ULLAS v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 06TH DAY OF JULY 2020 / 15TH ASHADHA, 1942** ## **CRL.A.No.1029 OF 2004** **AGAINST THE JUDGMENT IN SC NO.39/2004 DATED 01-06-2004 OF THE ADDITIONAL SESSIONS COURT (ADHOC)-1, KOTTAYAM** ## **APPELLANT:** **ULLAS, S/O. THAMPI, ANCHALASSERIL VEEDU, KARIKKOD KARA, MULAKKULAM VILLAGE.** ## **BY ADV. SRI.ULLAS** ## **RESPONDENT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY SR.PP. SRI.B.JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-07-2020 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.APPEAL NO.1029 OF 2004 2 ## **JUDGMENT** **Dated this the 6th day of July, 2020** **...** **The above appeal is filed by the accused in Sessions Case 39 of 2004 on the file of the Additional Sessions Judge,(Adhoc)-1, Kottayam.** **2. The Circle Inspector of Police, Kaduthuruthy charge sheeted the appellant and three others alleging offence punishable under Section 395 of the Indian Penal Code (IPC).** **3. After filing this appeal, the Counsel who filed the appeal relinquished his vakalath. Therefore, this court issued notice to the appellant on 23.3.2018. The notice was returned with an endorsement that "Addressee left the station and the present station not known". Therefore, this court again issued notice on 20.11.2019 and the order of this court is extracted hereunder:** _**“Notice to the appellant returned 'unserved'. The Registry will issue notice to the appellant through concerned SHO, Velloor Police Station for his appearance. The SHO shall be directed to file a detailed report about the whereabouts of the**_ CRL.APPEAL NO.1029 OF 2004 3 ## _**appellant if he is could not be served.”**_ **The notice as per the above order is returned with an endorsement that, the appellant is convicted in another case, and he is in Central Jail, Poojapura. Hence, this court again issued notice on 6.2.2020 to issue notice to the brother of the appellant, who is residing in the address for giving information to the appellant about the case. The order passed by this court on 6.2.2020 is extracted hereunder:** _**“Notice was issued to the appellant personally for the reason that the counsel who was laid vakkalath for him has relinquished the same. Notice was issued through Sub Inspector of Police, Velloor Police Station and reprot furnished by the officer concerned shows that the addressee is not available in the address furnished. It is also reported that the brother of the appellant is residing in the address furnished by the officer concerned. The Registry shall issue notice to the brother of the appellant in the address furnished by the S.I. of Police, Velloor Police Station, through him for information to the appellant and for his appearance if interested in the prosecution.**_ CRL.APPEAL NO.1029 OF 2004 4 **The brother of the appellant signed the notice issued from this court. But there is no representation even today. There is no purpose in adjourning this appeal again because there is no representation to the appellant even now. The Apex Court in K.S.Panduranga v. State of Karnataka [(2013) 3 SCC 721] formulated certain procedures regarding the disposal of criminal appeals when there is no representation from the side of the appellant. The relevant portions of the said judgment are extracted hereunder:** _**19. From the aforesaid decision in Bani Singh, the principles that can be culled out are:**_ _**19.1. That the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits;**_ _**19.2. That the court is not bound to adjourn the matter if both the appellant or his counsel/lawyer are absent;**_ _**19.3. That the court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so;**_ _**19.4. That it can dispose of the appeal after perusing the record and judgment of the trial court;**_ CRL.APPEAL NO.1029 OF 2004 5 _**19.5. That if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the appellant-accused if his lawyer is not present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so; and**_ _**19.6. That if the case is decided on merits in the absence of the appellant, the higher court can remedy the situation**_ **.