Ratheesh S/O Narayanan vs State Of Kerala
2021 Latest Caselaw 21586 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
                CRL.REV.PET NO. 1585 OF 2005
    AGAINST THE JUDGMENT IN CRA 474/2004 OF V ADDITIONAL
                 SESSIONS COURT, ERNAKULAM
      CC 262/1999 OF CHIEF JUDL.MAGISTRATE, ERNAKULAM
REVISION PETITIONER/APPELLANT/ACCUSED:

           RATHEESH S/O NARAYANAN
           KURASSERYPARAMBIL HOUSE, VALIYAKULAM ROAD,, PAMBAIMOOLA
           BHAGOM, EDAKOCHI.
           BY ADVS.
           SRI.RAJIV NAMBISAN
           SMT.AJI S.MENON


RESPONDENT/RESPONDENT/COMPLAINANT:

           STATE OF KERALA
           REPRESENTED BY PUBLIC PROSECUTOR,
           HIGH COURT OF KERALA.
           BY ADV PUBLIC PROSECUTOR SRI.SANAL P.RAJ

     THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 02.11.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 Crl.R.P.No.1585/2005

                                -:2:-




                              O R D E R

Dated this the 2nd day of November, 2021

This revision petition has been filed against the

judgment in Crl.Appeal No.474/2004 dated 31 st January, 2005 on

the file of the Vth Additional Sessions Court, Ernakulam (for short,

'the appellate court') confirming the judgment in CC No.262/1999

dated 30th April, 2004 on the file of the Chief Judicial Magistrate

Court, Ernakulam (for short, 'the trial court').

2. The accused is the revision petitioner. He faced

trial for an offence punishable u/s 394 of IPC.

3. The prosecution case in short is that on

27/7/1997, at about 7.00 p.m, when PW1 was sitting in the

Subhash Bose Park at Ernakulam, the accused went near to him

and after talking for some time, he got acquainted with PW1 and

when the power went off, the accused fisted on the chest of PW1

and snatched the gold chain with 'elas' worn by him and Crl.R.P.No.1585/2005

thereafter he pushed down PW1 into the nearby pond. On hearing

the sound, PW2 who was in the park reached the spot.

Thereafter, PW1 and PW2 went to the Central Police station and

preferred the complaint.

4. The accused appeared at the court below. After

hearing both sides, charge u/s 394 of IPC was framed against the

accused. The charge was read over and explained to the accused

who pleaded not guilty.

5. The prosecution examined PWs 1 to 5 and

marked Exts.P1 to P6. MO1 was identified. After the completion of

the prosecution evidence, the accused was questioned u/s 313 of

Cr.P.C. He denied all the incriminating circumstances brought

against him in evidence. No defence evidence was adduced.

Considering the evidence on record, the trial court found the

accused guilty u/s 394 of IPC and he was convicted for the said

offence. The accused was sentenced to undergo simple

imprisonment for three years and to pay a fine of `1,000/-, in

default to suffer simple imprisonment for a period of two months.

In appeal, the appellate court confirmed the conviction and Crl.R.P.No.1585/2005

sentence passed by the trial court. The revision petitioner

challenges the conviction and sentence passed by both the

courts below in this revision.

6. I have heard Sri.Rajiv Nambisan, the learned

counsel for the revision petitioner and Sri.Sanal P. Raj, the

learned Public Prosecutor.

7. The learned counsel for the revision petitioner

impeached the finding of the courts below on appreciation of

evidence and the resultant finding as to the guilt. The learned

counsel submitted that there was no proper identification of the

accused or the property. Counsel further argued that the arrest of

the accused was not proved. The learned counsel also submitted

that the evidence of the occurrence witness are full of

contradictions and omissions. The learned Public Prosecutor on

the other hand supported the findings and verdict handed down

by the court below and argued that necessary ingredients of

S.394 of IPC had been established and the prosecution has

succeeded in proving the case beyond reasonable doubt.

8. The prosecution mainly relied on the evidence Crl.R.P.No.1585/2005

of PWs 1 and 2 and recovery of MO1 gold chain consequent to

the confession statement of the accused u/s 27 of the Evidence

Act to prove the incident and to fix the culpability on the accused.

9. PW1 is the defacto complainant. He gave

evidence that when he was sitting at the Subash Park on

27/7/1998 at 6.30 p.m, the accused came there and sat near to

him. Thereafter they had a chat and both of them got acquainted

with each other. He further deposed that at 7.00 p.m, when there

was a power cut, the accused fisted on his chest and snatched

the gold chain worn by him. He added that thereafter the

accused pushed him to the nearby pond and ran away from the

scene of occurrence. PW2 is an occurrence witness. He gave

evidence that he was in the park at about 6.30 p.m. He saw the

accused and PW1 engaged in conversation. He further deposed

that, after some time, at the time of power cut, he heard the

sound of something falling into the nearby pond and saw the

person who was sitting nearby PW1 running away. He then went

to the pond and rescued PW1. He further deposed that PW1 told

him that the accused snatched away his gold chain and pushed Crl.R.P.No.1585/2005

him into the pond. The evidence of PW1 and PW2 would show

that both of them thereafter went to the police station and gave

Ext.P1 FI statement.

