Kerala High Court
M. D. Elash Sikari vs State Of Kerala on 12 February, 2025
Criminal Appeal Nos.592/2022 & 478/2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 12TH DAY OF FEBRUARY 2025 / 23RD MAGHA, 1946
CRL.A NO. 592 OF 2022
CRIME NO.442/2018 OF KANNUR CITY POLICE STATION, KANNUR
AGAINST THE JUDGMENT DATED 14.03.2022 IN SC NO.490 OF
2020 ON THE FILE OF THE COURT OF SESSION, THALASSERY.
APPELLANT/ACCUSED NO.2 (IN CUSTODY):
ALANGIR @ RAFIQ
AGED 36 YEARS
S/O.HUSSAIN ALI HAWALADHAR UTTAR KOLAROLL
VILLAGE,
CHANDIPUR, PS INDER KANI,
PIRISHPUR DISTRICT,
BANGLADESH., PIN - 8500.
BY ADVS.
P.MOHAMED SABAH
R.GAYATHRI
LIBIN STANLEY
SAIPOOJA
SADIK ISMAYIL
M.MAHIN HAMZA
SAFIYA AKBAR
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682 031.
BY ADVS.
SRI. VIPIN NARAYAN, SENIOR PUBLIC PROSECUTOR
SMT.AMBIKA DEVI S, SPL.G.P. (ATROCITIES AGAINST
WOMEN AND CHILDREN AND WELFARE OF W AND C)(GP-38)
Criminal Appeal Nos.592/2022 & 478/2023
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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
04.02.2025, ALONG WITH CRL.A.478/2023, THE COURT ON
12.02.2025 DELIVERED THE FOLLOWING:
Criminal Appeal Nos.592/2022 & 478/2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 12TH DAY OF FEBRUARY 2025 / 23RD MAGHA, 1946
CRL.A NO. 478 OF 2023
CRIME NO.442/2018 OF KANNUR CITY POLICE STATION, KANNUR.
AGAINST THE JUDGMENT DATED 14.03.2022 IN SC NO.490 OF
2020 ON THE FILE OF THE COURT OF SESSION, THALASSERY.
APPELLANTS/ACCUSED NO.1 & 3 (IN CUSTODY):
1 M. D. ELASH SIKARI,
AGED 36 YEARS,
S/O SALAM SIKARI, NISANBARI, CHALITABUNIA,
MORRELGANJ, BAGERHAT, BANGLADESH, PIN - 9300
2 MANIK @ MASTER @ MOTA,
AGED 39 YEARS,
S/O MUTALIF, KOLARAN VILLAGE, CHOUDIPOUR POST,
PIRISHPUR DISTRICT, BORISAL STATE, BANGLADESH,
PIN - 8501.
BY ADVS.
P.MOHAMED SABAH
LIBIN STANLEY
SAIPOOJA
SADIK ISMAYIL
R.GAYATHRI
M.MAHIN HAMZA
ALWIN JOSEPH
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682 031.
Criminal Appeal Nos.592/2022 & 478/2023
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BY ADV.
SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
04.02.2025, ALONG WITH CRL.A.592/2022, THE COURT ON
12.02.2025 DELIVERED THE FOLLOWING:
Criminal Appeal Nos.592/2022 & 478/2023
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C.S.SUDHA, J.
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Criminal Appeal Nos.592/2022 & 478/2023
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Dated this the 12th day of February 2025
JUDGMENT
In these appeals filed under Section 374(2) Cr.P.C., the
appellants who are accused nos.1 to 3 in S.C.No.490 of 2020 on
the file of the Court of Session, Thalassery, challenge the
conviction entered and sentence passed against them for the
offences punishable under Sections 457, 461 and 395 IPC.
2. The prosecution case is that accused nos.1 to 3 along
with three other accused persons in furtherance of their common
intention of committing robbery, on 06/09/2018 at 01:30 a.m.
broke into the house of PW1 and PW2. When PW2 opened the
bedroom door upon hearing the sound of the front door being
broken open, all the six accused persons barged into his bedroom,
slapped and kicked him. When PW2 fell down, the accused caught
hold of PW2 by his neck and squeezed it in order to deter/prevent
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him from making any noise. Thereafter, they blindfolded him.
