{"id":43272,"date":"2008-07-28T00:00:00","date_gmt":"2008-07-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kunjumon-vs-state-of-kerala-on-28-july-2008"},"modified":"2017-05-09T11:55:25","modified_gmt":"2017-05-09T06:25:25","slug":"kunjumon-vs-state-of-kerala-on-28-july-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kunjumon-vs-state-of-kerala-on-28-july-2008","title":{"rendered":"Kunjumon vs State Of Kerala on 28 July, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
Kunjumon vs State Of Kerala on 28 July, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCrl.Rev.Pet.No. 15 of 1998(B)\n\n\n\n1. KUNJUMON\n                      ...  Petitioner\n\n                        Vs\n\n1. STATE OF KERALA\n                       ...       Respondent\n\n                For Petitioner  :SRI.JOHN JOSEPH\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice V.RAMKUMAR\n\n Dated :28\/07\/2008\n\n O R D E R\n                    V. RAMKUMAR, J.\n            = = = = = = = = = = = = = = = = = = =\n               CRL.REV. PET. NO.15 OF 1998\n           = = = = = = = = = = = = = = = = = = =\n          Dated this the 28th day of July, 2008\n\n                          O R D E R\n<\/pre>\n
                           ———–\n<\/p>\n
     The third accused in S.C. No.2 of 1993 on the file of the<\/p>\n
Assistant Sessions Judge, Thrissur for offences punishable<\/p>\n
under Sections 454, 394, 397, 398 read with 34 IPC<\/p>\n
challenges the conviction entered and the sentence passed<\/p>\n
against him concurrently by the courts below for the said<\/p>\n
offences.\n<\/p>\n
     2.  The case of the prosecution can be summarised as<\/p>\n
follows:\n<\/p>\n
     Accused 1 to 3, in furtherance of their common intention<\/p>\n
to rob P.W.3, committed house breaking armed with deadly<\/p>\n
weapons like dagger and air pistol and criminally trespassed<\/p>\n
into the residential house of P.W.3 bearing No.XI\/13 of<\/p>\n
Valappad Panchayat at about 6.45 a.m. on 15.8.1991. They<\/p>\n
demanded money from P.W.3. When P.W.3 screamed aloud<\/p>\n
the second accused gaged his mouth with a towel and the<\/p>\n
third accused (Revision Petitioner) held tightly from behind<\/p>\n
the wriggling P.W.3 and when he tired to extricate himself<\/p>\n
CRL. R.P. NO.15 OF 1998
\n                              -: 2 :-<\/span><\/p>\n
from the clutches, the third accused cut him at his back, head<\/p>\n
and elbow with a dagger inflicting grievous injuries.     When<\/p>\n
P.W.4, the wife of P.W.3, hurried into the room on hearing the<\/p>\n
screams of P.W.3, the first accused battered her on her head<\/p>\n
with the butt of the air pistol causing fracture of her head.<\/p>\n
The second accused then snatched away 5 soverigns of gold<\/p>\n
worth Rs.15,000\/- from the neck of P.W.4. When P.Ws.3 and 4<\/p>\n
raised a hue and cry the three accused persons fled from the<\/p>\n
scene. The accused persons who inflicted grievous injuries on<\/p>\n
P.Ws.3 and 4 using deadly weapons while committing robbery<\/p>\n
have committed the aforementioned offences.<\/p>\n
     3.    Accused 2 and 3 faced with the trial.      The first<\/p>\n
accused is still absconding.\n<\/p>\n
     4.    On accused 2 and 3 pleading not guilty to the<\/p>\n
charge framed against them by the trial court           for the<\/p>\n
aforementioned offences, the prosecution was permitted to<\/p>\n
adduce evidence in support of its case.        The prosecution<\/p>\n
altogether examined 19 witnesses as P.Ws.1 to 19 and got<\/p>\n
marked 13 documents as Exhibits P1 to P13 and 16 material<\/p>\n
objects as M.Os.1 to 16.\n<\/p>\n
     5.    After the close of the prosecution evidence, accused<\/p>\n
CRL. R.P. NO.15 OF 1998
\n                             -: 3 :-<\/span><\/p>\n
2 and 3 were questioned under Section 313 (1)(b) of the<\/p>\n
Criminal Procedure Code with regard to the incriminating<\/p>\n
circumstances appearing against them in the evidence for the<\/p>\n
prosecution.           They denied those circumstances and<\/p>\n
maintained their innocence. Since the learned trial Judge did<\/p>\n
not consider this to be a fit case for recording an order of<\/p>\n
