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VIJAYAKUMAR, C.NO.355 versus STATE OF KERALA, REPRESENTED BY THE

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VIJAYAKUMAR, C.NO.355 v. STATE OF KERALA, REPRESENTED BY THE - CRL A No. 1271 of 2006(C) [2007] RD-KL 2327 (31 January 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL A No. 1271 of 2006(C)

1. VIJAYAKUMAR, C.NO.355,
... Petitioner

Vs

1. STATE OF KERALA, REPRESENTED BY THE
... Respondent

For Petitioner :SRI.P.V.VIJAYAKUMAR

For Respondent :PUBLIC PROSECUTOR

The Hon'ble MR. Justice V.RAMKUMAR

Dated :31/01/2007

O R D E R

V. RAMKUMAR, J.

CRL.APPEAL Nos.1271 & 1361 of 2006 Dt. JANUARY 31, 2007

JUDGMENT

Accused Nos.2 and 1 respectively in S.C.No.776/2004 on the file of the Addl. Sessions Court (Fast Track-II), Alappuzha, are the appellants in these appeals preferred from the Central Prison, Thiruvananthapuram.

2. The case of the prosecution can be summarised as follows:- On 29.6.2004at about 7 p.m. accused Nos.1 and 2, in furtherance of their common intention to do so abducted PW.1 (Devaraj) in his own Santro car bearing registration No,.KL4H-4403 while PW.1 was attending a call over his mobile phone after parking his car in front of a tyre shop on the western side of the M.C.Road at Thittamel Muri in Ward No.11 of Chengannur Municipality, by forcibly entering the car and threatening PW.1 by holding a sword-stick against his neck. PW1 was compelled to drive the car as directed by the accused and when the car reached the gravel road near Puthenveettilpadi Railway over- bridge, the accused persons robbed PW.1 of cash worth Rs.20,000/- and MO.1 mobile phone worth Rs.3000/- and MO.5 gold ring. The 1st accused thereafter took control over the vehicle and the 2nd accused intimidated PW.1 with a sword- stick. The car suddenly fell into a ditch by the side of the Haripad-Veeyapuram road and thereupon the accused abandoned the vehicle and made good their escape. The accused have, thereby committed offences punishable under Crl..A.No.1271 & 1361/2006 2 secs.364 and 392 read with sec.34 IPC.

3. On the accused pleading not guilty to the charge framed against them by the court below for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 21 witnesses as PWs.1 to 21 and got marked 32 documents as Exts.P1 to P32 and 16 material objects as M.Os.1 to 16.

4. After the close of the prosecution evidence, the accused were questioned under sec.313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their innocence.

5. The 1st accused had the following to submit before court:- On 29.6.2004 while he was returning home from the temple after the evening pooja, he saw a vehicle lying capsized. The persons in charge of the vehicle told him and others that if they could rescue the vehicle, they will be paid Rs.1000/-. Thereupon himself and 3-4 others took out the vehicle from the ditch. The person who had promised the reward and who had introduced himself as an LIC Officer was fully drunk. After the accused and others had salvaged the vehicle, the above person refused to pay the reward. Thereafter PW.2 Mohanlal came and promised the accused and others that he would get them the money which was promised. PW.2 then had a conversation with the LIC officer. When PW.2 came back the accused insisted that PW.2 should mediate in the matter. Thereafter an altercation ensued between the accused and PW.2. The accused then went home. At about 11.30 in the night, the S.I. of Police, Veeyapuram Crl..A.No.1271 & 1361/2006 3 came to his house and took him into custody asking whether he would dare to manhandle the police. He was kept in the police lock-up for two days. Before he was produced in court, he had been taken to the Mannar Police Station and was brutally assaulted. He met the 2nd accused only from there. He was later taken to the Mavelikkara Government Hospital and later produced before the court. He was asked not to make any complaint to the magistrate promising that whatever needful would be done by the police. He had been in the custody for 3-4 days. He is innocent.

