Kerala High Court
O.K. Babu @ Balakrishnan vs The Inspector Of Police on 24 February, 2025
2025:KER:15266
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 24TH DAY OF FEBRUARY 2025 / 5TH PHALGUNA, 1946
CRL.A NO. 144 OF 2019
CRIME NO.11/1988 OF VELLAMUNDA POLICE STATION
AGAINST THE JUDGMENT DATED 21.08.2018 IN SC NO.153 OF
2017 ON THE FILE OF THE COURT OF SESSION, WAYANAD, ARISING
OUT OF THE ORDER IN CP NO.7 OF 1988 OF JUDICIAL MAGISTRATE
OF FIRST CLASS, MANANTHAVADY
APPELLANT/ACCUSED:
O.K. BABU @ BALAKRISHNAN,
AGED 54 YEARS
S/O AMBADI @ SUBHASH, OTTARAKAN VALAPPIL,
RAVANESHWARAM, KANHANGAD.
BY ADV SUNNY MATHEW
RESPONDENTS/COMPLAINANT AND STATE:
1 THE INSPECTOR OF POLICE,
CBCID, WAYANAD, WAYANAD DISTRICT - 673121
2 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682031
SRI.VIPIN NARAYAN, PP
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
17.02.2025, THE COURT ON 24.02.2025 DELIVERED THE FOLLOWING:
2025:KER:15266
CRL.A NO. 144 OF 2019
2
C.S.SUDHA, J.
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Criminal Appeal No.144 of 2019
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Dated this the 24th day of February 2025
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the appellant, the sole accused in S.C. No.153/2017 on the file of the Court of Session, Wayanad, challenges the conviction entered and sentence passed against him for the offences punishable under Sections 457, 380, 395 and 461 IPC.
2. As per the final report, the prosecution case is that on 08/02/1988 at 03:30 a.m., the accused persons, six in number, including the accused herein, broke into the Nallurnad Service Co- operative Bank and committed theft of the iron safe containing gold ornaments, currency notes, and other valuable securities from the bank. They attempted to cause the death of PW4 while carrying away the safe. Thereafter, they broke open the iron safe and took 2025:KER:15266 CRL.A NO. 144 OF 2019 3 away the gold ornaments and the other valuables kept therein. Hence, the accused persons, as per the final report, were alleged to have committed the offences punishable under Sections 457, 380, 395, 397 and 461 IPC.
3. Crime No.11/1988, Vellamunda police station, that is, Ext.P1(a) FIR, was registered by PW34, Circle Inspector, Mananthavady, on the basis of Ext.P1 FIS given by PW1. The investigation was conducted by PW34 as well as PW35, Detective Inspector, Crime Branch CID, Wayanad. On completion of the investigation, the final report was submitted by PW36, Detective Inspector, Crime Branch CID, Kozhikode, alleging the commission of the offences punishable under the aforementioned sections.
4. On appearance of all the accused persons, the jurisdictional magistrate after complying with all the necessary formalities contemplated under Section 209 Cr.P.C., committed the case to the Court of Session, Wayanad, which court took the case on filed as S.C. No.29/1988. A charge under Sections 457, 380, 2025:KER:15266 CRL.A NO. 144 OF 2019 4 395, 397 and 461 read with Section 34 IPC was framed, read over and explained to the accused persons to which they pleaded not guilty. Thereafter, the 2nd accused and the accused/appellant herein, who was arrayed as the 3rd accused in the final report, absconded and the case against them was split up and refiled as S.C. No.23/1992 and the case was transferred to the register of long pending cases as L.P. No.4/1995. In S.C. No.29/1988, the Sessions Court, Wayanad found A1 and A4 to A6 guilty of the offences alleged against them and sentenced them accordingly. The said accused persons preferred appeals, that is, Crl.A. Nos.216 and 239 of 1994 before this Court and by judgments dated 28/03/2003, the conviction of A1 (Subair) and A5 (K.V.Ali kutty) was confirmed. A4 (K.Suresh Babu) died and hence the appeal filed by him abated. The appellant/accused herein who was arrayed as the 3rd accused in the final report surrendered before the trial court on 16/05/2017. The case was renumbered as S.C. No.153/2017 and thereafter the case was made over to the Additional Sessions Judge-II, Kalpetta, 2025:KER:15266 CRL.A NO. 144 OF 2019 5 Wayanad, for trial and disposal.
5. On behalf of the prosecution, PWs.1 to 36 were examined and Exts.P1 to P263 and MOs 1 to 111 were marked in support of the case. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence.
6. As the trial court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on his defence and adduce evidence in support thereof. No oral or documentary evidence was adduced by the accused.
7. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment acquitted the appellant/accused under Section 235(1) Cr.P.C. of the offence under Section 397 IPC. However, he has been found guilty of the offences punishable under Sections 2025:KER:15266 CRL.A NO. 144 OF 2019 6 457, 380, 395 and 461 IPC. Hence, he has been sentenced to rigorous imprisonment for a period of 5 years and to a fine of ₹10,000/- and in default of payment of fine to rigorous imprisonment for one month for the offence punishable under Section 457 IPC; to rigorous imprisonment for a period of 3 years and to a fine of ₹10,000/- and in default of payment of fine to rigorous imprisonment for one month for the offence punishable under Section 380 IPC; to rigorous imprisonment for a period of 7 years and to a fine of ₹10,000/- and in default of payment of fine to rigorous imprisonment for one month for the offence punishable under Section 395 IPC and to rigorous imprisonment for a period of one year for the offence punishable under Section 461 IPC. The substantive sentences have been directed to run concurrently. Set off under Section 428 Cr.P.C. has been allowed. Aggrieved, the accused has come up in appeal.
8. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the 2025:KER:15266 CRL.A NO. 144 OF 2019 7 accused/appellant by the trial court are sustainable or not.
9. As per the letter dated 25/01/2025, the Superintendent, Central Prison & Correctional Home, Kannur, has reported that pursuant to the conviction, the appellant/accused was admitted in the prison on 26/08/2018 and thereafter released prematurely on 26/01/2021. As per records, he had undergone 4 years 9 months and 9 days of actual imprisonment including the period of set off which was granted. However, as the appeal requires to be heard on merits, both sides were heard.
10. I make a brief reference to the evidence relied on by the prosecution in support of the case. PW1, the then Secretary, Nallurnad Service Co-operative Bank, deposed that on 08/02/1988 at 04:30 a.m., one Chacko, Deposit Collection Agent of the bank, and another person came to his house and informed that some people had broken into the bank. The robbers trespassed into the bank and took away the safe in a white ambassador car. He was also informed that when PW4 and his peon who were residing near the 2025:KER:15266 CRL.A NO. 144 OF 2019 8 bank went to the place on hearing the noise, the robbers tried to beat them with an iron rod and thereafter the robbers escaped in a white ambassador car. PW1 immediately went to the house of Muhammed, the then President of the bank, to inform him of the theft. Both of them went to the bank and then they found the door of the bank open. They could not see the safe inside the bank. According to PW1, one of the keys of the bank was kept by him and the other one was with PW3, the Accountant of the bank. The safe of the bank could be opened only with these two keys. On Saturday evening at 03:00 p.m, after verifying the accounts, he had closed the safe and the bank. More than ₹5,000/- was there in the safe in addition to the gold ornaments which had been pledged by the customers as well as other valuable securities and documents. On the date of the incident, there was no watchman on duty at the bank. He informed the police and gave Ext.P1 FIS to the police. He had identified the stolen gold ornaments before the court in S.C. No.29/1988. The gold ornaments which were seized by the police 2025:KER:15266 CRL.A NO. 144 OF 2019 9 and produced before the court were taken back by PW2, the Secretary of the bank who succeeded him.
10.1. PW2 when examined deposed that the stolen gold ornaments recovered from the accused persons were produced before the court by the police and the same were marked as material objects during the trial of the other accused persons in S.C. No.29/1988. After the disposal of the case, he had filed Crl.M.P. No.590/2003 seeking return of the items. The petition was allowed pursuant to which he got back the ornaments from the court in his capacity as Secretary of the bank. The gold ornaments taken back from the court were returned to the customers concerned. He admitted that some of the gold ornaments belonging to the customers who had passed away or left the place and had not taken back the ornaments were still in the custody of the bank as they had not been claimed by the heirs of the customers. The said gold ornaments were produced before the court and marked as MO11 to MO14. According to PW2, MO11 to MO14 are the gold ornaments 2025:KER:15266 CRL.A NO. 144 OF 2019 10 among the 88 items of gold ornaments which he had taken back from the court. When the gold ornaments were released to him as per Ext.P183 order, in compliance with the order of the court, he submitted Ext.P181 series inventory of the gold ornaments which contained the description of all the 88 items of gold ornaments, their weight, the name of the customers, the gold loan numbers of each item of gold ornaments.
10.2. PW3, Accountant cum Appraiser of the bank, deposed that on 06/02/1988 after keeping the cash and the pledged gold ornaments in the safe, he had closed the bank. One of the keys of the safe and that of the bank were kept by him and the other ones were with the Secretary of the bank. On receipt of information regarding the theft, he had gone to the bank and then he did not see the safe inside the bank. According to PW3, more than 750 grams of gold ornaments and cash of about ₹5,000/- were there in the safe. He identified MO1 as the safe of the bank. He identified the small bags in which the gold ornaments had been kept, which were 2025:KER:15266 CRL.A NO. 144 OF 2019 11 marked as MO15 to MO102.
