Nazeer @ Motta Sura vs State Of Kerala
2021 Latest Caselaw 23300 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
         THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
THURSDAY, THE 25TH DAY OF NOVEMBER 2021/4TH AGRAHAYANA, 1943
                    CRL.A NO. 2205 OF 2005
AGAINST THE JUDGMENT IN SC 20/2000 OF I ADDITIONAL SESSIONS
                   COURT, THIRUVANANTHAPURAM
        CP 3/1998 OF JUDICIAL MAGISTRATE OF FIRST CLASS
                      -III,NEYYATTINKARA
APPELLANTS/ACCUSED 1 & 5:

    1     NAZEER @ MOTTA SURA,
          S/O. NAJUMUDEEN, SALIMA MANZIL, PALLI ROAD, NEAR
          CHEELANTHIMUKKU,, VALLAKAKDAVU WARD, MUTTATHARA
          VILLAGE,, THIRUVANANTHAPURAM.

    2     SHIJU @ CHINNAN, S/O.RAMU,
          THOPPINAKOM EIGHT ACRE, VALIYATHURA, MUTTATHARA
          VILLAGE, THIRUVANANTHAPURAM.

          BY ADV SRI.G.SUDHEER


RESPONDENT/COMPLAINANT:

          STATE OF KERALA
          REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF
          KERALA,, ERNAKULAM.

          BY ADV PUBLIC PROSECUTOR SRI.SANAL P.RAJ


     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
25.11.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Crl.Appeal No.2205/2005

                               -:2:-




                          J U D G M E N T

Dated this the 25th day of November, 2021

This appeal has been filed by the accused Nos.1 and 5 in SC

No.20/2000 on the file of the Additional Sessions Court,

Thiruvananthapuram (for short, 'the court below') against the

judgment dated 19/12/2005 convicting them under Sections 392

and 394 of IPC.

2. The prosecution case in short is as follows: On

21/12/1996 at 10.30 p.m, CW1 was returning home after his

chitty business along with his son PW1 and his nephew,

Mr.Gopalakrishnan Nair. When they reached the bund of Kottukal

Valiyathodu near Kollamkonam bridge, the accused Nos.1 to 5

who were waiting for CW1 suddenly jumped on him and extorted

his bag which contained cash of `15,000/-. When

Mr.Gopalakrishnan Nair tried to resist, the accused No.2 stabbed

on back of his trunk with MO1 knife causing fatal injury and he

succumbed to the injuries at the Medical College Hospital on the

same day. The accused No.1 fisted on the nose and chest of PW1 Crl.Appeal No.2205/2005

as well. Thus, the accused committed the offences under

Sections 395 and 396 of IPC.

3. Immediately after the incident, at 11.30 p.m., CW1

went to the Kanjiramkulam Police Station and gave Ext.P1

statement to PW17, the Head Constable. On the basis of Ext.P1,

PW17 registered Ext.P1(a) FIR u/s 395 of IPC. PW17 informed the

incident to PW19, his superior officer, the Sub Inspector of

Kanjiramkulam Police Station. PW19 went to the place of

occurrence immediately and he could find that accused Nos. 1

and 5 were caught and detained by the people who gathered

there. He arrested the accused Nos.1 and 5. He also seized the

autorickshaw bearing Regn.No.KL-02 A 1899 belonging to the

accused No.5 used for the commission of the offence which was

found abandoned as per Ext.P13 mahazar. PW20, the Circle

Inspector of Police, Poovar Police Station took up the investigation

on 22/12/1996. He went to the Medical College Hospital and

conducted inquest on the body of the deceased Gopalakrishnan

Nair. Ext.P5 is the inquest report. He seized MO15 to MO17 at the

time of the inquest which were found on the body of the

deceased. He handed over the body to PW12, the Assistant Crl.Appeal No.2205/2005

Professor of Forensic Medicine, Medical College Hospital, who

conducted post mortem examination on 22/12/1996. Ext.P8 is

the post mortem certificate. PW20 then proceeded to the place of

occurrence, prepared Ext.P14 scene mahazar and seized MO1

knife, MO2 broken specs, MO3 part of a torch, MO18 watch, MO19

& MO20 slippers and MO21 chilly powder found at the spot. He

thereafter added Section 396 of IPC and filed Ext.P16 report to

that effect. He arrested the accused No.4 on 13/12/1996. He

questioned the witnesses, completed the investigation and filed

final report before the Magistrate. The learned Magistrate after

complying with the statutory formalities committed the case to

stand trial to the Court of Sessions.

4. The accused Nos.1, 4 and 5 alone faced trial. The

accused Nos.2 and 3 were absconding. After hearing both sides,

the court below framed charge under Sections 395 and 396 of IPC

against the accused Nos.1, 4 and 5. The charge was read over

and explained to them who pleaded not guilty. The prosecution

examined PWs 1 to 20 and marked Exts.P1 to P21. MOs1 to 21

were identified. On the side of the defence, Ext.D1 was marked.

