Kerala High Court
Kaliyappan vs State Of Kerala on 11 August, 2006
Author: R. Basant
Bench: R.Basant
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 323 of 1999(C)
1. KALIYAPPAN
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :ADV.E.C PAULOSE
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :11/08/2006
O R D E R
R. BASANT, J.
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Crl.R.P.Nos. 323 & 325 of 1999
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Dated this the 11th day of August, 2006
ORDER
These revision petitions are directed against the concurrent verdict of guilty, conviction and sentence of the petitioners (Accused Nos. 2 and 3) in a prosecution under Sections 457 and 397 I.P.C.
2. The petitioners in both the cases are represented by counsel of their choice.
3. Altogether there were three accused persons. The first accused was one Subramoniam. The petitioners are accused Nos. 2 and 3. The crux of the allegations against the petitioners is that they, along with three others, at 3 a.m. on 29.5.1996 with the intention of committing dacoity, broke open the house, where PW2 was residing. They allegedly by the use of force took away MO1 gold ring worn by PW2. PW1, the grant daughter of PW2, was allegedly assaulted. Her gold ornament was also taken, but it was not taken away by the accused. It is alleged by the prosecution that all the three accused thereby committed the offences punishable under Sections 457 and Crl.R.P.Nos. 323 & 325 of 1999 2 397 I.P.C.
4. Though the alleged incident took place on 29.5.1996 the complaint was filed by PW2 before the police only on 5.6.1996. Ext.P1 is that complaint. On the strength of that Ext.P1(a) F.I.R. was registered on 5.6.96 and the F.I.R. reached the court on 6.6.1996. Investigation continued and it culminated with the final report submitted by PW7.
5. Cognizance was taken by the learned Magistrate. The case was committed to the Asst. Sessions Judge, Kattappana. Consequent to the plea of not guilty raised by the accused, the prosecution examined PWs. 1 to 7 and proved Exts.P1 to P3.
6. PW2 is the victim and PW1 is her grand daughter. PW3, a witness cited by the prosecution, was given up by the prosecution. For obscure reasons, he is given a rank in the array of the prosecution witnesses. According to the prosecution, the third accused was arrested and PW6, the Investigating Officer, got him into custody for the investigation of this case. He allegedly gave a confession statement, in which he furnished information to the Investigating Officer about the concealment of ear ring thieved from the possession of PW2. On the basis of the said confession Crl.R.P.Nos. 323 & 325 of 1999 3 statement and as led by the third accused, PW6 recovered MO1 under Ext.P2 on 25.6.1996. PW4 is an attester to the recovery mahazar, Ext.P2. PW5 is the goldsmith, who had weighed MO1 and is also an attester to Ext.P2 recovery mahazar. Ext.P3 scene mahazar was prepared by PW5. MO1, as stated earlier, is the thieved gold ear ring recovered under Ext.P2 and MO2 is the cover in which MO1 was concealed at the place from which recovery was effected under Ext.P2.
7. All the three accused took up a defence of total denial. No defence evidence was adduced. The courts below concurrently came to the conclusion that the prosecution has succeeded in establishing all ingredients of the offences punishable under Sections 457 and 397 I.P.C.
8. Accused 2 and 3 are undergoing imprisonment. The first accused, who was also convicted by the courts below, had already preferred a revision before this Court and it is seen that the said revision petition, numbered as Crl.R.P.No. 328 of 1999, alone was taken up and disposed of by another Bench of this Court. As per order dt. 30.10.2001, the learned Judge in that case found that the first accused was entitled for an acquittal. There are observations in that order passed by the learned Judge that it is Crl.R.P.Nos. 323 & 325 of 1999 4 not safe to accept the oral evidence of PWs. 1 and 2. There is also an observation that the offence punishable under Section 457 I.P.C. is not established also.
9. Be that as it may, the learned counsel for the petitioners has advanced detailed arguments. The learned counsel for the petitioners submits that the oral evidence of PWs. 1 and 2 deserves to be discarded. One Bench has already taken that view on the same evidence. At any rate, no reliance can be placed on the oral evidence of PWs. 1 and 2 now. She further contends that so far as the third accused is concerned, the evidence of recovery also deserves to be rejected. At any rate, the counsel contends that the vital ingredients of Sections 457 and 397 I.P.C. have not been established. In these circumstances, the counsel prays that the petitioners may also be conceded the benefit of doubt and acquitted of all the charges levelled against them.
10. I have considered all the submissions made. It is of course true that the disposal of a revision petition by another Bench earlier in so far as it relates to the first accused will not bind this court. But certainly the approach made by the court and the fact that one of the accused has been Crl.R.P.Nos. 323 & 325 of 1999 5 conceded the benefit of doubt on the basis of the very same evidence will and must weigh with this court while considering the challenge raised in this case.
