Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 5TH DAY OF JULY 2023 / 14TH ASHADHA, 1945 CRL.A NO. 861 OF 2019 AGAINST THE ORDER/JUDGMENT IN SC 230/2014 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - III, THALASSERY DATED APPELLANT/ACCUSED No.1: RAVI AGED 30 YEARS S/O. ALAKAR, COOLIE, MULLUGUPPA, SHIMOGA, KARNATAKA. BY ADVS.SRI.N.SHANOJ SRI.S.KRISHNALAL RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. OTHER PRESENT: PP SMT.NIMA JACOB THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -:2:-
JUDGMENT
Dated this the 5th day of July, 2023 This appeal is originated from a judgment passed by Additional Court of Sessions-III, Thalassery (for short ‘the trial court’) on 20.06.2019 in SC No.230 of 2014.
2. The appellant is accused No.1 in the above case. He
was found guilty by the trial court for offences punishable under Sections 457 and 380 of the Indian Penal Code, 1860 (for short ‘the IPC’) and not guilty for the offence under Sections 395 and 413 IPC. Another accused was also involved in the case and he was found not guilty for offences under Sections 457, 395 and 413 IPC. The appellant herein was convicted and sentenced to undergo rigorous imprisonment for three years and to pay a fine of ₹10,000/- under Section 457 IPC and in default of payment of fine to undergo rigorous imprisonment for three years; to undergo rigorous imprisonment for three years and to pay a fine of ₹10,000/- and in default, to undergo rigorous imprisonment
-:3:- for three more months for the offence under Section 380 IPC. The substantive sentences were directed to run concurrently. The period of detention already undergone is permitted to be set off against the substantive term of imprisonment.
3. The case of the prosecution was that on 04.07.2012 at
4:00 a.m., accused 1 to 4 alongwith two other accused whose identity was not brought out, committed house breaking into the house of PW1 by night. A portion of the gold chain worn by PW1 was snatched by the accused. Thus he thieved gold chain of three sovereigns. As per the prosecution case, after the theft the accused sold the stolen property to A7 who received the same by knowing it to be stolen property. Crime No.1286/2012 was
registered and investigation commenced. On concluding the investigation, final report was laid against the accused alleging commission of offences stated as above. Final report was filed by the Investigating Officer before Judicial First Class Magistrate Court-I, Kannur. On finding that the offences in the final report include an offence triable by the Court of Sessions, by initiating proceedings as 57/2013, the case was committed to Court of
-:4:- Sessions, Thalassery. Accused Nos.3 and 4 were absconded. Accused Nos.1, 2 and 5 were produced before the court. The case was made over by Court of Sessions, Thalassery to Additional Court of Sessions-III, Thalassery and was numbered as SC No.230/2014. The accused were enlarged on bail. Accused No.3 who was accused No.5 in the final report died during pendency of the case and therefore the case against him was closed as abated.
4. After hearing both sides and verifying the records
proposed to be relied on by the prosecution, charge was framed against accused Nos.1 and 2 under Sections, 457, 395 and 413 IPC. Charge was read over and explained to the accused. They pleaded not guilty and thus the trial was commenced.
5. On the side of the prosecution, PWs 1 to 9 were
examined. Exts. P1 to P18 and MO1 and MO2 were marked in evidence. On closure of the prosecution evidence, accused was questioned with reference to the incriminating circumstances brought in evidence by the prosecution, under Section 313 (1) (b) -:5:- Cr.P.C. The accused denied all the incriminating circumstances put to him and pleaded total innocence.
6. Both the prosecutor and the defence counsel were heard under Section 232 Cr.P.C. Sufficient grounds having not
been made out from the arguments advanced, to record an order
of acquittal, the accused were called upon to enter on their defence. They did not adduce any evidence. The learned Public Prosecutor and the learned counsel for the defence were heard then. Documentary evidence adduced were perused. The arguments advanced by the parties were also evaluated on the basis of the evidence adduced by them. The trial court found the appellant guilty for the offence under Sections 457 and 380 IPC and thereby convicted and sentenced him as stated hereinabove.
7. The learned counsel for the appellant has argued
mainly on the point of identification of the accused by PW1. According to him, at 4:00 a.m, a gold chain worn by PW1 was snatched away by the accused from her neck. According to her on being felt that, she woke up from sleep and found a lean person with black complexion, rushing out of her bed room. She -:6:- chased him, but he escaped. According to her, only a portion of the chain was taken away by the accused, whereas the remaining part was with her.
