Kerala High Court
Sunil @ Tites @ Sunil Tites vs State Of Kerala on 31 July, 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
THURSDAY, THE 31ST DAY OF JULY 2025 / 9TH SRAVANA, 1947
CRL.REV.PET NO. 477 OF 2016
CRIME NO.328/2005 OF THENHIPALAM POLICE STATION, MALAPPURAM
AGAINST THE JUDGMENT DATED 17.01.2012 IN CC NO.480 OF
2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I,PARAPPANANGADI
ARISING OUT OF THE JUDGMENT DATED 30.12.2015 IN CRL.A NO.55
OF 2012 OF ADDITIONAL DISTRICT COURT - III, MANJERI
REVISION PETITIONERS/APPELLANTS/ACCUSED NOS.1 AND 2:
1 SUNIL @ TITES @ SUNIL TITES
S/O.LAWRANCE, ANAKUZHI HOUSE, PALLIKUNNU,
VELLICHI MOOLA, KANIYAMBATTA, WAYNAD DISTRICT.
2 NISHAD SO.ANDRU
POOMTHOLI HOUSE, PALLIKUNNU, KOTTATHARA AMSOM,
MAILADI, WAYANAD DISTRICT.
BY ADV SRI.K.RAKESH
RESPONDENT/RESPONDNETS/STATE:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM, KOCHI, PIN-682 031- FOR THE
SUB INSPECTOR OF POLICE STATION, THENHIPALAM
POLICE STATION, MALAPPURAM DISTRICT.
OTHER PRESENT:
SRI.SANAL.P.RAJ-PP
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 31.07.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
Crl.R.P.No.477 of 2016
2
2025:KER:57752
P.V. BALAKRISHNAN, J.
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Crl.R.P.No.477 of 2016
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Dated this the 31st day of July, 2025
ORDER
Under challenge in this revision petition is the conviction and sentence rendered against the revision petitioners under Section 394 r/w Section 34 of the Indian Penal Code,1860 (hereinafter referred to as 'IPC' for short).
2. The revision petitioners are the accused Nos.1 and 2 in CC No.480 of 2006 on the files of the Judicial First Class Magistrate Court-I, Parappanangadi. They stood trial along with another accused for committing an offence punishable under Sections 394 r/w Section 34 of IPC.
3. The case of the prosecution is that on 09.11.2005 at about 04:45 p.m., while PW1 was walking along the road inside the Calicut University campus, accused Nos.1 and 2 in furtherance of their common intention, to commit robbery came near her and the 1st accused pushed her down and snatched her gold chain with its locket, weighing seven sovereigns. It is alleged that thereafter, the accused made an escape from the scene.
4. In the trial court, from the side of the prosecution, PW1 to PW15 were examined, and Ext.P1 to P21 documents were Crl.R.P.No.477 of 2016 3 2025:KER:57752 marked. The petition filed under Section 451 Cr.P.C for the release of the gold chain was also marked as Ext.C1 by the trial court. When the accused were examined under Section 313 Cr.P.C., they denied all the incriminating circumstances appearing against them in evidence and contended that they are innocent. From the side of the accused, no evidence was adduced. The trial court, on an appreciation of the evidence on record, found accused Nos.1 and 2 guilty of the offence punishable under Section 394 r/w 34 IPC and convicted them thereunder. But it also found the 3rd accused not guilty of the offence alleged and acquitted him. The trial court sentenced accused Nos.1 and 2 to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.10,000/- each under Section 394 r/w 34 IPC, with a default clause.
5. Accused Nos.1 and 2 carried the matter in appeal by filing Crl.A.No.55 of 2012 before the Additional Sessions Court-III, Manjeri. The said court by judgment dated 30.12.2015 dismissed the appeal.
6. Heard Sri. K. Rajesh, the learned counsel appearing for the revision petitioners and Sri. Sanal P. Raj, the learned Public Prosecutor.