10. Both PW1 and PW2 were cross-examined in

length by the learned counsel for the accused. But nothing

tangible has been extracted from their evidence to create any

shadow of doubt that they are not truthful witnesses. PW1 clearly

deposed about the manner in which the accused attacked him

and robbed his gold chain. PW2 also witnessed the accused and

PW1 talking to each other prior to the incident and thereafter at

the time of power cut, accused running away and PW1 was found

in the nearby pond. Both PW1 and PW2 gave reliable, consistent

and credible version of the crime and their evidence inspires

confidence. The learned counsel for the revision petitioner

submitted that there was no proper identification of the accused

as well as the property. The submission of the learned counsel is

that the investigation agency could have conducted test

identification parade. In support of his argument, learned counsel

relied on the decision of the Apex Court in Kunjumon @ Unni v. Crl.R.P.No.1585/2005

State of Kerala [2013 AIAR (Criminal) 211]. It was held that the

test identification parade is a rule of prudence which is required

to be followed in cases where the accused is not known to the

witness or to the complainant. But in the very same decision, it

was held that failure to hold a test identification parade is not

fatal to the case of the prosecution. The question is whether

there was proper identification by the accused at the court. I find

from the evidence given by PW1 as well as PW2 that both of

them clearly identified the accused at the court. I am of the view

that the said identification is sufficient. In so far as the

identification of the property is concerned, the learned counsel

for the revision petitioner submitted that MO1 gold chain was

shown to PW1 at the police station after it was recovered and

thereafter he identified the same at the court. The learned

counsel relied on a decision of the Apex Court in Vijay Kumar v.

State of Rajasthan [2014 AIAR (Criminal) 223] wherein it was

held that the witness should not not be given an opportunity of

seeing the property before it is identified before the Magistrate. It

is a case where the property in question belonged to PW1 Crl.R.P.No.1585/2005

himself. Therefore, the fact that the property was shown to him

during investigation is insignificant. That apart, MO1 was seized

in connection with another crime. Therefore, it was necessary for

the investigating agency to show MO1 to PW1 and get it

identified to proceed further with the investigation. PW1 who is

the owner of MO1 has clearly identified the same. The learned

counsel further submitted that the arrest of the accused was also

not properly proved inasmuch as no arrest memo is produced. It

is true that no arrest memo is produced. But, the evidence of

PW5 would show that he was arrested in connection with another

crime and his formal arrest was recorded in that crime.

11. As stated already, PW1 and PW2 have clearly

deposed about the incident. There is no vital contradictions or

material omissions in their evidence affecting the prosecution

evidence. They had identified MO1 as well as the accused at the

court. Therefore, I hold that the evidence of PW1 and PW2 can

safely be relied on to prove the incident and to fix the culpability

on the accused.

12. PW3, the owner of Rohit Jewellery at M.G.Road, Crl.R.P.No.1585/2005

Ernakulam is the person who purchased MO1 gold chain from the

accused. His evidence would show that on 8/8/1998, the accused

sold MO1 to him for `5,000/-. His evidence on record would show

that on the basis of the confession statement given by the

accused in the other crime, PW5, the Circle Inspector of Police,

went to the jewellery of PW3 and recovered MO1. There is

nothing to disbelieve the evidence given by PW3 and PW5 with

regard to the recovery. The learned counsel for the revision

petitioner argued that PW3 is only a chance witness. PW3 cannot

be termed as a chance witness inasmuch as he came into the

picture on the basis of the disclosure statement made by the

accused to the police that he had sold the property to him. Thus,

the evidence of PW3 gets corroboration from the evidence given

by PW1 and PW2.

13. It is settled that the revisional jurisdiction was to

confer power upon superior courts a kind of paternal or

supervisory jurisdiction in order to correct miscarriage of justice

arising from misconception of law, irregularity of procedure,

neglect of proper precautions or apparent harshness of Crl.R.P.No.1585/2005

treatment. It has been consistently held by the Apex Court that

the jurisdiction of the High Court in revision is severely restricted

and it cannot embark upon reappreciation of evidence. In State

of Maharashtra v. Jagmohan Singh Kuldip Singh Anand &

Others [(2004) 7 SCC 659], the Apex Court held that while

exercising revisional powers u/s 397 r/w 401 of Cr.P.C, the court

is required to find out if there is an illegality or impropriety in the

findings of the trial court and the appellate court warranting

interference and it is not open to this court to exercise the

revisional power as second appellate forum. In Shlok Bhardwaj

v. Runika Bhardwaj and Others [(2015) 2 SCC 721], the Apex

Court held that the scope of revisional jurisdiction of the High

Court does not extend to reappreciation of evidence. I have

carefully gone through the records and the proceedings and the

judgments of the courts below. There is nothing to show that the

findings recorded by the trial court or the appellate court are

vitiated by illegality or impropriety warranting interference of this

court u/s 397 r/w S.401 of Cr.P.C.

14. The learned counsel for the revision petitioner Crl.R.P.No.1585/2005

submitted that the substantive sentence may be set aside and

the conviction may be confined to fine. I cannot accept the said

submission for the reason that the offence alleged against the

revision petitioner is serious in nature. That apart, he is involved

in a similar offence. However, considering the fact that he is

facing trial of the court since 1999, I am of the view that

substantive sentence can be reduced to two years.

In view of the above findings, I confirm the conviction

passed by the courts below. The substantive sentence is reduced

to two years. The revision petition is allowed in part to that

extent.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE Rp