Kerala High Court
Kumar vs State Of Kerala on 26 February, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
FRIDAY, THE 2ND DAY OF MARCH 2018 / 11TH PHALGUNA, 1939
CRL.A.No. 400 of 2004
AGAINST THE JUDGMENT IN SC 1937/2001 of ADDITIONAL DISTRICT & SESSIONS COURT FAST
TRACK (ADHOC), No.II, TRIVANDRUM DATED 26-02-2004
APPELLANT/ACCUSED:
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KUMAR, S/O.GOVINDAN,
PUTHUVAL PUTHEN VEEDU,
T.C.34/678, KANNANTHURA WARD,
KADAKAMPALLI VILLAGE.
BY ADV.SRI.BINDU SREEKUMAR
RESPONDENT/COMPLAINANT:
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STATE OF KERALA,
REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY PUBLIC PROSECUTOR, ADV.SRI.UDAYABHANU K.B
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02-03-2018, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
rk
K.P.JYOTHINDRANATH, J.
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Crl.Appeal No. 400 OF 2004
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Dated this the 02nd day of March, 2018
JUDGMENT
In this appeal, the challenge is against the judgment of conviction and sentence in S.C.No.1937/2001 on the files of Additional Sessions Judge, Fast Track (ADHOC-II), Thiruvananthapuram. The conviction is under Section 392 of IPC and the sentence imposed is to undergo rigorous imprisonment for a period of four years. The appellant was the 3rd accused in Crime No. 58/95 of Pettah Police Station. The original second accused in the crime was seen acquitted.
2. The prosecution case is that:
On 18.04.1995 at about 11.00 PM, with an intention to commit robbery by causing hurt, the accused stopped the motor bike in which PW1 and PW2 were travelling at a place called Mathilmukku and thereafter robbed a total Crl.Appeal No. 400 OF 2004 2 sum of Rs.212/- (Rupees Two Hundred and Twelve Only) by the accused and forcibly took away gold ring and a watch, worn by PW1 & 2 and thereby committed the above offence. The prosecution altogether examined eleven witnesses and Exts.P1 to P14 marked. MO1 also identified. After appreciating the evidence, the court below convicted the accused for an offence under Section 392 of IPC and sentenced as stated above.
3. When the appeal came up for hearing, the learned Counsel appearing for the appellant submitted before this Court that, mainly there are two points to be considered by this Court. One is that of identity and the second is that, there is nothing to link the accused with the alleged robbery, even if, the robbery was committed by some other person.
4. To buttress this contention, it is the submission of the learned Counsel that, there is nothing to show that there were practically any light to see and identify the accused. Crl.Appeal No. 400 OF 2004 3 It is also the submission of the learned Counsel that, even as per the case of the prosecution, the witnesses identified the accused in the light of the two wheeler in which they travelled. But, it is to be remembered that, as per the evidence now before the court, A1 was the person who stopped the vehicle. When the vehicle was stopped, then naturally there will be no light from the head light of the vehicle. When no other light was available at the place of incident, naturally the claim of the witnesses that, they identified the accused become suspicious. Coupled with these, it can be seen that, there was no prior identification parade conducted by the investigating agency. A court identification is a weak piece of evidence. Surely, there was an evidence of PW2 to the effect that he had shown the accused to the investigating officer. But, when, PW11 was examined, who was the investigating officer, he was categoric that he had not arrested A2. When there was only four accused and when A2 was not arrested as per the Crl.Appeal No. 400 OF 2004 4 evidence of PW11, prima facie the claim of the witnesses that they identified four witnesses will be a lie. Another aspect relevant to be considered is that the incident occurred on 18.04.1995 and as per the evidence of PW11, accused nos. 3 and 4 were arrested on 17.05.1997. Then, no stretch of imagination can say that there was an identification immediately after the incident, ie, within a period of ten days.
5. At this juncture, the learned Public Prosecutor submitted before this Court that the evidence of PW2 was that, it was an identification after ten days. But surely, the learned Counsel for the appellant added that, it can be even till previous day of giving of evidence. A stretch of period given without any boundaries cannot be used as a corroborative evidence to rely on the court identification.
6. The next aspect highlighted by the learned Counsel is that there was no direct recovery of MO1 from the possession of the appellant herein. As per the Crl.Appeal No. 400 OF 2004 5 prosecution case, he made a disclosure statement. In pursuance to the same, a recovery was made through PW9. At the most, what can be inferred, even if such a disclosure statement was there, is that the appellant was aware that she had pledged a gold ring in the bank. The said knowledge will not be an incriminating one as long as it was not a direct recovery from the possession of the appellant herein. Somebody might had informed the pledging of the same to the appellant herein. Surely, she denied any acquittance with the appellant herein. Nothing brought out to link PW9 with the appellant. Under such circumstances, when the evidence before the court is summed up, it can be seen that, practically no evidence adduced by the prosecution to link the appellant herein with the incident.
7. The learned Public Prosecutor submitted before this Court that here is a case where four persons joined together and stopped a two wheeler and robbed Rs.212/- from the pockets of the witnesses and further by threat, Crl.Appeal No. 400 OF 2004 6 taken away gold ring from the possession of PW1 and a watch from the possession of PW2. When at the earliest point of time, witnesses stated to the police that it was an identifiable person and when at the time of trial, he identified the person, then, there is nothing to disbelieve the court identification which is a substantial piece of evidence. The F.I. statement can be used as a corroborative piece, as evident from Section 157 of the Evidence Act. The prosecution proved the case beyond reasonable doubt is the submission of the prosecutor.
8. The evidence in this case is as follows:
PW1 was working as a Junior Executive in Matsyafed. The incident occurred on 18.04.1995, when he was travelling on his motor bike along with one Varghese, who is a friend of him, at about 10.45 hours. When they reached at Mathilmukku area, a person signalled to stop the bike and he stopped the same. Thereon he snatched the cash available in his pocket. When the appellant and the pillion Crl.Appeal No. 400 OF 2004 7 rider tried to block the same, then the four others also came near the bike. The person who blocked the bike tried to take his finger ring. He further assaulted him using a cycle chain. The ring was forcefully taken and witness deposed that Rs.152/- was stolen from his pocket. He further deposed that the name, Usha was written, the name of his wife was written on the ring. He identified A3, as the person one among the accused. He further deposed that he was not remembering whether the accused in S.C.No.412/2000 was present. PW1 and 2 had gone to the police station and gave a statement which was marked before the court as Ext.P1. He further deposed that he went to the General Hospital and got treated. At the time of cross-examination, he deposed that he had not seen the accused earlier to the incident and he had not able to depose regarding the overt act of each and every accused. He further deposed that b