7. The learned counsel for the revision petitioners submitted that both the trial court and the appellate court did not Crl.R.P.No.477 of 2016 4 2025:KER:57752 appreciate the evidence in a proper perspective and has arrived at a wrong conclusion of guilt against the accused. He argued that the only evidence available to prove the occurrence is that of PW1 and her identification of the accused in dock is not believable. He also argued that the prosecution has not examined the auto- rickshaw driver, who had reached the spot immediately and who had chased the accused when they left the place and the same amounts to suppression of material evidence. He, by relying on the decision in Manoharan v. State of Kerala[2016 Supreme(Online) (KER) 14698] contended that since, no test identification parade has been conducted in this case, the identification of the accused by PW1, nearly four years after the incident, cannot be relied upon. He also, by relying on the decision in Saifudheen v. State [2011 Supreme(Online)(KER) 23147] contended that the recovery evidence has to be approached with great care and caution, and only if the same is inspiring, it can be relied upon. He would submit that in the present case, the circumstances divulged in the evidence adduced do not show that the recovery was effected in a fair and lawful manner. He also submitted that even if the entire evidence is accepted in toto, there is no evidence to rope in the 2 nd accused and the ingredients of the offence under Section 394 of IPC has not been made out in this case. He further contended that Crl.R.P.No.477 of 2016 5 2025:KER:57752 if in any case, this court finds the revision petitioners guilty of the offence alleged, a lenient view may be taken in awarding the sentence.
8. Per contra, Sri. Sanal P. Raj, the learned Public Prosecutor supported the impugned judgments and contended that there are no grounds to interfere with the same. He argued that the evidence of PW1 regarding the incident and the identification of the accused inspires confidence and nothing has been brought out in her version to disbelieve her. He further submitted that the gold chain has been recovered on the basis of the information given by the 1st accused from the jewellery in which PW8 is working and he has also identified the 1 st accused as a person who has sold the gold chain to him. He contended that PW1 has lodged the FIS and has sought medical aid for the injury sustained by her immediately after the incident and the evidence of PW12 coupled with Ext.P16 shows that even while giving a statement to the doctor at that time, PW1 has mentioned about the role of two accused in the incident and the manner in which it occurred. Hence, he submitted that this revision petition may be dismissed.
9. The materials on record show that the only evidence available in this case, to prove the occurrence is that of PW1. The evidence of PW1 clearly shows that on 09.11.2005 at about 04:45 Crl.R.P.No.477 of 2016 6 2025:KER:57752 p.m., while she was walking along with her two children through the Calicut University campus, two persons came from the opposite side and one among them pushed her down. She positively identified the 1 st accused as the person who has thus pushed her down and the 2 nd accused as the person who was along with him, in the dock. Thereafter, when she fell down, the 1 st accused snatched the gold chain worn by her weighing about 7 sovereigns and in that process, she sustained injuries on her lip and neck. Thereafter, both the accused together ran away from the place. Her evidence further shows that, even though the auto- rickshaw driver who came there attempted to follow and intercept the accused, he failed in doing so. PW1 also stated that thereafter, she had gone to the police station and has lodged Ext.P1 FIS and has sought medical aid in the hospital. It is to be seen that even though PW1 has been cross examined in extenso, nothing has been brought out to disbelieve her version and especially regarding her, identifying the accused. Her evidence clearly shows that from among the three accused who were standing in the dock, she has specifically pointed out each of them and has spoken to about their role played and the said fact, lends much credence to her evidence.
10. Moving further, the evidence of PW12 coupled with Ext.P16 wound certificate shows that he has examined PW1 at Crl.R.P.No.477 of 2016 7 2025:KER:57752 about 08:50 p.m., on 09.11.2005, who has approached him with an allegation of robbery of gold chain, by two identifiable persons at about 04:45 p.m., on the same day in the University Campus. At that time, PW12 has noted that PW1 was suffering from multiple abrasions on the right side of her neck apart from complaints of pain over neck. The afore evidence of PW12 also supports the version of PW1 that an incident as spoken to by her had occurred and that two persons were involved in it.