10.3. In order to prove that 88 items of gold ornaments had been pledged in the bank during the relevant period, the prosecution relies on the testimony of PW14 to PW24, the customers who had pledged the same. They supported the prosecution case. The testimony of PW1 to PW3 and PW14 to PW24 would show that there was a cash balance of ₹5,544.35/- and 88 items of gold ornaments which were kept inside MO1 safe before the theft took place. Exts.P2 to P180 corroborate the testimony of the said witnesses.
10.4. PW10, Director of the bank, deposed that he was present in the bank when the police had seized the registers showing the details of the bonds, the pledging of the gold ornaments as per Ext.P185 mahazar and that he is an attester to the same. Ext.P186 mahazar was prepared by the police when the cash book and coin war register were seized.
10.5. PW25 to PW27 are the attesting witnesses to Exts.P189 2025:KER:15266 CRL.A NO. 144 OF 2019 12 to P191 mahazars which were prepared by the police when the gold loan cards of the customers were seized.
10.6. To prove the incident of theft, the prosecution relies on the testimony of PW4 and PW5. PW4, Inspector of Weights and Measures, Dwaraka, was an eye witness to the incident. He deposed that he was residing in a room behind the Office of Weights and Measures, which was adjacent to Nallurnad Service Co-operative bank. He was residing in the said building with his office peon, namely, CW3 Prabhakaran. On 08/02/1988 at 03:30 a.m., he heard a loud sound from the bank. He along with CW3 went to the road side and then they saw some people trying to load a shelf into a car bearing registration no.KLB 3342. He was able to see the persons in the street light and the electric light in the bank. One of the said persons who was standing near the car tried to beat and kill him with an iron rod. In his attempt to escape the attack, he fell down and sustained injuries on his hand. The testimony of PW4 that he had sustained injuries is corroborated by the testimony of PW31, 2025:KER:15266 CRL.A NO. 144 OF 2019 13 Assistant Surgeon, District Hospital, Mananthavady, who deposed that on 10/02/1988 at 12:30 p.m., he had examined PW4 and on examination he had seen injuries on the left elbow, right forearm and left little finger of PW4. The wound certificate issued by PW31 has been marked as Ext.P256. PW4 further deposed that the robbers drove away in the car with the shelf taken from the bank. When he looked inside the bank from outside, he could see that the doors of the bank had been broken open. He went to the house of PW1, the Secretary of the bank and informed him of the incident. PW4 identified the accused herein as one of the robbers involved in the incident. However, in the cross-examination, he deposed that he was not completely sure whether the accused was one among the robbers he had seen on the said day.
10.7. PW5, another eye witness who was conducting a tea shop at Dwaraka and was residing at the first floor of a shop room with CW6 Devasia and CW7 Vijayan, deposed that on the date of the incident, he heard CW3 Prabhakaran crying that he was being 2025:KER:15266 CRL.A NO. 144 OF 2019 14 killed. Hearing the cries he went outside. He saw a white ambassador car bearing registration no.3342 proceeding towards Panamaram side with a shelf kept inside the car. There were 5 to 6 persons inside the car. He went towards Panamaram side, he saw a jeep coming from the said side. He informed the persons in the jeep about the bank robbery and got into the jeep. All of them proceeded towards Kambalakkad side. However, they were not able to trace the car and hence they informed the police.
10.8. PW34, Circle Inspector, Mananthavady, deposed that on the date of the incident at 02:00 p.m., he had arrived at the scene of occurrence and prepared Ext.P258 scene mahazar which would show the indications that the bank building had been broken open and that theft had taken place. PW34 also deposed that based on the information received that a safe was found abandoned by the side of the road at Nellimukku, he proceeded to the said place where he reached by about 06:30 p.m. He found MO1 safe, MO2 series drawers, MO3 a broken hand, MO4 pass book, MO5 cheque book, 2025:KER:15266 CRL.A NO. 144 OF 2019 15 MO7 bunch of keys, MO8 series liver box, MO104 pickaxe, MO106 hammer, MO103 crow bar, MO109 series two iron rods and MO110 chisel at the said place which he seized as per Ext.P184 mahazar. PW6, an attester to the said mahazar, supports the prosecution case.
