Sunil @ Tites @ Sunil Tites vs State Of Kerala
2025 Latest Caselaw 1758 Ker

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.
                           ......................................
                            Crl.R.P.No.477 of 2016
                    .........................................................
                    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

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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

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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

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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

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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

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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

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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

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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

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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

Class Magistrate Court-I, Parappanangadi and as confirmed in Crl.Appeal No.55 of 2012 by the Additional Sessions Court-III, Manjeri, is upheld.

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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