** **4. In this case, there is no representation for the appellant even after the issuance of notice to the appellant and his brother. Criminal Appeals cannot be dismissed for default. The appellate court can dispose of the appeal after perusing the records and judgment of the trial court. This court came to know that, the appellant is in jail in connection with another case. Thereafter, this court issued notice to the brother of the appellant. The brother of the appellant accepted the notice. Even then, there is no representation. Hence, this court decided to consider this appeal on merit especially because, this appeal is pending** CRL.APPEAL NO.1029 OF 2004 6 ## **before this court for the last 16 years.** **5. Heard the learned Public Prosecutor.** **6. The prosecution case is that, CW-1 Kuriakose is the younger brother of CW-2 Varkey. On 04.01.1996 at about 9 p.m. CW-1 and CW-2 were walking through the H.N.L.Convent Road at Kulathakkuzhi bhagom, Velloor Kara and when they reached the said road at a point 15 metres and 5 cms north west to the north western corner of the parapet of a culvert in that road, the accused with the intention of committing dacoity came there in an autorickshaw bearing No.KL-5B/7600 and stopped it near CWs.1 and 2. Then the accused have alighted from the autorickshaw, and A1 with a sword stick attacked CW-1. Consequently, he had sustained an injury on his left forearm and fell down. Meanwhile, the accused who is the appellant herein had snatched a bag which contained currency notes worth Rs.15,000/-, coins for Rs.70, a bunch of keys and a diary from the hand of CW1. While this was going on, the accused also pummelled on the back of CW-2 and thereby caused bodily pain. After the occurrence, the** CRL.APPEAL NO.1029 OF 2004 7 **accused left the place along with the said bag, which contained currency notes and coins. In this connection, CW-8, Assistant Sub Inspector of Police, Velloor registered Crime No.2/1996 on the basis of information furnished by CW-1 and the case was registered under Section 395 IPC. CW-9, Circle Inspector of Police, Kaduthuruthy had conducted the preliminary investigation. Later, the investigation was taken over by CW-10, who is the successor in office of CW-9. CW-10 filed final report against the accused.** **7. The 4[th] accused is no more and his case was abated from the lower court itself. A1, A2, A3 and A5 were absconding and steps under Sections 82,83 of the Code of Criminal Procedure (Cr.PC) were initiated against them. The case was entered in the L.P. Register as L.P.60/2002. While so, on 20.12.2003 the first accused, who is the appellant herein, was arrested and produced before the court. His case was re-filed as C.P.No.21 of 2003. This case was committed to the Sessions Court and the case was numbered as** CRL.APPEAL NO.1029 OF 2004 8 **S.C. No.39 of 2004. Only the first accused, who is the appellant herein faced trial in this case.** **8. To substantiate the case, the prosecution examined PW1 to PW7. Exhibits P1 to P8 are the documents marked on the side of the prosecution. One witness was examined on the side of the defence as DW1. MO1 is the material object.** **9. After going through the evidence and documents, the trial court found that the accused committed the offence under section 395 IPC. The accused is sentenced to undergo Rigorous imprisonment for a period of three years. Aggrieved by the conviction and sentence, this Crl.Appeal is filed.** **10. Altogether, seven witnesses were examined in this case. PW1 is the doctor, who examined PW3, the victim. PW2 is the Village Officer through whom Ext.P2 scene plan was marked. PW3 and PW4 are the victims in this case. PW5 is examined as an attester to Ext.P4 seizure mahazar. PW6 is the Investigating Officer. PW7 is the Circle Inspector of Police who submitted the final report.** CRL.APPEAL NO.1029 OF 2004 9 **11. PW3, Kuriakose deposed that, he is conducting a stationery, beedi and cigarette wholesale shop in the township of Velloor News Print Factory. According to him on 4.1.1996 at about 9 p.m. himself along with PW4, Varkey his brother was walking through the convent road towards their house after closing the shop. At that time, he was carrying a bag which contained currency notes of Rs.15,070, five cheque leaves and a small diary. When they reached at a place called Kulathakkuzhi bhagom, an autorikshaw which came from their opposite direction was stopped near them. Four persons alighted from the autorikshaw and surrounded them. It is the case of the PW3 that, accused Ullas was one among them. According to the witness, accused