6. The 2nd accused had the following to submit before court:- He is residing at Amara in Ward No.8 of Madappally Panchayat for the past 8 years. He is an employee in the temple. On the date of the occurrence after the day's work he had got down at Perunna bus-stand. While so, Rasheed, C.I. of Mannar, and four policemen by name Sreedharan, Nazar, Vijayan and Joseph took him in the police jeep to the police station. He was told that they wanted to discuss something about the case for which purpose they have to go to the police station. The Mannar Koratti Mahadeva temple is behind the office of the Circle Inspector of Police, Mannar. He has been working in the temple on daily wages for the past several years. On days on which he has no work in the temple, he goes for painting work. Since he has a handicap on his right leg, he gets painting work executed by employing persons. It was by engaging labourers that he executed painting work in the house where the C.I. of Police, Mannar was residing on lease. There was a dispute between him and the Circle Inspector with regard to the wages payable to the workers. An altercation Crl..A.No.1271 & 1361/2006 4 ensued. PW.11 Selvarajan is a political worker who also works as the agent of an LIC Officer. There was political enmity between him and the accused. After he was taken into custody, the said Selvarajan had also come there in the company of the Circle Inspector. Both of them were falsely implicating the accused with a view to settle their score with the accused. This is a false case foisted on him. So far, he has not been an accused even in a petty case. He is innocent.

7. Since the Sessions Judge did not consider it a fit case for recording an order of acquittal, the accused were called upon to enter on their defence and to adduce any evidence which they might have in support thereof. The accused examined two witnesses as DWs.1 and 2.

8. The learned Addl. Sessions Judge, after trial, as per judgment dt.9.3.2006 acquitted the appellants of the offence punishable under sec.364 IPC, but convicted them for the offence punishable under sec.392 IPC. For the above conviction each of the appellants was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5000/- and, on default to pay the fine, to suffer simple imprisonment for three months. It is the said judgment which is assailed in these appeals.

9. I heard Adv. Sri Nidhi Balachandran, the learned counsel who defended the 1st accused (appellant in Crl.A.1361/2006) and Adv.Sri P.V.Vijayakumar, the learned counsel who defended the 2nd accused (appellant in Crl.A.1271/06) on State Brief, and Adv. Sri K.S.Sivakumar, the learned Public Prosecutor who defended the State. Crl..A.No.1271 & 1361/2006 5

10. The only point which arises for consideration in these appeals is as to whether the conviction entered and the sentence passed against the appellants are sustainable or not. THE POINT

11. PW.1 who is the owner of the Santro car is a Development Officer of the LIC at Chengannur. He was the person who was allegedly abducted in the car. PW.2 was the Head Constable who was present at the time of occurrence. PW.3 is a person residing near the spot where the vehicle had capsized. He had studied with the 1st accused in the same school from 1989 to 1993 and was watching the Asianet news in the television when the Santro car capsized. PWs.4 and 5 are the other witnesses to the occurrence. But both of them turned hostile to the prosecution. PW.6 is an attestor to Ext.P2 scene mahazar. PW.7 is an attestor to Ext.P3 recovery mahazar pertaining to the purchase of cloth. He was an employee in a jeans shop. PW.8 is another employee of the jeans shop. He proved Ext.P4 bill for sale of dress to the 1st accused. PW.9 is the father of PW.10 and he turned hostile to the prosecution. He, however, admitted that his son Aneeshkumar (PW.10) had pawned a gold ring as evidenced by Ext.P5 gold loan receipt for Rs.1000/-. PW.10 is the son of PW.9 who had pledged MO.5 gold ring at Kannat Arun Financiers at Chengannur. This witness was, however, given up by the prosecution. But the confession made by A2 to PW.21 was that A2 had pledged the gold ring at Chengannur through PW.10 and accordingly A2 led PW.21 to the shop of PWs.9 and 10 and PW.21 seized MO.5 gold ring from PW.12 of Arun Fnanciers as per Ext.P7 mahazar. PW.11 is a witness to Ext.P6 Crl..A.No.1271 & 1361/2006 6 seizure mahazar for the issue of Ext.P5 receipt dt. 30.6.2004 for Rs.1000/- issued by PW.10. PW.12 is the clerk in Arun Financiers where PW.10 had pawned MO.5 gold ring. PW.13 is the appraiser in Arun Financiers. It was he who weighed MO.5 gold ring. He is an attestor to Ext.P7 seizure mahazar as per which Ext.P8 gold loan register was seized. PW.14 is a salesman in a beverages shop. He is an attestor to Ext.P10 mahazar as per which the 1st accused had purchased liquor from the said shop. PW.15 is a salesman in a petrol pump at Mannar from where the 1st accused had purchased petrol for Rs.500/-. PW.15 is an attestor to Ext.P11 recovery mahazar. PW.16 is an attestor to Ext.P12 mahazar for the seizure of M.Os.2 to 4 produced by PW.1. PW.17 is a witness to Ext.P13 mahazar regarding the Santro car. PW.18 is the Sub Inspector of Veeyapuram Police Station who recorded Ext.P1 F.I.Statement and who registered the F.I.R. He seized M.O.6 sword-stick from the bushes near the place of occurrence. PW.19 was the salesman in Shebins Bakery at Haripad. He is an attestor to Ext.P14 mahazar as per which one soda bottle made of plastic and three disposable glasses were seized. PW.20 is an attestor to Ext.P15 mahazar pertaining to the mobile phone, dress etc. PW.21 was the Circle Inspector who conducted the investigation and laid the charge.