5. Considering the evidence on record, the court below Crl.Appeal No.2205/2005

found the accused No.1 guilty for the offence punishable u/s 394

r/w 392 of IPC and the accused No.5 guilty for the offence u/s 392

of IPC and they were convicted for the said offence. The accused

No.1 was sentenced to undergo rigorous imprisonment for four

years and to pay a fine of `15,000/-, in default to suffer rigorous

imprisonment for one year for the offence u/s 394 r/w 392 of IPC.

The accused No.5 was sentenced to undergo rigorous

imprisonment for four years and to pay a fine of `15,000/-, in

default to undergo rigorous imprisonment for one year u/s 392 of

IPC. The accused No.4 was found not guilty of all the offences

charged against him and therefore he was acquitted. Aggrieved

by the conviction and sentence passed by the court below, the

accused Nos. 1 and 5 preferred this appeal.

6. I have heard Sri.G.Sudheer Karakonam, the learned

counsel for the appellants and Sri.Sanal P. Raj, the learned Public

Prosecutor.

7. The learned counsel for the appellants impeached the

finding of the court below on appreciation of evidence and the

resultant finding as to the guilt. The learned counsel submitted

that the evidence of PWs1 to 4 who were heavily relied on by the Crl.Appeal No.2205/2005

court below was totally inconsistent with the prosecution case

and full of contradictions and omissions. The learned counsel

further submitted that the arrest of the accused Nos. 1 and 5 at

the spot has not been satisfactorily proved. The counsel also

submitted that the recovery of the autorickshaw relied on by the

court below is legally unsustainable. The counsel finally

submitted that, at any rate, the sentence is excessive.

8. 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 Sections 392 and

394 of IPC had been established and the prosecution has

succeeded in proving the case beyond reasonable doubt.

9. According to the prosecution version, CW1, PW1 and

the deceased Gopalakrishnan Nair were ocular witnesses to the

entire incident. CW1 and Mr.Gopalakrishnan Nair are no more.

PW1 gave evidence that when he along with CW1 and

Mr.Gopalakrishnan Nair reached at the place of occurrence, the

accused No.1 jumped in front of them, threw chilly powder at the

eyes of CW1 and then the accused No.2 gave a blow on the

shoulder of CW1 and both of them fell into the nearby channel. Crl.Appeal No.2205/2005

He further deposed that PW1 and Mr.Gopalakrishnan Nair tried to

resist and caught hold of the accused No.1. At that point of time,

accused Nos.3 and 5 came there, and in the scuffle which

ensued, all of them fell into the channel and thereafter the

accused No.1 forcibly took away the money bag carried by CW1.

He also deposed that the accused No.2 inflicted fatal injury with a

knife on the back of the trunk of Mr.Gopalakrishnan Nair and

thereafter all the accused ran away from the scene. The people of

the locality gathered there apprehended accused Nos.1 and 5,

but the others escaped. He added that the police came to the

spot and arrested accused Nos.1 and 5. PW1 identified accused

Nos.1 and 5 at the court as the persons who were apprehended

at the spot by the people of the locality immediately after the

incident.

10. PWs2 to 4 are also ocular witnesses who came to the

spot immediately after the incident. PWs2 and 3 deposed that

they were at the fields of their plantain cultivation which were

situated adjacent to the place of occurrence at the night on the

date of the incident and by 10.30 p.m, on hearing a hue and cry

from the place of occurrence, they rushed to the place of Crl.Appeal No.2205/2005

occurrence where they found three persons entering into the

autorickshaw. They further deposed that two persons were

caught and detained by the people who assembled there. They

identified accused Nos.1 and 5 as those two persons. PW4 is a

person who was residing near to the place of occurrence. He gave

evidence that, on the date and time of the incident, he heard a

hue and cry from the place of occurrence and immediately he

rushed there where he found late Gopalakrishnan Nair being

taken from the thodu. He further deposed that the people

gathered there caught and detained two persons. He identified

the accused Nos. 1 and 5 as those two persons.

