Kerala High Court
O.K. Babu @ Balakrishnan vs The Inspector Of Police on 24 February, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 24TH DAY OF FEBRUARY 2025 / 5TH PHALGUNA, 1946
CRL.A NO. 144 OF 2019
CRIME NO.11/1988 OF VELLAMUNDA POLICE STATION
AGAINST THE JUDGMENT DATED 21.08.2018 IN SC NO.153 OF
2017 ON THE FILE OF THE COURT OF SESSION, WAYANAD, ARISING
OUT OF THE ORDER IN CP NO.7 OF 1988 OF JUDICIAL MAGISTRATE
OF FIRST CLASS, MANANTHAVADY
APPELLANT/ACCUSED:
O.K. BABU @ BALAKRISHNAN,
AGED 54 YEARS
S/O AMBADI @ SUBHASH, OTTARAKAN VALAPPIL,
RAVANESHWARAM, KANHANGAD.
BY ADV SUNNY MATHEW
RESPONDENTS/COMPLAINANT AND STATE:
1 THE INSPECTOR OF POLICE,
CBCID, WAYANAD, WAYANAD DISTRICT - 673121
2 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682031
SRI.VIPIN NARAYAN, PP
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
17.02.2025, THE COURT ON 24.02.2025 DELIVERED THE FOLLOWING:
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2
C.S.SUDHA, J.
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Criminal Appeal No.144 of 2019
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Dated this the 24th day of February 2025
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the
appellant, the sole accused in S.C. No.153/2017 on the file of the
Court of Session, Wayanad, challenges the conviction entered and
sentence passed against him for the offences punishable under
Sections 457, 380, 395 and 461 IPC.
2. As per the final report, the prosecution case is that on
08/02/1988 at 03:30 a.m., the accused persons, six in number,
including the accused herein, broke into the Nallurnad Service Co-
operative Bank and committed theft of the iron safe containing gold
ornaments, currency notes, and other valuable securities from the
bank. They attempted to cause the death of PW4 while carrying
away the safe. Thereafter, they broke open the iron safe and took
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away the gold ornaments and the other valuables kept therein.
Hence, the accused persons, as per the final report, were alleged to
have committed the offences punishable under Sections 457, 380,
395, 397 and 461 IPC.
3. Crime No.11/1988, Vellamunda police station, that is,
Ext.P1(a) FIR, was registered by PW34, Circle Inspector,
Mananthavady, on the basis of Ext.P1 FIS given by PW1. The
investigation was conducted by PW34 as well as PW35, Detective
Inspector, Crime Branch CID, Wayanad. On completion of the
investigation, the final report was submitted by PW36, Detective
Inspector, Crime Branch CID, Kozhikode, alleging the commission
of the offences punishable under the aforementioned sections.
4. On appearance of all 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, Wayanad, which court took the case
on filed as S.C. No.29/1988. A charge under Sections 457, 380,
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395, 397 and 461 read with Section 34 IPC was framed, read over
and explained to the accused persons to which they pleaded not
guilty. Thereafter, the 2nd accused and the accused/appellant herein,
who was arrayed as the 3rd accused in the final report, absconded
and the case against them was split up and refiled as S.C.
No.23/1992 and the case was transferred to the register of long
pending cases as L.P. No.4/1995. In S.C. No.29/1988, the Sessions
Court, Wayanad found A1 and A4 to A6 guilty of the offences
alleged against them and sentenced them accordingly. The said
accused persons preferred appeals, that is, Crl.A. Nos.216 and 239
of 1994 before this Court and by judgments dated 28/03/2003, the
conviction of A1 (Subair) and A5 (K.V.Ali kutty) was confirmed.
A4 (K.Suresh Babu) died and hence the appeal filed by him abated.
The appellant/accused herein who was arrayed as the 3rd accused in
the final report surrendered before the trial court on 16/05/2017.
The case was renumbered as S.C. No.153/2017 and thereafter the
case was made over to the Additional Sessions Judge-II, Kalpetta,
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Wayanad, for trial and disposal.
5. On behalf of the prosecution, PWs.1 to 36 were
examined and Exts.P1 to P263 and MOs 1 to 111 were marked in
support of the case. After the close of the prosecution evidence, the
accused was questioned under Section 313(1)(b) Cr.P.C. with
regard to the incriminating circumstances appearing against him in
the evidence of the prosecution. The accused denied all those
circumstances and maintained his innocence.