Ullas with a sword stick struck a blow towards PW3 and the sword hit against his left forearm and he fell down. Meanwhile, the accused Ullas snatched the bag which contained the currency and the other items from him and boarded the autorikshaw. PW3 identified MO1 as the bag which was snatched by the accused Ullas from his possession. PW3 also stated** CRL.APPEAL NO.1029 OF 2004 10 **that, when the four accused surrounded him, PW4 intervened and at that time one of the accused pummelled on his back. According to this witness accused Ullas had snatched MO1 from his possession and also inflicted injuries to him with the sword stick at the time of occurrence. He submitted Ext.P3 First Information Statement to the Velloor Police. He also deposed that, he identified the accused in the light of the street lamp, which was fixed at an electric post on the western side of the culvert where the alleged incident happened. He also stated that at the time of occurrence, the driver of the autorikshaw had kept the engine running. He saw the incident in the headlight of the autorikshaw also. PW4 Varkey, who is the elder brother of PW3 corroborated his evidence. PW1, the doctor, who examined PW3 Kuriakose proved Ext.P1 wound certificate. A perusal of Ext.P1 wound certificate would show that, PW3 sustained injury. The first version of PW3 to the doctor will also show that, he implicated the name of the appellant. PW7 is the Circle Inspector of Police, Kaduthuruthy, during** CRL.APPEAL NO.1029 OF 2004 11 **that relevant time. According to him on 29.8.1997 at about 7 a.m. he had arrested the accused from Kaduthuruthy and questioned him. While questioning, the accused told him that “I have kept the bag above the wall almirah in the Vellakkattil Veedu and if I were taken to that house I shall take the bag and produce it before you”. The said information which was given by the accused is marked as Ext.P4(a). PW7 also stated that, in pursuance of Ext.P4(a) information, as led by the accused, himself along with the accused went to House No.7/300 called Vellakkattu Veedu, within the limits of Mulakkulam Panchayath. It is the further case of PW7 that, the accused took MO1 bag from above a built in almirah in the wall on the eastern side of the room which is situated in the north western portion of that house and produced it before him. According to PW7, he seized MO1 as per Ext.P4 seizure mahazar in the presence of independent witnesses. PW7 further stated that, on 25.09.1997 at about 12 in the noon the present owner of the autorikshaw bearing No.KL-5B/7600 had produced the** CRL.APPEAL NO.1029 OF 2004 12 **vehicle before him and he had seized it under Ext.P6** **mahazar.** **12. The defence case is that, there is an enmity in between PW3 and the father of the accused Ullas called Thampi and consequent to this, PW3 foisted this case against the accused. But the defence was not able to prove the case. The seizure of MO1 is proved through the evidence of PW7 which is supported by PW5, who is an attester to Ext.P4. There is nothing to suspect the evidence of PW5 and PW7 regarding the recovery of MO1. The evidence of PW3 and PW4 are convincing and nothing to disbelieve their evidence. They narrated the incident according to the sequence. There is no serious contradictions in their evidence. The defence was not able to prove that, the case is registered because of the enmity of PW3 towards him. The medical evidence of PW1 corroborates with the oral evidence of PW3 and PW4. The trial court, after considering the entire evidence found that, the accused committed the offence under Section 395 IPC. There is nothing to interfere with the well considered** CRL.APPEAL NO.1029 OF 2004 13 ## **judgment of the trial court.** **13. Now, I turn to the sentence imposed in this case. The maximum sentence that can be imposed under Section 395 IPC is imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and fine. The trial court imposed only rigorous imprisonment for a period of three years. I do not think that, there is anything to interfere with the sentence imposed by the trial court.** **Hence, this Criminal Appeal is dismissed, confirming the conviction and sentence imposed on the appellant as per the judgment dated 1.6.2004 in S.C. No.39 of 2004 by the Additional Sessions Court (Adhoc)-1, Kottayam.** **pkk** **Sd/P.V.KUNHIKRISHNAN JUDGE**