11. The prosecution relies on the oral evidence of PWs. 1 and 2. In so far as their evidence shows that a theft had taken place in the house, I find absolutely no reason to reject their evidence. The fact that PWs. 1 and 2 were not able to specifically identify the accused persons, the fact that there is incongruity in their evidence about the precise acts of accused Nos. 1, 2 and 3, the fact that the F.I. statement was lodged belatedly and the fact that T.I. parade has not been conducted by the Investigator are not, according to me, sufficient to discard the evidence of PWs. 1 and 2 in so far as they speak about the incident of theft which took place in their house. I am absolutely satisfied that the oral evidence of PWs. 1 and 2 can safely be believed when it is alleged that some miscreants had trespassed into their house and that they had taken away the gold ear ring worn by PW2.
12. The delay in the lodging of Ext.P1 F.I. statement cannot arouse a semblance of dissatisfaction in the mind of the court about the core of Crl.R.P.Nos. 323 & 325 of 1999 6 evidence of PWs. 1 and 2 that a theft had taken place in their house. I am unable to accept the strenuous contention raised by the learned counsel for the petitioners that the evidence of PWs. 1 and 2 deserves to be discarded lock, stock and barrel on the basis of the discrepancies which have already been noted above. I concur with the conclusion that PWs. 1 and 2 can be believed in so far as the fact of theft on 29.5.1996 is concerned.
13. The next question to be ascertained is whether MO1 ear ring had been stolen from the possession of PW2 in that incident. The counsel points out that even in Ext.P1 F.I. statement the details of the thieved ornament has not been specified. I have gone through the evidence of PW2. There is absolutely no reason for which a court can disbelieve PW2 when she asserted that MO1 is the ornament thieved from her possession. The cross examination of PW2 does not at all give any room for any doubt to disbelieve or discard her testimony in so far as her identification of MO1 as the article thieved from her possession is concerned. That means that it can safely be believed that a theft had taken place and MO1 had been taken from the possession of PW2.
Crl.R.P.Nos. 323 & 325 of 1999 7
14. The learned counsel for the petitioners contends that at any rate the identification of accused Nos. 2 and 3/petitioners herein by PWs. 1 and 2 should not be accepted. Insufficiency of light, absence of a T.I. parade and absence of any other material to offer inspiration for the evidence of PWs. 1 and 2 are the circumstances relied on. So far as the second accused is concerned, there is no material other than the evidence of identification of PWs. 1 and 2 to point to his complicity. Another Bench of this Court having already taken the view that the identification of the accused by PWs. 1 and 2 at the time of occurrence of the miscreants cannot be accepted, I am of the view that the same conclusion can safely be reached in this case also. The evidence of PWs. 1 and 2 will not be relied on by this court as sufficient to fix the identity of the miscreants. The second accused, against whom there is no other evidence whatsoever must, in these circumstances, succeed in his claim for acquittal on both counts. Though reluctantly I am of the opinion that the court is bound to concede the benefit of doubt to the second accused on this score, the same having already been conceded to the first accused.
15. We have the evidence of PW6, who recorded the confession Crl.R.P.Nos. 323 & 325 of 1999 8 statement of the third accused, which is extracted specifically in Ext.P2 seizure mahazar. PW6 has tendered primary direct evidence of such confession made by the third accused. We have the evidence of PW6 that on the basis of the said confession and as led by the third accused, he reached the place described in Ext.P2 where under a `manthitta' in a hole (allu) MO1 covered by MO2 was available and the same was seized as pointed out by the accused under Ext.P2 seizure mahazar. I have gone through the cross examination of PW6. I find absolutely no reason for a prudent mind to entertain any doubt on the acceptability of the evidence of PW6. Of course, it is true that the courts have often viewed the evidence of recovery under Section 27 of the Evidence Act with caution and reservation. Even the fact that the provisions of Section 27 of the Evidence Act have in several cases been misutilised by the police is no reason for a court to adopt an inflexible and rigid attitude suspecting all recoveries effected under Section 27 of the Act. The facts in each case will have to be subjected to careful scrutiny. Care and caution there must be, but certainly inflexible and rigid prejudice, doubt and suspicion against the evidence sought to be introduced in Section 27 of the Act, will not be Crl.R.P.Nos. 323 & 325 of 1999 9 justified.