They covered/tied his nose and mouth with a cotton sheet and also
tied his arms and legs in order to immobilise him. When PW1,
his wife, tried to cry out, the 2nd accused forcibly closed her mouth
with his hand and the 3rd accused after blindfolding her, tied her
mouth and nose with a piece of bed sheet. When PW1 tried to
escape from the clutches of the accused, the 3rd accused slapped
and tied her legs and hands to immobilise and silence her. The
accused also forcibly took away the gold ornaments worn by
PW1. They thereafter, decamped with gold ornaments, laptop,
three mobile phones, power bank, the debit card issued by HDFC
in the name of PW2 and ₹23,000/- kept in the purse of PW1. The
accused, nationals of Bangladesh committed the aforesaid
criminal acts by entering and remaining in India without valid
travel documents. Hence, as per the final report, the accused were
alleged to have committed the offences punishable under Sections
457, 461, 395 IPC and Section 14 read with Section 3(2) of the
Foreigners Act, 1946 (the Act).
3. Crime no.442/2018, Kannur City Police Station, that
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is, Ext.P32 FIR was registered by PW23, the then Sub Inspector,
Kannur police station based on Ext.P1 FIS of PW2. The
investigation was conducted by PW25, PW26 and PW28. On
completion of investigation, PW28 submitted the final report
before the jurisdictional magistrate alleging the commission of the
offences punishable under the aforementioned Sections by the
accused.
4. On appearance of the accused persons, the
jurisdictional magistrate after complying with all the necessary
formalities contemplated under Section 209 Cr.P.C., committed
the case to the Court of Session, Thalassery. The case was taken
on file as S.C.No.490/2020 and thereafter made over to the
Assistant Sessions Judge, Kannur for trial and disposal. The trial
court framed a charge for the offences punishable under Sections
457, 461, 395 IPC and Section 14(A)(b) of the Act, which was
read over and explained to the accused persons to which they
pleaded not guilty.
5. On behalf of the prosecution, PW1 to PW28
were examined and Exts.P1 to P50 were got marked in support of
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the case. After the close of the prosecution evidence, the accused
persons were questioned under Section 313(1)(b) Cr.P.C. with
regard to the incriminating circumstances appearing against them
in the evidence of the prosecution. The accused persons denied all
those circumstances and maintained his innocence.
6. As the trial court did not find it a fit case to
acquit the accused persons under Section 232 Cr.P.C., they were
asked to enter on their defence and adduce evidence in support
thereof. No oral or documentary evidence was adduced on behalf
of the accused.
7. On a consideration of the oral and documentary
evidence and after hearing both sides, the trial court by the
impugned judgment acquitted the accused of the offence
punishable under Section 14 (A)(b) of the Act. However, they
have been found guilty of the offences punishable under Sections
457, 461 and 395 IPC. Hence, they have been sentenced to
rigorous imprisonment for nine years for the offence punishable
under Section 395 IPC and to a fine of ₹10,000/-; to rigorous
imprisonment for seven years and to a fine of ₹10,000/- for the
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offence punishable under Section 457 IPC and to rigorous
imprisonment for one year for the offence punishable under
Section 461 IPC. They have also been sentenced to undergo
imprisonment for one year in the event of default in the payment
of fine. Set off under Section 428 Cr.P.C. has been allowed.
Aggrieved, the accused persons have come up in appeal.
8. The only point that arises for consideration in
these appeals are whether the conviction entered and sentence
passed against the accused persons/appellants by the trial court are
sustainable or not.
9. Heard both sides.
10. It is submitted by the learned counsel for the
appellants/accused that the evidence on record is unsatisfactory to
find the accused persons guilty of the offences alleged against
them beyond reasonable doubt. The prosecution witnesses have no
prior acquaintance with the accused persons. But no test
identification parade (TIP) was conducted by the police.
Therefore, identification of the accused persons by PW1 and PW2
in the dock for the first time is highly doubtful. No recovery of the
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valuables alleged to have been stolen from the house of PW1 and
PW2 have been recovered/seized from the accused persons. There
are no materials to show how the finger prints and blood samples
of the accused persons were taken. Hence, it was submitted that
the accused persons are entitled to be given the benefit of doubt.
Per contra, it was submitted by the learned Public Prosecutor that
there is sufficient evidence on record to prove the offences alleged
against the accused and hence no interference into the impugned
judgment is called for.
11. I briefly refer to the evidence relied on by the
prosecution in support of the case. PW1 is the wife of PW2. PW2
deposed that on 05/09/2018 he reached home after work at about
11:30 p.m. He along with PW1, his wife went to bed by about
12:30 a.m. At about 01:30 a.m. hearing a noise, he got up and
switched on the light in his bedroom and opened the bedroom
door. When he opened the door, 6 persons barged into the
bedroom and one of them slapped on his face and kicked on his
stomach. Another accused caught him by his neck and pressed it.