acquittal under Section 232 Cr.P.C, accused 2 and 3 were<\/p>\n
called upon to enter on their defence and to adduce any<\/p>\n
evidence which they might have in support thereof. They did<\/p>\n
not adduce any defence evidence.\n<\/p>\n
     6.    The learned Assistant Sessions Judge, after trial, as<\/p>\n
per judgment dated 2.8.1994 found accused 2 and 3 guilty of<\/p>\n
the offences punishable under Section 392\/397 and 454 IPC.<\/p>\n
The revision petitioner-third accused was sentenced to<\/p>\n
undergo Rigorous Imprisonment for seven years under Section<\/p>\n
392\/397 IPC and for the offence under Section 454 IPC he was<\/p>\n
sentenced to undergo Rigorous Imprisonment for two years.<\/p>\n
The sentences were directed to run concurrently. On appeals<\/p>\n
preferred by second and third accused as Crl.Appeal Nos.166<\/p>\n
and 167 of 1994 respectively before the Sessions Court,<\/p>\n
Thrissur, the lower appellate court as per common judgment<\/p>\n
CRL. R.P. NO.15 OF 1998
\n                             -: 4 :-<\/span><\/p>\n
dated 29.11.1997 confirmed the conviction entered and the<\/p>\n
sentence imposed against the revision petitioner. Hence this<\/p>\n
revision.\n<\/p>\n
     7.    I have heard Advocate Shri John Joseph, learned<\/p>\n
counsel for the revision petitioner as well as Advocate Shri<\/p>\n
C.M. Nazar, learned Public Prosecutor, who defended the<\/p>\n
State.\n<\/p>\n
     8.    Arguing the revision, learned counsel for the<\/p>\n
revision petitioner made the following submissions before me:<\/p>\n
       The prosecution has failed to adduce satisfactory<\/p>\n
evidence to prove the identification of the revision petitioner.<\/p>\n
Admittedly, none of the prosecution witnesses had any<\/p>\n
previous acquaintance with the revision petitioner. P.Ws.2, 3<\/p>\n
and 4 had only a fleeting glance of the revision petitioner and<\/p>\n
there was hardly sufficient light at that point of time for<\/p>\n
anybody to identify the features of the revision petitioner so<\/p>\n
as to distinctly remember him thereafter. Admittedly, no test<\/p>\n
identification parade has been conducted by the investigating<\/p>\n
agency to corroborate     the identification of the revision<\/p>\n
petitioner by any of the prosecution witnesses. No recovery<\/p>\n
was also effected from the revision petitioner. Under these<\/p>\n
CRL. R.P. NO.15 OF 1998
\n                             -: 5 :-<\/span><\/p>\n
circumstances, the conviction recorded against the revision<\/p>\n
petitioner by the courts below cannot be sustained.<\/p>\n
     9.    I cannot agree with the above submissions. P.W.1 is<\/p>\n
the brother of P.W.3. He resides in the property situated to<\/p>\n
the west of the house in which P.Ws.3 and 4 were residing.<\/p>\n
P.Ws.3 and 4, who are husband and wife, were residing in the<\/p>\n
house of occurrence at Valappad. P.W.1 does not have any<\/p>\n
direct knowledge about the occurrence. He got information<\/p>\n
from P.W.2, the maid servant of P.Ws.3 and 4, to the effect<\/p>\n
that at about 6.45 a.m. on 15.8.1991 the three assailants<\/p>\n
snatched the gold chain from the neck of P.W.4 after injuring<\/p>\n
P.Ws.3 and 4. He came running there and came to know that<\/p>\n
the assailants had escaped in Shamija bus which had left the<\/p>\n
place a few moments before.        P.W.1 thereupon chased the<\/p>\n
bus in his own car along with some of the bystanders who had<\/p>\n
gathered at the place of occurrence.        At a place called<\/p>\n
Karayamuttom the car intercepted the bus and the three<\/p>\n
assailants were caught from the bus and brought to the scene<\/p>\n
of occurrence from where the police was informed and accused<\/p>\n
persons were handed over to the police.\n<\/p>\n
     10. P.W.2, Chandramathy, is the kitchen maid of P.Ws.3<\/p>\n
CRL. R.P. NO.15 OF 1998
\n                              -: 6 :-<\/span><\/p>\n
and 4. She was proceeding to the house of P.Ws.3 and 4 as<\/p>\n
usual to attend her daily routine.     When she reached     the<\/p>\n
house of P.W.3 she heard a loud scream from that house and<\/p>\n
saw three persons coming along the lane leading from the<\/p>\n
house of P.W.3 to public road. Those three persons hurriedly<\/p>\n