12. Assailing the conviction recorded against them, the respective counsel appearing for accused Nos.1 and 2 made the following submissions before me:- The testimony of PWs.1 and 2 is full of contradictions. PW.1 was not familiar with both accused Nos.1 and 2. Still no test identification parade was Crl..A.No.1271 & 1361/2006 7 conducted by the investigating officer. The identification of accused Nos.1 and 2 by PW.1 from the police station is of no avail. The specific version given by both accused Nos.1 and 2 is supported by the evidence of PW.1. PW.1 did not even make enquiries about the model of the mobile phone allegedly lost by him. It is unlikely that the 1st accused would have purchased liquor from a liquor shop situated near the vicinity of the police picket. If the accused persons had approached PW.1 with deadly weapons as he would have it, one would have expected PW.1 to use his own mobile phone to call the police. Instead, he claims to have made use of a public call office. Non-examination of PW.10 Aneeshkumar is fatal to the prosecution case. PW.2 would admit that he did not tell the investigating officer about the recovery of the sword-stick. According to the prosecution it is a highway robbery between sunset and sunrise. But the time of occurrence is 6.30 p.m. which is before sunset. The alleged intimidation and abduction took place on a P.W.D. road. If so, there cannot be any highway robbery. While the case of PW.1 in Ext.P1 F.I.Statement was that the accused demanded him to take out all his belongings failing which they would kill him, from the witness box he came out with a new version to say that the accused threatened him to make him into pieces and put them on the railway track. While PW.1 would say that it was the 1st accused who took the cash worth Rs.10,000/- and the mobile phone, Ext.P1 F.I.Statement says that it was the 2nd accused who took the same. According to PW.1, immediately before the occurrence he had received a phone call over his mobile phone. This could have been proved by taking out a print out through the server. Even though Crl..A.No.1271 & 1361/2006 8 PW.1 would say that he did not know the name of the temple, in Ext.P1 F.I.Statement the name of the temple is clearly given. If PW.1 was administered liquor by force as he would have it, the same could have been proved by subjecting him to medical examination for the smell of the alcohol. That was not done. According to PWs.2 and 3, the car which they saw was a Maruthi car. But according to the prosecution it was a Santro car. Although PW.2 would say that the 1st accused was his neighbour, he confessed that his acquaintance with the 1st accused was only from the place of occurrence. PW.3 says that PW.1 did not accompany PW.2 for making a telephone call. But PW.2 would say otherwise. PW.1 has admittedly not reported the loss of his mobile phone to the service provider. The prosecution has not satisfactorily established the guilt of the accused beyond reasonable doubt. The conviction recorded by the court below overlooking the above vital aspects cannot be sustained.

