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Kerala High Court
Binoy vs State Of Kerala on 8 April, 2026
2026:KER:30806
Crl.R.P No.4628/2007
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
WEDNESDAY, THE 8TH DAY OF APRIL 2026 / 18TH CHAITHRA, 1948
CRL.REV.PET NO. 4628 OF 2007
AGAINST JUDGMENT DATED 4/9/2007 OF THE II ADDITIONAL
SESSIONS JUDGE, KOLLAM IN CRL.APPEAL NO.648/2006 ARISING OUT
OF C.C NO.655/2004 OF THE JUDICIAL FIRST CLASS MAGISTRATE
COURT, KARUNAGAPPALLY
REVISION PETITIONERS/APPELLANTS/ACCUSED:
1 BINOY, S/O.JOSE, JOSE VILLA, VALIYAKUZHI MURI,
CHEPPAD VILLAGE
2 RAJESH, S/O.THANKAPPAN PILLAI, KALAPURACKAL
PADEETTATHIL, NANGYARKULANGARA MURI,
CHIMGOLI VILLAGE.
BY ADV SRI.A.C.DEVY
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SMT.ANIMA.M, PUBLIC PROSECUTOR
ADV.DEVIKA.K.R (AMICUS CURIAE)
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 06.04.2026, THE COURT ON 08.04.2026 DELIVERED THE
FOLLOWING:
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2
ORDER
Accused Nos.1 and 2 in C.C No.655/2004 on the files of the
Judicial First Class Magistrate Court, Karunagappally, are the revision
petitioners herein. They were convicted by the learned Magistrate for
the commission of offence under Section 394 r/w Section 34 I.P.C and
sentenced to simple imprisonment for three years, and fine Rs.1,000/-
each. Though the petitioners challenged the aforesaid verdict in
appeal, the learned Additional Sessions Judge-II, Kollam, who
considered the above appeal, declined to interfere with the findings of
the learned Magistrate. Accordingly, the appeal was dismissed,
confirming the conviction recorded and sentence awarded by the Trial
Court. Aggrieved by the above concurrent verdicts of the Courts
below, the petitioners are here before this Court with this revision
petition.
2. Since there was no representationfrom the part of the
revision petitioners on repeated posting dates, notices were issued to
them intimating the adjournment of the case and informing them that
the case will be decided in their absence, if there is no representation
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on the adjourned posting date. The notice issued to the first
petitioner was returned with the endorsement 'not known'. Notice to
the second petitioner was returned with the endorsement 'addressee
deceased'. In the above circumstances, Adv.Mrs.Devika.K.R was
appointed as Amicus Curiae, to represent the revision petitioners.
3. Heard the learned Amicus Curiae representing the revision
petitioners, and the learned Public Prosecutor representing the State
of Kerala.
4. The prosecution case is that on 24.11.2003 at about 5:45
p.m, the petitioners, along with the third accused, came in a
motorbike and inflicted voluntary hurt by hitting on the neck of PW1,
who was walking through the road at Changankulangara in Ochira
Panchayat, and thereafter snatched the gold chain worn by her. The
first petitioner was said to be the person who had been driving the
motorbike, and the second petitioner is the person who physically
assaulted and robbed the gold chain belonging to PW1.
5. Though PW1 and her husband (PW2) had complained
before the Ochira Police, no case was registered at that time.
However, after about 3½ months, the first petitioner is said to have
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confessed the commission of the crime to PW7, the Circle Inspector of
Police, Mannar, while the petitioners were being interrogated in
connection with Crime No.57/2004 of Mannar Police Station. On the
basis of the information so received, PW7 recovered MO1 gold chain,
which was the stolen item involved in this case, from PW5, a jewellery
shop owner, to whom the first petitioner sold the above gold chain.
PW1 and PW2 identified the petitioners as well as MO1 gold chain.
The case was then transferred to the Ochira Police Station, and a
crime was registered in connection with the aforesaid incident. After
the completion of the investigation, PW6, the S.I of Police, Ochira laid
the final report before the learned Magistrate.
6. Among the seven prosecution witnesses examined before
the Trial Court, PW1, PW2 and PW5 testified before the Court about
the involvement of the petitioners in the commission of the crime.
PW5 stated in unequivocal terms about the sale of MO1 gold chain to
him by the first petitioner herein. PW7, the Circle Inspector of Police,
Mannar, gave evidence about the information received from the first
petitioner during custodial interrogation about the sale of MO1 gold
chain by him to PW5. PW1 and PW2 identified MO1 gold chain after
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the recovery of the said item from PW5, on the basis of the
information received from the first petitioner. PW1 and PW2 also
identified the petitioners as two among the three persons, who
robbed MO1 gold chain from PW1 on 24.11.2003, while they were
walking through the road at Changankulangara in Ochira. The
evidence tendered by PW1, PW2, PW5 and PW7 in the above regard,
remained unshattered despite serious cross-examination. It is by
relying on the aforesaid evidence that the learned Magistrate arrived
at the finding that the prosecution successfully established the charge
under Section 394 I.P.C framed against the petitioners. The Appellate
Court made re-appraisal of the aforesaid evidence, and concurred with
the findings of the learned Magistrate. There is absolutely no reason
to interfere with the aforesaid findings of the Courts below in exercise
of the revisional powers of this Court.
7. The learned Amicus Curiae, by relying on the decisions of
the Hon'ble Supreme Court in Subramanya v. State of Karnataka
[2022 SCC OnLine 1400] and Ramanand @ Nandlal Bharati v.
State of Uttar Pradesh [2022 SCC OnLine 1396], argued that
the evidence adduced by the prosecution regarding the recovery of
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MO1 gold chain, cannot be acted upon since the Investigating Officer
did not procure the presence of two independent witnesses while
recording the statements of the petitioners, and proceeding for the
recovery of MO1 from PW5. It is true that the evidence adduced by
the prosecution does not reveal that MO1 was recovered in the
presence of two independent witnesses. But, at the same time, it is
not possible to discard the evidence adduced by PW5 about the sale
of MO1 gold chain to him by the first petitioner. So also, the evidence
adduced by PW1 and PW2, identifying the petitioners as the persons
who robbed MO1 gold chain from PW1, cannot be eschewed. Thus, it
has to be stated that the prosecution could establish the charge
levelled against the petitioners, even if the admissible portion of the
statement given by the first petitioner to PW7 during custodial
interrogation is ignored. Therefore, the shortcoming in the process of
recovery of MO1 due to the absence of two independent witnesses,
will not affect the credibility of the prosecution case, in view of the
evidence tendered by PW1, PW2 and PW5, who could be termed as
sterling witnesses.
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8. The punishment awarded by the Trial Court, and upheld
by the Appellate Court, is also perfectly reasonable and
commensurate with the gravity of the offence involved in this case.
Therefore, there is absolutely no scope for unsettling the findings of
the Courts below in this revision proceedings. Needless to say, the
revision petition is devoid of merits.
In the result, the revision petition is hereby dismissed.
This Court places on record its appreciation for the assistance
rendered by the learned Amicus Curiae Adv.Mrs.Devika.K.R, in
addressing the various legal aspects on this matter.
(sd/-)
G. GIRISH, JUDGE
jsr