boarded Shamija bus which came along the public road. She<\/p>\n
then ran to P.W.3’s house and saw P.Ws.3 and 4 lying<\/p>\n
profusely bleeding.     Their daughter Haseena told her that<\/p>\n
three assailants trespassed into their dining room and had<\/p>\n
snatched a gold chain from the neck of P.W.4 after stabbing<\/p>\n
and beating P.Ws.3 and 4. They had also hit P.W.4 with the air<\/p>\n
pistol. P.W.2 suddenly went to the neighbouring house of<\/p>\n
P.W.1 and       informed about the incident.    She then took<\/p>\n
P.Ws.3 and 4 to the Medical College Hospital, Thrissur. P.W.2<\/p>\n
had also identified accused 2 and 3 out of the three assailants<\/p>\n
who had made good their escape by boarding Shamija bus.<\/p>\n
     11. P.Ws.3 and 4, the husband and wife, were the<\/p>\n
victims of the robbery coupled with assault.      Both of them<\/p>\n
had no difficulty in identifying accused 2 and 3 as the persons<\/p>\n
who had visited their house on the previous day. Both of them<\/p>\n
deposed that on the previous day evening also the assailants<\/p>\n
CRL. R.P. NO.15 OF 1998
\n                             -: 7 :-<\/span><\/p>\n
had visited their house. On the ill-fated day at about 6.00 a.m.<\/p>\n
they went out of the house to the cow shed for milking their<\/p>\n
cow. Thereafter at 6.30 a.m. P.W. 3 came to the dining room<\/p>\n
and while he was taking tea he saw the three persons who<\/p>\n
had visited his house on the previous day sitting in the dining<\/p>\n
room.    When he questioned their presence there, the first<\/p>\n
accused took the air pistol and pressed it against his belly<\/p>\n
and demanded ransom money. When he screamed accused 2<\/p>\n
and 3 pounced       upon him. The second accused gaged his<\/p>\n
mouth with a towel and the third accused held tightly both his<\/p>\n
hands from behind. P.W.3 screamed aloud and wriggled out to<\/p>\n
extricate himself from the clutches of the intruders. At that<\/p>\n
time the third accused stabbed P.W.3 on his back, head and<\/p>\n
chest with M.O.1 dagger. On hearing the hue and cry, P.W.4,<\/p>\n
the wife of P.W.3, rushed into the house. Then accused 1 and<\/p>\n
2 ran towards P.W.4. The first accused battered P.W.4 on her<\/p>\n
head with the butt of the air pistol. At that time the second<\/p>\n
accused snatched the gold chain from the neck of P.W.4.<\/p>\n
While P.Ws.3 and 4 were crying and screaming, the assailants<\/p>\n
made good their escape after leaving the dagger, air pistol,<\/p>\n
plastic rope, chilly powder, etc.<\/p>\n
CRL. R.P. NO.15 OF 1998
\n                               -: 8 :-<\/span><\/p>\n
     12. P.W.5 was a neighbour of P.W.3 who rushed to the<\/p>\n
house on hearing the hue and cry of P.Ws.3 and 4. While he<\/p>\n
was coming to the house he saw three persons hurriedly<\/p>\n
stopping Shamija bus and boarding the same.          He had<\/p>\n
accompanied P.W.1 in his car for chasing the bus. They had<\/p>\n
caught the three assailants red handed from the bus and later<\/p>\n
handed over them to the police.\n<\/p>\n
     13. P.W.6 was the salesman of M\/s.Jacob and Company,<\/p>\n
Ernakulam. He was examined to prove that the air pistol was<\/p>\n
purchased by the first accused from his shop on 3.7.1991 and<\/p>\n
that M.O.2 is the said air pistol.\n<\/p>\n
     14. P.W.7 is the person who was running a canteen at<\/p>\n
Kalamassery.       He deposed that the third accused-revision<\/p>\n
petitioner had allegedly     worked as a canteen boy    upto<\/p>\n
13.8.1991. He, however, did not support the prosecution.<\/p>\n
     15. P.W.8         was a merchant from whom the accused<\/p>\n
had allegedly purchased M.O.4 plastic rope. He also turned<\/p>\n
disloyal to the prosecution.\n<\/p>\n
     16. P.W.9., Shahul Hameed, was one of the Partners of<\/p>\n
a Firm where the second accused was working.<\/p>\n
     17. P.W.10 was the driver of Shamija bus in which<\/p>\n
CRL. R.P. NO.15 OF 1998
\n                              -: 9 :-<\/span><\/p>\n
accused 2 and 3 along with another person had made good<\/p>\n
their escape in the morning of 15.8.1991. He deposed that<\/p>\n
when the bus reached karayamuttom, a car overtook the bus<\/p>\n