Due to the sudden attack, he fell down, at which time one of them
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tied his hands and legs to immobilise him. His entire face was
covered with a piece of bed sheet and tied. When his wife tried to
cry out to get the attention of the neighbours, the accused persons
tied her hands and legs and also covered her entire face with a
cloth and tied her up. After the accused tied them up, they
switched on the lights in the house and for about 1-1¾ hours they
ransacked his house after which they left. PW2 further deposed
that he somehow managed to untie the knots and freed himself. He
thereafter helped PW1 to untie herself. Both of them were
exhausted. They had sustained minor injuries in the incident.
When PW1 searched for his mobile phone to make a call, he
realised that the same was missing. He then made a phone call to
his office from his landline and requested medical as well as
police aid. The police arrived soon after and took them to the
A.K.G. Hospital for treatment, where they were admitted in the
ICU. PW2 further deposed that the accused persons had
decamped with 60 sovereigns of gold ornaments, three mobile
phones, diamond ornaments worth ₹2,00,000/- and ₹15,000/-
which was kept inside an almirah. They had also taken his office
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bag in which his ATM card and another purse was kept with
₹3,000/-. Further, an amount of ₹5,000/- which was also kept in
the almirah was stolen. PW2 also deposed that he had given
Ext.P1 FIS to the police while he was at the hospital undergoing
treatment.
11.1. PW1, his wife, fully supported the testimony of
PW2.
11.2. PW23, the then Sub Inspector, Kannur police
station, deposed that on receiving information, he had gone to the
house of PW1 and PW2, where he found PW1 and PW2 in an
exhausted state and therefore he took them to the hospital for
treatment. He further deposed that on examination of the house he
found that the bolt of the front door had been broken. He recorded
the signs of house-breaking in Ext.P5 scene mahazar. PW23 also
deposed that he had recorded Ext.P1 FIS of PW2 on the basis of
which he had registered the crime, that is, Ext.P32 FIR.
11.3. PW3, CMO, AKG Hospital, Kannur deposed
that on 06/09/2018 at about 04:59 a.m. he examined PW1 as well
as PW2, who were brought to the hospital with a history of assault
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by six thieves during robbery. On examination he found the
following injuries which were recorded in Exts.P3 and P4 wound
certificates, which contain his signature. The injuries noted are:
Ext.P3 wound certificate of PW2
"1. Periorbital Oedema (L)
2. Multiple contusions & abrasions over the
face (5x4 cm, 4x3 cm each)
3. Multiple contusions & abrasions over the
neck ĉ deep contusions around the neck.
4. Multiple soft tissue contusions over upper
and lower limbs B/L.
5. Contusions over ant. chest wall 16x5 cm
each."
Ext. P4 wound certificate of PW1
"1. Multiple contusions and abrasions over the
face -
2. Subconjunctival Haemorrhage (R) eye.
3. (L) eye -
4. Tenderness & contusions (L) wrist. (6x5
cm)
5. (R) wrist - (6x5 cm)
6. A Lacerated wound over buccal mucosa (L)
- 3x0.5 cm.
7. Periorbital Oedema B/L."
11.4. The aforesaid evidence clearly shows that six
persons had broken into the house of PW1 and PW2 and had
decamped with valuables like gold, cash etc. Now coming to the
question whether there has been a proper identification of A1 to
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A3 in this case.
11.5. PW1 and PW2 in the box identified the accused
persons in the dock. PW2 deposed that when he opened the
bedroom door, A1 to A3 had barged into the bedroom and one of
them had slapped and kicked him. While another caught hold of
his neck before they tied him up with a piece of cloth. PW2
identified the 2nd accused as the person who had tied his hands
and legs and the 1st accused as the person who had caught hold of
him by his neck. PW1 supported the testimony of PW2 regarding
the identity of the 1st and the 2nd accused. PW1 further deposed
that it was the 3rd accused who had slapped and kicked PW2. She
also deposed that the 1st accused had caught hold of her neck.
Though PW1 and PW2 were extensively cross-examined nothing
was brought out to discredit their testimony or version.
11.6. It is true that PW1 and PW2 have no prior
acquaintance with the accused persons. It is also true that no TIP
had been conducted by the police. But conduct of TIP is not
mandatory. Merely because TIP has not been conducted is no
reason to reject the prosecution case. In the case on hand, no
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purpose would have been served by conducting TIP because it has
come out in evidence that after the accused persons were arrested
in another crime and while they were in judicial custody in the
said crime, the photographs of the accused persons in their
respective passports were shown to the witnesses for the purpose
of identification and it was when the witnesses identified the
accused persons, they were arrested in the present crime. That
being the position, no purpose would have been served by
conducting a TIP.
