IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 15 of 1998(B)
1. KUNJUMON
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.JOHN JOSEPH
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :28/07/2008
O R D E R
V. RAMKUMAR, J.
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CRL.REV. PET. NO.15 OF 1998
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Dated this the 28th day of July, 2008
O R D E R
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The third accused in S.C. No.2 of 1993 on the file of the
Assistant Sessions Judge, Thrissur for offences punishable
under Sections 454, 394, 397, 398 read with 34 IPC
challenges the conviction entered and the sentence passed
against him concurrently by the courts below for the said
offences.
2. The case of the prosecution can be summarised as
follows:
Accused 1 to 3, in furtherance of their common intention
to rob P.W.3, committed house breaking armed with deadly
weapons like dagger and air pistol and criminally trespassed
into the residential house of P.W.3 bearing No.XI/13 of
Valappad Panchayat at about 6.45 a.m. on 15.8.1991. They
demanded money from P.W.3. When P.W.3 screamed aloud
the second accused gaged his mouth with a towel and the
third accused (Revision Petitioner) held tightly from behind
the wriggling P.W.3 and when he tired to extricate himself
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from the clutches, the third accused cut him at his back, head
and elbow with a dagger inflicting grievous injuries. When
P.W.4, the wife of P.W.3, hurried into the room on hearing the
screams of P.W.3, the first accused battered her on her head
with the butt of the air pistol causing fracture of her head.
The second accused then snatched away 5 soverigns of gold
worth Rs.15,000/- from the neck of P.W.4. When P.Ws.3 and 4
raised a hue and cry the three accused persons fled from the
scene. The accused persons who inflicted grievous injuries on
P.Ws.3 and 4 using deadly weapons while committing robbery
have committed the aforementioned offences.
3. Accused 2 and 3 faced with the trial. The first
accused is still absconding.
4. On accused 2 and 3 pleading not guilty to the
charge framed against them by the trial court for the
aforementioned offences, the prosecution was permitted to
adduce evidence in support of its case. The prosecution
altogether examined 19 witnesses as P.Ws.1 to 19 and got
marked 13 documents as Exhibits P1 to P13 and 16 material
objects as M.Os.1 to 16.
5. After the close of the prosecution evidence, accused
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2 and 3 were questioned under Section 313 (1)(b) of the
Criminal Procedure Code with regard to the incriminating
circumstances appearing against them in the evidence for the
prosecution. They denied those circumstances and
maintained their innocence. Since the learned trial Judge did
not consider this to be a fit case for recording an order of
acquittal under Section 232 Cr.P.C, accused 2 and 3 were
called upon to enter on their defence and to adduce any
evidence which they might have in support thereof. They did
not adduce any defence evidence.
6. The learned Assistant Sessions Judge, after trial, as
per judgment dated 2.8.1994 found accused 2 and 3 guilty of
the offences punishable under Section 392/397 and 454 IPC.
The revision petitioner-third accused was sentenced to
undergo Rigorous Imprisonment for seven years under Section
392/397 IPC and for the offence under Section 454 IPC he was
sentenced to undergo Rigorous Imprisonment for two years.
The sentences were directed to run concurrently. On appeals
preferred by second and third accused as Crl.Appeal Nos.166
and 167 of 1994 respectively before the Sessions Court,
Thrissur, the lower appellate court as per common judgment
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dated 29.11.1997 confirmed the conviction entered and the
sentence imposed against the revision petitioner. Hence this
revision.
7. I have heard Advocate Shri John Joseph, learned
counsel for the revision petitioner as well as Advocate Shri
C.M. Nazar, learned Public Prosecutor, who defended the
State.
8. Arguing the revision, learned counsel for the
revision petitioner made the following submissions before me:
The prosecution has failed to adduce satisfactory
evidence to prove the identification of the revision petitioner.
Admittedly, none of the prosecution witnesses had any
previous acquaintance with the revision petitioner. P.Ws.2, 3
and 4 had only a fleeting glance of the revision petitioner and
there was hardly sufficient light at that point of time for
anybody to identify the features of the revision petitioner so
as to distinctly remember him thereafter. Admittedly, no test
identification parade has been conducted by the investigating
agency to corroborate the identification of the revision
petitioner by any of the prosecution witnesses. No recovery
was also effected from the revision petitioner. Under these
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circumstances, the conviction recorded against the revision
petitioner by the courts below cannot be sustained.
9. I cannot agree with the above submissions. P.W.1 is
the brother of P.W.3. He resides in the property situated to
the west of the house in which P.Ws.3 and 4 were residing.
P.Ws.3 and 4, who are husband and wife, were residing in the
house of occurrence at Valappad. P.W.1 does not have any
direct knowledge about the occurrence. He got information
from P.W.2, the maid servant of P.Ws.3 and 4, to the effect
that at about 6.45 a.m. on 15.8.1991 the three assailants
snatched the gold chain from the neck of P.W.4 after injuring
P.Ws.3 and 4. He came running there and came to know that
the assailants had escaped in Shamija bus which had left the
place a few moments before. P.W.1 thereupon chased the
bus in his own car along with some of the bystanders who had
gathered at the place of occurrence. At a place called
Karayamuttom the car intercepted the bus and the three
assailants were caught from the bus and brought to the scene
of occurrence from where the police was informed and accused
persons were handed over to the police.