and intercepted the same and the three assailants were taken<\/p>\n
away.\n<\/p>\n
     18. P.W.12         was the room boy of a lodge at<\/p>\n
Thriprayar. It was in that lodge that accused 2 and 3 had<\/p>\n
stayed during the night previous to the date of occurrence.<\/p>\n
     19. It is true that the investigating agency did not<\/p>\n
conduct an identification parade. But it must be remembered<\/p>\n
that the assailants had visited the house of P.W.3 and 4 on the<\/p>\n
previous day evening.    P.W.3 saw them on the very next day<\/p>\n
morning and that too as intruders in his dining room and he<\/p>\n
had questioned their presence there.     It was thereafter that<\/p>\n
the assault took place. During these occasions P.W.3 had<\/p>\n
ample opportunity to interact with accused 1 to 3 and identify<\/p>\n
their features enabling him to recognise accused 2 and 3<\/p>\n
without any difficulty.  Merely because P.W.3 had no previous<\/p>\n
acquaintance with accused 2 and 3 prior to the day previous to<\/p>\n
the occurrence it does not follow that his identification of<\/p>\n
accused 2 and 3 at the time of trial is weakened by the said<\/p>\n
CRL. R.P. NO.15 OF 1998
\n                              -: 10 :-<\/span><\/p>\n
fact. The trial Judge who had unique opportunity of watching<\/p>\n
the demeanour of the witnesses in the box had no difficulty in<\/p>\n
accepting the testimony of P.Ws. 1 to 4. It is true that soon<\/p>\n
after the occurrence, P.W.1, who had seen the 3 persons<\/p>\n
hurriedly escaping from the scene of occurrence, after a hot<\/p>\n
chase, caught hold of the three assailants from the bus in<\/p>\n
which they had made good their escape.        Unless he was not<\/p>\n
familiar with the features of accused 1 to 3 it could not have<\/p>\n
been possible for him to catch accused 1 to 3 without any<\/p>\n
difficulty from the bus.       The courts below have, after a<\/p>\n
careful evaluation of the oral and documentary evidence,<\/p>\n
entered the conviction against the accused. This Court, sitting<\/p>\n
in revision, will be loathe to interfere with the said conviction<\/p>\n
which is accordingly confirmed against the revision petitioner.<\/p>\n
      20. What now survives for consideration is the question<\/p>\n
regarding the adequacy or otherwise of the sentence imposed.<\/p>\n
The daring manner in which the accused persons came to the<\/p>\n
house of P.Ws.3 and 4 in the previous day evening and the<\/p>\n
daring manner in which they came to their house at a time<\/p>\n
when they went out of the house for milking the cow and that<\/p>\n
too with deadly weapons, the assault and snatching of gold<\/p>\n
CRL. R.P. NO.15 OF 1998
\n                             -: 11 :-<\/span><\/p>\n
chain from the neck of P.W.4 are all sufficient to justify the<\/p>\n
imposition of penal servitude by way of incarceration. The<\/p>\n
lower appellate court has also carefully evaluated the<\/p>\n
sentence as well as the legality of the same against the<\/p>\n
revision petitioner. I do not find any good reason to interfere<\/p>\n
with the said conviction entered and the     sentence passed<\/p>\n
against the revision petitioner.\n<\/p>\n
     In the result, the revision is devoid of merits and it is<\/p>\n
dismissed confirming the conviction entered and sentence<\/p>\n
concurrently passed against the revision petitioner.<\/p>\n
                                      V. RAMKUMAR, JUDGE.\n<\/p>\n
vsv<\/p>\n
         V. RAMKUMAR, J.\n<\/p>\n
=====================
\n CRL. REV. PET. NO.15 OF 1998
\n=====================
\n              O R D E R\n<\/p>\n
——————————————-\n<\/p>\n
        28TH JULY, 2008<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Kunjumon vs State Of Kerala on 28 July, 2008 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-43272","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nKunjumon vs State Of Kerala on 28 July, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kunjumon-vs-state-of-kerala-on-28-july-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kunjumon vs State Of Kerala on 28 July, 2008 - 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