11.7. Apart from the testimony of PW1 and PW2, the
prosecution relies on scientific evidence to prove the involvement
of the accused persons in the crime. PW23 deposed that after he
had recorded Ext.P1 FIS and had registered the crime, he had
visited the house of PW1 and PW2 along with the Finger Print
Expert, Scientific Expert and the dog squad. The experts collected
chance fingerprints and other material objects for the purpose of
extracting DNA sample from the objects seen in the house soon
after the incident. He deposed that the scientific assistant had
collected bloodstains; half-burned beedi butts/stubs and a cigarette
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packet along with other items from the place of occurrence on
06/09/2018 at 08:45 a.m.
11.8. PW10, Fingerprint Expert, Finger Print Bureau,
Kannur deposed that he had accompanied PW23 to the place of
occurrence and had collected 15 chance prints. The photographs
of same were taken by PW11 who developed the chance
fingerprints collected. PW10 also deposed that out of the 15
chance prints taken six were found to be unfit, only the remaining
9 were fit for analysis. He compared the same with the finger
print impression of the 3rd accused collected after his arrest and
found that one of the chance prints collected from the liquor bottle
seized from the place of occurrence was that of the 3 rd accused.
PW10 also deposed that he found the left thumb impression of the
3rd accused upon an empty liquor bottle seized from the house of
PW1 and PW2 as per Ext. P5 scene mahazar. The report of PW10
is Ext.P12 and the enlarged photograph of the thumb impression
of the 3rd accused is Ext.P11. PW10 further deposed that on
comparison of the chance print taken from the cigarette packets
seized from the house with the finger print impression of the 2 nd
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accused which finger print was taken after his arrest, found that
the chance print matched with the fingerprint of the 2nd accused.
The enlarged copy of the chance prints and his report has been
marked as Ext.P13 to P15. PW10 also deposed that he had
compared the specimen finger print of the 1st accused collected
after his arrest with the chance prints collected from a polythene
cover seized from the house and found that the right thumb, left
ring finger, left middle finger of the 1st accused matched with the
same. The enlarged copy of the chance prints and the report of
PW10 have been marked as Exts.P16 to P18.
11.9. PW16, Scientific Officer attached to DCRB,
Kannur deposed that on 06/09/2018 she had accompanied the
investigating officer to the place of occurrence and had thoroughly
examined the rooms inside the house. She collected bloodstains
found in the almirah of the house, on the bed sheet and on the bed
cover. She had also collected half-burnt beedi butts/stubs found in
the bedroom and in the hall of the house. She had also collected a
packet of cigarette and hair strands from the teapoy kept in the
central hall of the house. Ext.P24 is the report submitted by
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PW16. The material objects collected from the scene were
produced before the Court as per Ext.P33 property list. The said
material objects and the chance prints were sent to the RFSL,
Kannur and to the Single Digit Finger Print Beauro respectively
for necessary examination.
11.10. PW9, Assistant Director of Biology, Regional
Forensic Laboratory, Kannur deposed that he had examined 15
items of the material objects which were forwarded to the
laboratory by the Court. He was able to extract DNA from items
1,2,3,4 and 14 for DNA profiling. He compared the DNA
extracted from item No.4, that is, a partially burned beedi stub
with the DNA of the blood sample of Muhammed Hilal Bayya and
found them to be identical. Muhammed Hilal Bayya, the 2 nd
accused, in crime no.442/2018 is not facing trial now. PW9 further
deposed that he had compared the DNA extracted from item no.1
and 2 with the DNA extracted from the blood sample of the 3 rd
accused and found the DNAs to be identical. The report of PW9
have been marked as Ext.P9 to Ext.P9(b).
12. Therefore, the scientific evidence brought on
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record corroborates the testimony of PW1 and PW2 regarding the
involvement of A1 to A3 in the crime. The evidence on record
clearly establishes that on 06/09/2018 at 01:30 a.m. accused
persons 1 to 3 along with three others had broken into the house of
PW1 and PW2 and after tying them up had decamped with the
valuables in the house. They had broken open the almirah of the
house and had stolen valuables kept therein also. Therefore, the
prosecution has been successful in establishing the offences
charged against the accused persons.
13. Now coming to the sentence that has been
imposed on the accused. The learned counsel for the
appellant/accused persuasively argued for a reduction in the
substantive sentence of imprisonment. It was pointed out that the
accused persons have been undergoing imprisonment for nearly 4
years and hence the sentence may be brought down considerably. I
am afraid the said submission of the learned counsel cannot be
accepted because this is a case in which six armed men broke into
a house and attacked two unarmed persons and decamped with
gold and other valuables. The sentence awarded by the trial court
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is commensurate with the crime. In the facts and circumstances of
the case, if this Court reduces the sentence it would only send a
wrong message to the society at large as offences of this nature are
on the increase in recent times. I find no infirmity in the findings
of the trial court calling for an interference by this Court.
In the result, the appeals are dismissed.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
ak