10.9. As noticed earlier, testimony of PW14 to PW24 establishes the case that they had pledged gold ornaments in the bank. The testimony of PW4 and PW5 would show that MO1 safe which contained valuables kept inside the bank had been stolen on 08/02/1988 and that the safe was carried away in an ambassador car bearing registration no.KLB 3342 by breaking open the bank building at night and that there were six persons involved in the robbery. As pointed out by the trial court, though the said witnesses were extensively cross-examined by the defence counsel, nothing was brought out to discredit their testimony regarding the commission of robbery in the bank. However, the testimony of PW4 and PW5 does not satisfactorily establish the identity of the 2025:KER:15266 CRL.A NO. 144 OF 2019 16 accused involved in this case.
10.10. Now coming to the testimony of the other prosecution witnesses examined in this case. PW7 deposed that in the year 1988 while he was returning in a jeep after the festival in the church with others, PW8 and PW9 along with three others signalled to stop the jeep at 4th mile, Dwaraka, at about 03:30 a.m. PW7 and others were informed about the incident. So they tried to trace out the ambassador car. They failed to do so and hence they reported the matter to the police. However, when they were returning from the police station, they saw the ambassador car proceeding towards Kozhikode side. They followed the car and when they reached near the police station in Vythiri, they found that the ambassador car had been blocked by the police. He saw about 5 to 6 persons inside the car. He also saw gold and cash kept inside the car. But PW7 deposed that as the incident took place about 30 years back, he cannot say for sure whether the accused/appellant in this case was one among the robbers present inside the car.
2025:KER:15266 CRL.A NO. 144 OF 2019 17 10.11. PW8 and PW9, the other passengers in the jeep along with PW7, also support the case of PW7. But they were also not sure about the identity of the accused.
10.12. PW28, a police official attached to Kambalakkad police station, deposed that on 08/02/1988, he received information at about 04:45 a.m. that a robbery had taken place in the bank and that the robbers with the stolen safe had escaped in a white ambassador car bearing registration no.KLB 3342 and were proceeding towards the Kambalakkad side. He immediately informed the matter to the police station at Vythiri.
10.13. PW29, the Head Constable, Vythiri, deposed that as soon as he received information about the theft, he informed the same to the Circle Inspector over phone and thereafter the Circle Inspector along with his team blocked the road with a wooden log. At about 05:30 a.m., the ambassador car coming from Kalpetta reached the spot. The car was intercepted and searched. There were six persons inside the car. When they lifted the seat of the car, they 2025:KER:15266 CRL.A NO. 144 OF 2019 18 found gold ornaments and coins kept in small bags wrapped in a lungi. To ascertain whether the ornaments were gold, a goldsmith was brought to the spot and on examination, the ornaments were found to be gold. The Circle Inspector seized the gold and other valuable articles and the car as per a seizure mahazar. PW29 identified the accused/appellant as one among the six persons who were found in the car.
10.14. PW30, Sub Inspector, Vythiri, and PW32, Circle Inspector, Vythiri, support the case deposed by PW29.
10.15. PW11 is the goldsmith who had examined the 88 items of gold ornaments that have been stolen by the accused persons which were thereafter seized by the police. He deposed that on examination he found that the ornaments were gold ornaments. PW34 and PW35 are the investigating officers in this case.
11. Now coming to the question whether the prosecution has succeeded in establishing the identity of the accused/appellant in this case. As noticed earlier, PWs 4, 5, 7, 8 and 9 were unable to 2025:KER:15266 CRL.A NO. 144 OF 2019 19 identify and say for sure that the accused/appellant in this case was one among the six persons found in the car on the said day. However, the trial court found that there was circumstantial evidence to connect the accused with the crime. The accused/appellant herein along with the other accused were taken into custody on 08/02/1988 at 05:30 a.m. by PW32 and thereafter arrested by PW34. PW32 had intercepted the accused on the basis of the information received from Kambalakkad police station. The testimony of PW29 and PW30 would show that six persons found in the car with the gold ornaments and other valuables inside the car were taken into custody on 08/02/1988 at 05:30 a.m. PW29 identified the accused as one among the persons found in the car. PW30 deposed that there were six persons including the driver inside the car and that the accused in this case was one among the six persons found in the car. Therefore, there is identification of the accused by PW29 and PW30. As rightly pointed out by the trial court, the accused persons including the accused herein were caught 2025:KER:15266 CRL.A NO. 144 OF 2019 20 red handed within hours of the incident with the stolen articles. No explanation is forthcoming from the accused regarding the possession of cash and gold ornaments of the bank. When the accused was questioned under Section 313 Cr.P.C., he did not furnish any explanation for the possession of the stolen articles immediately after the theft. Though the witnesses were extensively cross-examined, nothing was brought out to discredit their testimony. Therefore, the trial court was right in holding that the materials on record establish the offences charged against the accused person. Therefore I do not find any infirmity in the findings of the trial court calling for an interference by this Court. Thus the appeal sans merit is dismissed.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA JUDGE NP