6. As the trial court did not find it a fit case to acquit the
accused under Section 232 Cr.P.C., he was asked to enter on his
defence and adduce evidence in support thereof. No oral or
documentary evidence was adduced by 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 appellant/accused under Section
235(1) Cr.P.C. of the offence under Section 397 IPC. However, he
has been found guilty of the offences punishable under Sections
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457, 380, 395 and 461 IPC. Hence, he has been sentenced to
rigorous imprisonment for a period of 5 years and to a fine of
₹10,000/- and in default of payment of fine to rigorous
imprisonment for one month for the offence punishable under
Section 457 IPC; to rigorous imprisonment for a period of 3 years
and to a fine of ₹10,000/- and in default of payment of fine to
rigorous imprisonment for one month for the offence punishable
under Section 380 IPC; to rigorous imprisonment for a period of 7
years and to a fine of ₹10,000/- and in default of payment of fine to
rigorous imprisonment for one month for the offence punishable
under Section 395 IPC and to rigorous imprisonment for a period of
one year for the offence punishable under Section 461 IPC. The
substantive sentences have been directed to run concurrently. Set
off under Section 428 Cr.P.C. has been allowed. Aggrieved, the
accused has come up in appeal.
8. The only point that arises for consideration in this appeal
is whether the conviction entered and sentence passed against the
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accused/appellant by the trial court are sustainable or not.
9. As per the letter dated 25/01/2025, the Superintendent,
Central Prison & Correctional Home, Kannur, has reported that
pursuant to the conviction, the appellant/accused was admitted in
the prison on 26/08/2018 and thereafter released prematurely on
26/01/2021. As per records, he had undergone 4 years 9 months and
9 days of actual imprisonment including the period of set off which
was granted. However, as the appeal requires to be heard on merits,
both sides were heard.
10. I make a brief reference to the evidence relied on by the
prosecution in support of the case. PW1, the then Secretary,
Nallurnad Service Co-operative Bank, deposed that on 08/02/1988
at 04:30 a.m., one Chacko, Deposit Collection Agent of the bank,
and another person came to his house and informed that some
people had broken into the bank. The robbers trespassed into the
bank and took away the safe in a white ambassador car. He was also
informed that when PW4 and his peon who were residing near the
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bank went to the place on hearing the noise, the robbers tried to
beat them with an iron rod and thereafter the robbers escaped in a
white ambassador car. PW1 immediately went to the house of
Muhammed, the then President of the bank, to inform him of the
theft. Both of them went to the bank and then they found the door
of the bank open. They could not see the safe inside the bank.
According to PW1, one of the keys of the bank was kept by him
and the other one was with PW3, the Accountant of the bank. The
safe of the bank could be opened only with these two keys. On
Saturday evening at 03:00 p.m, after verifying the accounts, he had
closed the safe and the bank. More than ₹5,000/- was there in the
safe in addition to the gold ornaments which had been pledged by
the customers as well as other valuable securities and documents.
On the date of the incident, there was no watchman on duty at the
bank. He informed the police and gave Ext.P1 FIS to the police. He
had identified the stolen gold ornaments before the court in S.C.
No.29/1988. The gold ornaments which were seized by the police
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and produced before the court were taken back by PW2, the
Secretary of the bank who succeeded him.
10.1. PW2 when examined deposed that the stolen gold
ornaments recovered from the accused persons were produced
before the court by the police and the same were marked as material
objects during the trial of the other accused persons in S.C.
No.29/1988. After the disposal of the case, he had filed Crl.M.P.
No.590/2003 seeking return of the items. The petition was allowed
pursuant to which he got back the ornaments from the court in his
capacity as Secretary of the bank. The gold ornaments taken back
from the court were returned to the customers concerned. He
admitted that some of the gold ornaments belonging to the
customers who had passed away or left the place and had not taken
back the ornaments were still in the custody of the bank as they had
not been claimed by the heirs of the customers. The said gold
ornaments were produced before the court and marked as MO11 to
MO14. According to PW2, MO11 to MO14 are the gold ornaments
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among the 88 items of gold ornaments which he had taken back
from the court. When the gold ornaments were released to him as
per Ext.P183 order, in compliance with the order of the court, he
submitted Ext.P181 series inventory of the gold ornaments which
contained the description of all the 88 items of gold ornaments,
their weight, the name of the customers, the gold loan numbers of
each item of gold ornaments.
10.2. PW3, Accountant cum Appraiser of the bank, deposed
that on 06/02/1988 after keeping the cash and the pledged gold
ornaments in the safe, he had closed the bank. One of the keys of
the safe and that of the bank were kept by him and the other ones
were with the Secretary of the bank. On receipt of information
regarding the theft, he had gone to the bank and then he did not see
the safe inside the bank. According to PW3, more than 750 grams
of gold ornaments and cash of about ₹5,000/- were there in the
safe. He identified MO1 as the safe of the bank. He identified the
small bags in which the gold ornaments had been kept, which were
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marked as MO15 to MO102.