11. PWs1 to 4 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. It is true that PW1 did not speak

about the involvement of the fourth accused at all at the court. To

that extent, he has deviated from his statement given to the

police u/s 161 of Cr.P.C. Moreover, the case of the prosecution is

that, the accused No.5 was assigned with the task of watching

the scene of occurrence and he finally told others to come quickly Crl.Appeal No.2205/2005

as neighbours were gathering there. But, according to the version

of PW1 at the court, the accused No.5 was actually involved in

the occurrence and he assaulted him and others. This was

projected by the learned counsel for the appellants as a material

contradiction. The question is whether there is any inconsistency

or contradiction so far as the involvement of the accused Nos.1

and 5 are concerned who were found guilty by the court below. A

perusal of the evidence of PW1 would clearly show that he gave

reliable, consistent and credible version of the crime so far as the

involvement of accused Nos.1 and 5 are concerned and his

evidence to that extent inspires confidence. PW1 clearly deposed

the manner in which the accused Nos. 1 and 5 attacked him as

well as CW1 and late Gopalakrishnan Nair. He clearly identified

the accused Nos. 1 and 5 at the court. PWs2 to 4 consistently

gave evidence that when they reached the spot, they could find

people gathered there apprehended and detained accused Nos.1

and 5. They have also identified accused Nos.1 and 5. That apart,

PW1 also has sustained injury in the incident. Ext.P11 wound

certificate would substantiate the same. It is trite that the

evidence of the injured witness has to be given much weightage. Crl.Appeal No.2205/2005

Where a witness to an occurrence has himself/herself been

injured in the incident, the testimony of such witness is generally

considered to be very reliable as he/she is a witness that comes

with a built-in guarantee of his/her presence in the scene of the

crime and is unlikely to spare the actual assailant in order to

falsely implicate some one. Thus, I am of the view that the

evidence of PWs1 to 4 could be safely relied upon to prove the

incident and to fix the culpability on the accused.

12. The evidence on record would further show that the

deceased Gopalakrishnan Nair sustained fatal injury in the

incident and he was immediately taken to the Medical College

Hospital. However, CW1 did not accompany him to the hospital

and instead he went to the police station and gave FI statement

at 11.30 p.m. itself. The incident was at 10.30 p.m. Ext.P1 was

marked through PW1, who is none other than his son. He

identified his signature. In Ext.P1, CW1 has given a detailed

account of the incident and it is specifically stated in Ext.P1 itself

that the two assailants were apprehended at the spot by the

people who gathered there. PW19 deposed that while he was

doing his patrol duty in the night of 21/12/1996, he got a Crl.Appeal No.2205/2005

message regarding the incident and he immediately went to the

place of occurrence where he found accused Nos.1 and 5 caught

and detained by the local people and he arrested them. So the

presence of accused Nos.1 and 5 at the spot has amply been

proved through the evidence of PWs 1 to 4, PW19, as well as

Ext.P1 FI statement. The evidence of PW13, the doctor who

proved Exts.P10 and P11 wound certificates would show that

CW1 and PW1 had sustained injuries in the incident. Thus, oral

evidence adduced by the ocular witnesses gets corroboration

from the medical evidence as well.

13. Yet another piece of evidence relied on by the

prosecution is the recovery of the autorickshaw belonging to

accused No.5. The prosecution case is that the accused came to

the spot in the autorickshaw. The autorickshaw was found

abandoned after the incident and PW19 seized it as per Ext.P13

mahazar. The evidence of PW19 would show that he could find

the licence of the accused No.5 in the autorickshaw. Even the

accused No.5 did not dispute that he was the driver of the

autorickshaw in question. The autorickshaw was seized in the mid

night at 1 o'clock on the date of the incident. PW11, the owner of Crl.Appeal No.2205/2005

the autorickshaw, has also admitted that the accused No.5 was

the driver of the autorickshaw. The learned counsel for the

appellants submitted that the recovery of autorickshaw is

doubtful and since it was recovered at a far away place, the said

recovery cannot be relied on. I cannot subscribe to the said

submission. There is ample evidence to show that the accused

came to the spot in the autorickshaw. It was seen abandoned at

the same night. The licence of the accused No.5 was found in

the autorickshaw. The seizure of the autorickshaw was proved

through the evidence of PW19. Hence, I am of the view that the

seizure of the autorickshaw also has been proved by the

prosecution.

14. The evidence on record clearly establishes that the

accused Nos.1 and 5 along with at least two others conjointly

committed robbery of the money bag containing `15,000/- carried

by CW1 and in committing so, the accused No.1 wrongfully

restrained CW1 and PW1 and voluntarily caused hurt to them.

Thus, on a careful examination and appreciation of the entire

evidence on record, I have no hesitation to come to the

conclusion that the prosecution has succeeded in establishing Crl.Appeal No.2205/2005

beyond reasonable doubt that the accused No.1 has committed

offence under Section 394 read with Section 392 of the IPC and

the accused No.5 has committed the offence under Section 392

of IPC. The sentence awarded by the court below also appears to

be reasonable. A report filed by the prosecution would show that

the accused Nos. 1 and 5 are habitual offenders and they are

involved in crime under Section 302 of IPC. Hence, I find no

reason to interfere with the sentence. The appeal fails and it is to

be dismissed.

In the result, the appeal is dismissed.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE Rp

//True copy//

PS to Judge