16. In this view of the matter, I take note of the evidence of PW6. There is not a semblance of a suggestion that PW6 had spoken falsehood against the third accused. We have the evidence of PWs. 4 and 5 that they had attested Ext.P2 recovery mahazar. The contents of the contemporaneous Ext.P2 seizure mahazar goes miles to assure the court of the acceptability of the evidence of PW6 about the confession and recovery. It is of course true that when PW5 was examined, he stated that "the accused Subramoniam had taken out MO1 in MO2 packet and given it to PW6". The counsel submits that the prosecution evidence as to who had pointed out the article cannot be accepted in view of this discrepancy. I must express my dissatisfaction against the manner in which the evidence has been recorded. When PW5 was examined, it was incumbent on the Prosecutor and the Court to get him to identify the accused and state specifically as to which accused he was referring to. The Prosecutor has not done the same. The court has not done the same. Therefore such a contention appears to be available to the petitioner/third accused. But this discrepancy, according to me, is not serious as the contents of Ext.P2, the Crl.R.P.Nos. 323 & 325 of 1999 10 evidence of PW5 and the evidence of PW6 do all clearly and unmistakably reveal that it was not the first accused, Subramoniam, but the third accused Selvaraj, who had made the confession and led PW6 to the scene of recovery. This non-specific recording of the name of the accused in the deposition of PW5 cannot deliver any advantage or benefit to the third accused.
17. It hence follows that there is satisfactory evidence to show that recovery of MO1 stolen from the possession of PW2 was recovered on the basis of information furnished by the third accused. The recovery was effected on 25.6.96, whereas the theft had taken place on 29.5.1996. The accused had no explanation to offer as to how he came to know of the availability of MO1 concealed at the place of recovery. The inevitable conclusion is that he was responsible for the theft.
18. The counsel for the petitioners contends that the place of recovery is an open place and therefore the recovery cannot be attributed to the information given by the petitioner. I am unable to accept this argument. The oral evidence of witnesses as also the contents of Ext.P2 reveal that though MO1 covered by MO2 was available by the side of a Crl.R.P.Nos. 323 & 325 of 1999 11 public road, it was kept concealed and could not have been seen by any one before the accused pointed out that concealed article. The concealment of an article in a public place and recovery from the place of such concealment on the basis of information given by the accused will not militate against the admissibility or the efficacy of such recovery. The fact of concealment is established. Recovery from the place of concealment was possible only when it was pointed out by the accused from the hole in the `Manthitta ' where it was kept concealed. The challenge raised on this ground must also hence fail.
19. The learned counsel for the petitioners then contends that at any rate the ingredients of offence under Section 457 I.P.C. have not been established. There is nothing to show that access to the house was obtained by house breaking. The materials to satisfy the offence of house breaking defined under Section 445 are not available, contends the counsel. I am satisfied that the benefit of doubt can be conceded to the accused on this aspect. I hold that the conviction can properly and safely be entered against the accused only under Section 451 I.P.C. The counsel then Crl.R.P.Nos. 323 & 325 of 1999 12 contends that at any rate ingredients of the offence under Section 397 I.P.C. have not been established. The counsel points out that though there is a sweeping assertion that force was used to take away the thieved property, there is absolutely no circumstances to satisfactorily establish such use of force. PWs. 1 and 2 are not shown to have suffered any injury. The weapons which were allegedly used for the infliction of violence have not been seized. PWs. 1 and 2 did not go to any Medical Officer also in spite of the alleged suffering of hurt. On this aspect also I am satisfied that the benefit of doubt to the extent possible can be conceded to the petitioner/A3. Certainly the ingredients unmistakably establish commission of the offence punishable under Section 380 I.P.C.
20. The learned counsel then submits that leniency may be shown to the third accused. Accused Nos. 1 and 2 have been acquitted. But that is no reason to show any misplaced sympathy for the third accused, who is proved to have committed the offence. The nature of the offence committed is also such that this court will not be justified in showing any undeserved leniency or indulgence to the offender, who is proved to have committed the offence.
Crl.R.P.Nos. 323 & 325 of 1999 13
21. Having considered all the relevant inputs, I am satisfied that for the offences punishable under Sections 457 and 380 I.P.C. the third accused/petitioner deserves to be sentenced to undergo R.I. for a period of 3 years and 2 years respectively. The challenge raised in this revision petition can succeed only to the above extent.
22. In the result:
(a) Crl.R.P.No. 323 of 1999 is allowed and the petitioner/second accused is found to be entitled to the benefit of doubt and is consequently found not guilty and acquitted of all the charges leveled against him. He shall be released forthwith from custody, if his further detention is not necessary in connection with any other case.
(b) Crl.R.P. No. 325 of 1999 is allowed in part. The verdict of guilty is upheld, but the conviction is reduced to Sections 451 and 380 I.P.C. The accused is sentenced to undergo R.I. for a period of two years under Section 451 I.P.C. and for R.I. for a period of three years under Section 380 I.P.C.
The sentences shall run concurrently. The learned Magistrate shall grant to the petitioner set of which he is entitled to under law. Crl.R.P.Nos. 323 & 325 of 1999 14 Communicate the order to the court below forthwith. The court below shall take necessary steps to execute the modified sentence hereby imposed.
(R. BASANT) Judge tm Crl.R.P.Nos. 323 & 325 of 1999 15 R. BASANT, J.
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O R D E R 11th August, 2006 Crl.R.P.Nos. 323 & 325 of 1999 16