10. P.W.2, Chandramathy, is the kitchen maid of P.Ws.3
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and 4. She was proceeding to the house of P.Ws.3 and 4 as
usual to attend her daily routine. When she reached the
house of P.W.3 she heard a loud scream from that house and
saw three persons coming along the lane leading from the
house of P.W.3 to public road. Those three persons hurriedly
boarded Shamija bus which came along the public road. She
then ran to P.W.3’s house and saw P.Ws.3 and 4 lying
profusely bleeding. Their daughter Haseena told her that
three assailants trespassed into their dining room and had
snatched a gold chain from the neck of P.W.4 after stabbing
and beating P.Ws.3 and 4. They had also hit P.W.4 with the air
pistol. P.W.2 suddenly went to the neighbouring house of
P.W.1 and informed about the incident. She then took
P.Ws.3 and 4 to the Medical College Hospital, Thrissur. P.W.2
had also identified accused 2 and 3 out of the three assailants
who had made good their escape by boarding Shamija bus.
11. P.Ws.3 and 4, the husband and wife, were the
victims of the robbery coupled with assault. Both of them
had no difficulty in identifying accused 2 and 3 as the persons
who had visited their house on the previous day. Both of them
deposed that on the previous day evening also the assailants
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had visited their house. On the ill-fated day at about 6.00 a.m.
they went out of the house to the cow shed for milking their
cow. Thereafter at 6.30 a.m. P.W. 3 came to the dining room
and while he was taking tea he saw the three persons who
had visited his house on the previous day sitting in the dining
room. When he questioned their presence there, the first
accused took the air pistol and pressed it against his belly
and demanded ransom money. When he screamed accused 2
and 3 pounced upon him. The second accused gaged his
mouth with a towel and the third accused held tightly both his
hands from behind. P.W.3 screamed aloud and wriggled out to
extricate himself from the clutches of the intruders. At that
time the third accused stabbed P.W.3 on his back, head and
chest with M.O.1 dagger. On hearing the hue and cry, P.W.4,
the wife of P.W.3, rushed into the house. Then accused 1 and
2 ran towards P.W.4. The first accused battered P.W.4 on her
head with the butt of the air pistol. At that time the second
accused snatched the gold chain from the neck of P.W.4.
While P.Ws.3 and 4 were crying and screaming, the assailants
made good their escape after leaving the dagger, air pistol,
plastic rope, chilly powder, etc.
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12. P.W.5 was a neighbour of P.W.3 who rushed to the
house on hearing the hue and cry of P.Ws.3 and 4. While he
was coming to the house he saw three persons hurriedly
stopping Shamija bus and boarding the same. He had
accompanied P.W.1 in his car for chasing the bus. They had
caught the three assailants red handed from the bus and later
handed over them to the police.
13. P.W.6 was the salesman of M/s.Jacob and Company,
Ernakulam. He was examined to prove that the air pistol was
purchased by the first accused from his shop on 3.7.1991 and
that M.O.2 is the said air pistol.
14. P.W.7 is the person who was running a canteen at
Kalamassery. He deposed that the third accused-revision
petitioner had allegedly worked as a canteen boy upto
13.8.1991. He, however, did not support the prosecution.
15. P.W.8 was a merchant from whom the accused
had allegedly purchased M.O.4 plastic rope. He also turned
disloyal to the prosecution.
16. P.W.9., Shahul Hameed, was one of the Partners of
a Firm where the second accused was working.
17. P.W.10 was the driver of Shamija bus in which
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accused 2 and 3 along with another person had made good
their escape in the morning of 15.8.1991. He deposed that
when the bus reached karayamuttom, a car overtook the bus
and intercepted the same and the three assailants were taken
away.
18. P.W.12 was the room boy of a lodge at
Thriprayar. It was in that lodge that accused 2 and 3 had
stayed during the night previous to the date of occurrence.
19. It is true that the investigating agency did not
conduct an identification parade. But it must be remembered
that the assailants had visited the house of P.W.3 and 4 on the
previous day evening. P.W.3 saw them on the very next day
morning and that too as intruders in his dining room and he
had questioned their presence there. It was thereafter that
the assault took place. During these occasions P.W.3 had
ample opportunity to interact with accused 1 to 3 and identify
their features enabling him to recognise accused 2 and 3
without any difficulty. Merely because P.W.3 had no previous
acquaintance with accused 2 and 3 prior to the day previous to
the occurrence it does not follow that his identification of
accused 2 and 3 at the time of trial is weakened by the said
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fact. The trial Judge who had unique opportunity of watching
the demeanour of the witnesses in the box had no difficulty in
accepting the testimony of P.Ws. 1 to 4. It is true that soon
after the occurrence, P.W.1, who had seen the 3 persons
hurriedly escaping from the scene of occurrence, after a hot
chase, caught hold of the three assailants from the bus in
which they had made good their escape. Unless he was not
familiar with the features of accused 1 to 3 it could not have
been possible for him to catch accused 1 to 3 without any
difficulty from the bus. The courts below have, after a
careful evaluation of the oral and documentary evidence,
entered the conviction against the accused. This Court, sitting
in revision, will be loathe to interfere with the said conviction
which is accordingly confirmed against the revision petitioner.
20. What now survives for consideration is the question
regarding the adequacy or otherwise of the sentence imposed.
The daring manner in which the accused persons came to the
house of P.Ws.3 and 4 in the previous day evening and the
daring manner in which they came to their house at a time
when they went out of the house for milking the cow and that
too with deadly weapons, the assault and snatching of gold
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chain from the neck of P.W.4 are all sufficient to justify the
imposition of penal servitude by way of incarceration. The
lower appellate court has also carefully evaluated the
sentence as well as the legality of the same against the
revision petitioner. I do not find any good reason to interfere
with the said conviction entered and the sentence passed
against the revision petitioner.
In the result, the revision is devoid of merits and it is
dismissed confirming the conviction entered and sentence
concurrently passed against the revision petitioner.
V. RAMKUMAR, JUDGE.
vsv
V. RAMKUMAR, J.
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CRL. REV. PET. NO.15 OF 1998
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O R D E R
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28TH JULY, 2008