13. I am afraid that I cannot agree with the above submissions. With regard to the contention that PW.1 had no previous acquaintance with accused Nos.1 and 2 prior to the occurrence and that his dock identification of accused Nos.1 and 2 for the first time in court without there being any test identification parade conducted by the police is valueless, the evidence in this case shows that accused Nos.1 and 2 were inside the Santro car of PW.1 along with PW.1 for nearly three hours. So, PW.1 had every opportunity to see the features of accused Nos.1 and 2 and memorize them. A person who had been their captive in his own car for nearly three hours will be the last person to forget their face and other features. Regarding PW.2 the Head Constable, he has deposed that Crl..A.No.1271 & 1361/2006 9 he knows the 1st accused even prior to the occurrence. PW.3 is a schoolmate of the 1st accused and both belong to the same place. Of course, there are minor contradictions, omissions and exaggerations in the testimony of PWs.1 to 3, but such contradictions, exaggerations and omissions are not in respect of vital aspects of the prosecution case and they do not have the tendency of causing any dent to the evidence of the above witnesses. PW.1 who was driving his Santro car along the M.C.Road suddenly got a call over his mobile phone. He, therefore, pulled up the vehicle by the side of the road and was talking into his mobile phone. It was at this juncture that the two accused persons of whom A2 was armed with a sword-stick appeared there. It was a desolate place. After getting into the car the accused persons forced PW.1 to drive the car. This was virtually at dagger's point. PW.1 was taken from the State Highway to the National Highway and then to the PWD Road. If the car had not fallen into a ditch, PW.1 would not have been alive to give evidence. It was only after seeing PW.2 the Head Constable that PW.1 regained his mental balance. Liquor had forcibly been administered to PW.1 who was thus in a perplexed state and he was under the grips of fear.

14. It is true that the prosecution has not examined PW.10, it is trite law that the prosecution need not examine all the witnesses, especially when the public prosecutor in charge of the case is not sure whether a particular witness will support the prosecution or not. PW.9 who is the father of PW.10 was examined by the prosecution. Although he turned disloyal to the prosecution, he did support the prosecution by saying that his son (PW.10) had pawned MO.5 Crl..A.No.1271 & 1361/2006 10 gold ring for availing a loan of Rs.1000/-. MO.5 was a stolen ring. No father will admit that his son was hand-in-glove with robbers. PW.20 is the owner of the house which was let out to the 1st accused.

15. The abduction of PW.1 from M.C.Road (at Vellavoor) which is a State Highway, according to PW.1, took place at 7 p.m. It was without his consent and in order to commit theft of the car and rob him of his personal belongings after putting him in fear of instant death. The evidence of PW.1 is amply corroborated by the evidence of PWs.2 and 3 and the recovery effected by PW.21. It was based on the confession of the 1st accused that M.O.7 series of currency notes were recovered by PW.21 as per Ext.P14 mahazar. Similarly, M.O.1 mobile phone and MOs.9 to 13 dress were recovered as per Ext.P15 mahazar. MO.5 sword-stock was recovered pursuant to Ext.P24 confession given by the 2nd accused.

16. DW.1 is a conductor in a private bus who claims to have seen the 2nd accused taken by a police constable in an autorickshaw from the Perunna private bus stand. DW.2 was also examined for the said purpose. The trial Judge who had the unique advantage of seeing the witnesses and assessing their credibility was inclined to fully believe the testimony of PWs.1 to 3 and was not inclined to accept the version given by DWs.1 and 2. No sort of oblique motive was attributed to these witnesses so as to falsely implicate the accused persons. The trial Judge has clearly noted that DWs.1 and 2 examined to show that the 2nd accused was not arrested as alleged by the prosecution, but was taken into custody from the Perunna bus stand were tutored witnesses and that Crl..A.No.1271 & 1361/2006 11 no reliance can be placed on the testimony of DWs.1 and 2. In the light of the credible evidence let in by the prosecution, there was acceptable evidence in support of the highway robbery committed by both the accused persons. The conviction was rightly entered against the appellants by the court below and I do not find any infirmity in the appreciation of oral evidence by the trial Judge. The conviction recorded under sec.392 IPC does not, therefore, warrant any interference by this court.

17. The sentence passed against the appellants also cannot be said to be harsh or disproportionately severe, having regard to the daring manner in which PW.1 was taken under duress and robbed of his belongings. As mentioned earlier, if the Santro car had not fallen into a ditch, the accused persons would have fully accomplished their design and PW.1 would not have been alive to narrate the traumatic experience which he was subjected to. I do not find any good ground to interfere with the sentence imposed on the appellants as well. The result of the foregoing discussion is that, these appeals are devoid of any merit and are accordingly dismissed confirming the conviction and the sentence passed against the appellants.

(V.RAMKUMAR, JUDGE)

mt/- Crl..A.No.1271 & 1361/2006 12

V. RAMKUMAR, J.

CRL.A.Nos.1271 & 1361/06

JUDGMENT

31.1.2007


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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