Investigating Officer gives no explanation. 17. It was also further pointed out relying on the dictums in **Ram Lakhan v. State of U.P., (1983) 2 SCC 65 : 1983 KHC 565** and **Nisar v. State of Kerala, 2020 (3) KHC 363** that for an 19 Crl.Appeal Nos.1004 and 1007 of 2006 offence under Section 395 IPC, the involvement of five persons has to be established. When two accused have already been acquitted, the remaining three cannot be convicted for the offence. From the evidence on record, it appears that some incident did happen as spoken to by PW1. However the evidence on record is not satisfactory to arrive at a conclusion that the guilt of the accused stands established beyond reasonable doubt. Therefore, I find that they are entitled to the benefit of doubt. In the result, the appeals are allowed and the conviction and sentence imposed against the appellants/accused by the trial court for the offence punishable under Section 395 IPC is set aside. The accused are acquitted under Section 235(1) Cr.P.C. They are set at liberty and their bail bonds shall stand cancelled. Interlocutory applications, if any pending, shall stand closed. **Sd/-** **C.S.SUDHA JUDGE** Jms