10.3. In order to prove that 88 items of gold ornaments had
been pledged in the bank during the relevant period, the prosecution
relies on the testimony of PW14 to PW24, the customers who had
pledged the same. They supported the prosecution case. The
testimony of PW1 to PW3 and PW14 to PW24 would show that
there was a cash balance of ₹5,544.35/- and 88 items of gold
ornaments which were kept inside MO1 safe before the theft took
place. Exts.P2 to P180 corroborate the testimony of the said
witnesses.
10.4. PW10, Director of the bank, deposed that he was
present in the bank when the police had seized the registers
showing the details of the bonds, the pledging of the gold
ornaments as per Ext.P185 mahazar and that he is an attester to the
same. Ext.P186 mahazar was prepared by the police when the cash
book and coin war register were seized.
10.5. PW25 to PW27 are the attesting witnesses to Exts.P189
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to P191 mahazars which were prepared by the police when the gold
loan cards of the customers were seized.
10.6. To prove the incident of theft, the prosecution relies on
the testimony of PW4 and PW5. PW4, Inspector of Weights and
Measures, Dwaraka, was an eye witness to the incident. He deposed
that he was residing in a room behind the Office of Weights and
Measures, which was adjacent to Nallurnad Service Co-operative
bank. He was residing in the said building with his office peon,
namely, CW3 Prabhakaran. On 08/02/1988 at 03:30 a.m., he heard
a loud sound from the bank. He along with CW3 went to the road
side and then they saw some people trying to load a shelf into a car
bearing registration no.KLB 3342. He was able to see the persons
in the street light and the electric light in the bank. One of the said
persons who was standing near the car tried to beat and kill him
with an iron rod. In his attempt to escape the attack, he fell down
and sustained injuries on his hand. The testimony of PW4 that he
had sustained injuries is corroborated by the testimony of PW31,
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Assistant Surgeon, District Hospital, Mananthavady, who deposed
that on 10/02/1988 at 12:30 p.m., he had examined PW4 and on
examination he had seen injuries on the left elbow, right forearm
and left little finger of PW4. The wound certificate issued by PW31
has been marked as Ext.P256. PW4 further deposed that the
robbers drove away in the car with the shelf taken from the bank.
When he looked inside the bank from outside, he could see that the
doors of the bank had been broken open. He went to the house of
PW1, the Secretary of the bank and informed him of the incident.
PW4 identified the accused herein as one of the robbers involved in
the incident. However, in the cross-examination, he deposed that he
was not completely sure whether the accused was one among the
robbers he had seen on the said day.
10.7. PW5, another eye witness who was conducting a tea
shop at Dwaraka and was residing at the first floor of a shop room
with CW6 Devasia and CW7 Vijayan, deposed that on the date of
the incident, he heard CW3 Prabhakaran crying that he was being
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killed. Hearing the cries he went outside. He saw a white
ambassador car bearing registration no.3342 proceeding towards
Panamaram side with a shelf kept inside the car. There were 5 to 6
persons inside the car. He went towards Panamaram side, he saw a
jeep coming from the said side. He informed the persons in the jeep
about the bank robbery and got into the jeep. All of them proceeded
towards Kambalakkad side. However, they were not able to trace
the car and hence they informed the police.
10.8. PW34, Circle Inspector, Mananthavady, deposed that on
the date of the incident at 02:00 p.m., he had arrived at the scene of
occurrence and prepared Ext.P258 scene mahazar which would
show the indications that the bank building had been broken open
and that theft had taken place. PW34 also deposed that based on the
information received that a safe was found abandoned by the side
of the road at Nellimukku, he proceeded to the said place where he
reached by about 06:30 p.m. He found MO1 safe, MO2 series
drawers, MO3 a broken hand, MO4 pass book, MO5 cheque book,
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MO7 bunch of keys, MO8 series liver box, MO104 pickaxe,
MO106 hammer, MO103 crow bar, MO109 series two iron rods
and MO110 chisel at the said place which he seized as per Ext.P184
mahazar. PW6, an attester to the said mahazar, supports the
prosecution case.