11. Be that as it may, the evidence of PW11 would go to show that on 14.11.2005 at about 03:40 a.m., he has arrested the 1st accused and has registered a crime under Section 41 of Cr.P.C. It also shows that thereafter, on the basis of a confession statement (Ext.P6(a)) made by the 1st accused, he had accompanied him to the jewellery in which PW8 is working and has seized the gold chain, which PW1 identified as the chain which was robbed from her possession. It is very pertinent to note that PW8, the staff in the jewellery has also positively identified the 1 st accused as the person who had approached him and sold the gold chain. Further, he also identified his signature in Ext.P6 seizure mahazar. At this juncture, it is pertinent to note that PW7, the independent witness also supported the prosecution case and stated that he was present in the jewellery at that time and has witnessed the Crl.R.P.No.477 of 2016 8 2025:KER:57752 recovery and has signed in Ext.P6. The recovery evidence and the identification of the 1st accused by PW8 lends much credence to the testimony of PW1 and shows that it is the 1 st accused who has snatched the gold chain from her.
12. Coming to the contention of the learned counsel for the revision petitioners that in the absence of a test identification parade, the identification made by PW1 after a long period is not believable, I am of the view that there is no merit in it. It is a settled law that the substantive evidence is the evidence of identification in court and test identification parade only provides corroboration to that identification. Failure to hold a test identification would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact (See Prakash v. State of Karnataka (2014)12 SCC 133). What the courts will look is as to whether the identification of the accused made by the witness in court is reliable or not. In the present case it is to be seen that PW1 had the sufficient time and opportunity to see the persons who have robbed and caused hurt to her. Further, as stated earlier, during examination, PW1 identified each of the accused, from among the three accused in the dock by specifically pointing them and by stating the role played by them and the said Crl.R.P.No.477 of 2016 9 2025:KER:57752 identification is credible and cogent. Moreover, both the trial court and the appellate court have also relied on the evidence of PW1 on this aspect and I find no reasons to differ from the said finding.
13. Coming to the contention of the revision petitioners that the offence under Section 394 of IPC is not attracted, again I am of the view that there is no merit in it. As per Section 394 IPC, if any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery is liable to be punished under Section 394 IPC. Further, Section 390 defines robbery and states that theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person, death or hurt or wrongful restraint or fear of instant death or of instant hurt, or of instant wrongful restraint. In the instant case, it has come out in the evidence of PW1 and PW12 coupled with Ext.P16, that while commiting theft, the accused have voluntarily caused hurt to PW1. If so, I find no reason to differ from the finding of the trial court and the appellate court that the revision petitioners are guilty of an offence under Section 394 IPC.
14. In the light of the afore discussions on evidence, I find Crl.R.P.No.477 of 2016 10 2025:KER:57752 that there is no illegality committed by both the trial court and the appellate court in appreciating the evidence on record and reaching the conclusion of guilt. Therefore, the challenge raised on merit fails.
15. Now the only question to be considered is the sentence. Considering the fact that the incident has taken place in the year 2005, the nature of the offence, it's gravity, the fact that both the revision petitioners were of very young age at that time and the facts and circumstances of this case, I am of the view that the sentence imposed on the revision petitioners/accused Nos.1 and 2 can be modified and reduced to one of rigorous imprisonment for a period of one year and to pay a fine of Rs.10,000/- each under Section 394 r/w Section 34 IPC. In case of default, the revision petitioners/accused Nos.1 and 2 shall undergo simple imprisonment for a period of three months.
In the result, this revision petition is allowed in part as follows;
1. The conviction of the revision petitioners/ accused Nos.1 and 2 under Section 394 r/w Section 34 IPC in CC No.480 of 2006 by the Judicial First Class Magistrate Court-I, Parappanangadi and as confirmed in Crl.Appeal No.55 of 2012 by the Additional Sessions Court-III, Manjeri, is upheld. Crl.R.P.No.477 of 2016 11
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2. The sentence imposed on the revision petitioners/accused Nos.1 and 2 is modified and reduced to one of rigorous imprisonment for a period of one year each and to pay a fine of Rs.10,000/- each under Section 394 r/w Section 34 IPC.
3. In case of default in payment of fine, the revision petitioners/accused Nos.1 and 2 shall undergo simple imprisonment for a period of three months.
4. The fine amount if realised shall be paid to PW1, as compensation under Section 357(1)(b) Cr.P.C.
Sd/-
P.V.BALAKRISHNAN JUDGE Dxy