8. As per the case of the prosecution, the accused was arrested and was shown to PW1 at Kannur police station. PW1 would say during examination in court that she was called to the
police station and the accused was identified. Investigation in the case was done by PWs 8 and 9. They don’t have a case that the accused was identified by PW1 in a test identification parade. PW1 also does not have a case that she identified the accused from several persons. As per the version of PW1, the person identified by her as accused was shown to her by the police at the police station and she identified him. PW1 did not speak about the availability of light in the room orelse she has put the light on, after being woke up from sleep. What has been spoken by PW1 was that when she wake up, she found a thin man with
black complexion rushing out of her bed room. She has not spoken about any other marks or features of identification of that -:7:- person. She gave statement to the police to the effect that she had seen the accused and thus identified him.
9. The piece of the gold chain snatched away by the
accused was procured on the basis of a disclosure statement made by the accused to the police after his arrest. PW8 and PW9 would say that after obtaining him in police custody they recorded his confession statement on 30.08.2013. On the very same day based on the information furnished, the accused was taken to the place where the piece of the gold chain snatched by
him was kept concealed. It was a room occupied by one Mr.Selvaraj and the accused led the police to that place. Mr.Selvaraj recovered the piece of the gold chain which was sold by the accused to him. As per the case of the prosecution, Mr.Selvaraj purchased the piece of the gold chain knowingly it as stolen property. According to the prosecution, the recovery of the piece of gold chain was made from accused No.3 under Section 27 of the Indian Evidence Act, 1872 ( for short 'the Act') and after preparing a seizure mahazar on the very same day. The seizure mahazar is marked in evidence as Ext.P9. In Ext.P9, the -:8:- disclosure statement made by the appellant while recording his
confession statement, was extracted. It was also deposed by PW8 in categoric terms while he was examined before the court. Therefore, it was urged by the learned Public Prosecutor that the recovery having been effected pursuant to a disclosure statement made by the accused, it would come within the purview of recovery under Section 27 of the Act and is a very relevant aspect which the prosecution can satisfactorily relied on to establish the guilt of the offences alleged against the accused.
10. The argument advanced by the learned Public
Prosecutor in that respect is meritorious and is upheld. But as per the records of the prosecution, it was found that a piece of the gold chain thus recovered, reached the court only on 21.10.2013, much later to its seizure on 30.08.2013. The reason for the delayed production of that property before the court was neither explained by PW8 nor by PW9.
11. The accused was identified by PW1 on 30.08.2013. The incident in question was occurred on 04.07.2012. Therefore, it took more than one year for the police to arrest the accused -:9:-
and made his presence available for identification by PW1. In Mohd. Abdul Hafeez v. State of Andra Pradesh [1983 KHC 413] relied on by the learned counsel the identification of the accused after four months of the commission of the offence,
based by the trial court for conviction of the accused was held
improper by the appellate court and order of conviction was reversed. PW1 during examination before the court has not spoken that she had noticed any specific identifiable features of PW1 when she claimed to have seen him for the first time. Lean physique and black complexion will not form features helping identification, since it is common features so many people are
having. In that context, a test identification parade ought to have been arranged by the Investigating Officer for facilitating a meaningful and true identification, which they failed to arrange. Evidence is totally lacking about the availability of light at the place of incident at the time the theft alleged was committed by the accused. Therefore, though the piece of the gold chain was established as recovered in a recovery under Section 27 of the Act, a doubt still remains, how the accused was arrested and
-:10:- identified by PW1. This Court is justified in taking the view on the basis of the dictum in Mohd.Abdul Hafeez supra.
12. In a case where, PW1 being the only witness of the
incident and any specific features of identification of the accused having not been spoken as noticed by her when she saw him for the first time, the Investigating Officer must have conducted a
test identification parade for identification purpose and identification of the accused by bringing him alone before the witness, in no stretch of imagination can be treated as a true identification. Moreover, the delay in production of the piece of the chain recovered from the accused under Section 27 of the Act, in the absence of any cogent explanation offered by the Investigating Officer would also create some suspicion as to it's recovery in the manner alleged by the prosecution. For the foregoing reasons, this court is constrained to take a view that the trial court is unjustified and erred in holding that the accused is guilty for the offences for which he stood charged and faced
trial, and convicting and sentencing him. The impugned judgment
deserves to be reversed. -:11:- In the result, the appeal is allowed. The impugned
judgment is set aside. The accused is acquitted and he shall be
set at liberty, if his presence in custody is not required for any other cases. Sd/- MARY JOSEPH JUDGE MJL