10.9. As noticed earlier, testimony of PW14 to PW24
establishes the case that they had pledged gold ornaments in the
bank. The testimony of PW4 and PW5 would show that MO1 safe
which contained valuables kept inside the bank had been stolen on
08/02/1988 and that the safe was carried away in an ambassador car
bearing registration no.KLB 3342 by breaking open the bank
building at night and that there were six persons involved in the
robbery. As pointed out by the trial court, though the said witnesses
were extensively cross-examined by the defence counsel, nothing
was brought out to discredit their testimony regarding the
commission of robbery in the bank. However, the testimony of
PW4 and PW5 does not satisfactorily establish the identity of the
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accused involved in this case.
10.10. Now coming to the testimony of the other
prosecution witnesses examined in this case. PW7 deposed that in
the year 1988 while he was returning in a jeep after the festival in
the church with others, PW8 and PW9 along with three others
signalled to stop the jeep at 4th mile, Dwaraka, at about 03:30 a.m.
PW7 and others were informed about the incident. So they tried to
trace out the ambassador car. They failed to do so and hence they
reported the matter to the police. However, when they were
returning from the police station, they saw the ambassador car
proceeding towards Kozhikode side. They followed the car and
when they reached near the police station in Vythiri, they found that
the ambassador car had been blocked by the police. He saw about 5
to 6 persons inside the car. He also saw gold and cash kept inside
the car. But PW7 deposed that as the incident took place about 30
years back, he cannot say for sure whether the accused/appellant in
this case was one among the robbers present inside the car.
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10.11. PW8 and PW9, the other passengers in the jeep
along with PW7, also support the case of PW7. But they were also
not sure about the identity of the accused.
10.12. PW28, a police official attached to Kambalakkad
police station, deposed that on 08/02/1988, he received information
at about 04:45 a.m. that a robbery had taken place in the bank and
that the robbers with the stolen safe had escaped in a white
ambassador car bearing registration no.KLB 3342 and were
proceeding towards the Kambalakkad side. He immediately
informed the matter to the police station at Vythiri.
10.13. PW29, the Head Constable, Vythiri, deposed that
as soon as he received information about the theft, he informed the
same to the Circle Inspector over phone and thereafter the Circle
Inspector along with his team blocked the road with a wooden log.
At about 05:30 a.m., the ambassador car coming from Kalpetta
reached the spot. The car was intercepted and searched. There were
six persons inside the car. When they lifted the seat of the car, they
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found gold ornaments and coins kept in small bags wrapped in a
lungi. To ascertain whether the ornaments were gold, a goldsmith
was brought to the spot and on examination, the ornaments were
found to be gold. The Circle Inspector seized the gold and other
valuable articles and the car as per a seizure mahazar. PW29
identified the accused/appellant as one among the six persons who
were found in the car.
10.14. PW30, Sub Inspector, Vythiri, and PW32, Circle
Inspector, Vythiri, support the case deposed by PW29.
10.15. PW11 is the goldsmith who had examined the 88
items of gold ornaments that have been stolen by the accused
persons which were thereafter seized by the police. He deposed that
on examination he found that the ornaments were gold ornaments.
PW34 and PW35 are the investigating officers in this case.
11. Now coming to the question whether the prosecution has
succeeded in establishing the identity of the accused/appellant in
this case. As noticed earlier, PWs 4, 5, 7, 8 and 9 were unable to
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identify and say for sure that the accused/appellant in this case was
one among the six persons found in the car on the said day.
However, the trial court found that there was circumstantial
evidence to connect the accused with the crime. The
accused/appellant herein along with the other accused were taken
into custody on 08/02/1988 at 05:30 a.m. by PW32 and thereafter
arrested by PW34. PW32 had intercepted the accused on the basis
of the information received from Kambalakkad police station. The
testimony of PW29 and PW30 would show that six persons found
in the car with the gold ornaments and other valuables inside the car
were taken into custody on 08/02/1988 at 05:30 a.m. PW29
identified the accused as one among the persons found in the car.
PW30 deposed that there were six persons including the driver
inside the car and that the accused in this case was one among the
six persons found in the car. Therefore, there is identification of the
accused by PW29 and PW30. As rightly pointed out by the trial
court, the accused persons including the accused herein were caught
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red handed within hours of the incident with the stolen articles. No
explanation is forthcoming from the accused regarding the
possession of cash and gold ornaments of the bank. When the
accused was questioned under Section 313 Cr.P.C., he did not
furnish any explanation for the possession of the stolen articles
immediately after the theft. Though the witnesses were extensively
cross-examined, nothing was brought out to discredit their
testimony. Therefore, the trial court was right in holding that the
materials on record establish the offences charged against the
accused person. Therefore I do not find any infirmity in the findings
of the trial court calling for an interference by this Court. Thus the
appeal sans merit is dismissed.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA
JUDGE
NP
