KUNJUMON @ UNNIversusSTATE OF KERALA

                         [2012] 9 S.C.R. 1032


A                       KUNJUMON @ UNNI
                                  v.
                         STATE OF KERALA
                  (Criminal Appeal No. 38 of 2009)
                        NOVEMBER 21, 2012
B
      [SWATANTER KUMAR AND MADAN B. LOKUR, JJ.]

         PENAL CODE, 1860:

c         ss.397 and 302 - Accused while committing robbery,
    causing injuries on head of a lady of 90 years, which resulted
    in her death - Held: In view of the facts that the accused
    dragged down a frail old lady of 90 years from her cot and
    caused injuries on her head with a wall clock, it cannot be said
    that he did not intend the death of the victim or even did not
0
    know that his actions would result in her death - Courts below
    rightly convicted and sentenced the accused ulss 397 and
    302.

        s. 449 - House trespass in order to commit offence
E punishable with death - Accused while committing robbery
    caused injuries to an old lady of 90 years, which resulted in
    her death - Held: Admittedly, accused had gone to the
    targeted house to commit robbery and not to kill any body -
    He is, therefore, acquitted of the offence punishable u/s 449.
F
        /DENT/FICA TION!TEST /DENT/FICA TION PARADE:

       Identification in court of an accused of robbery by victim
  of robbery - No TIP conducted - Held: In the instant case, the
  witness was the victim of robbery - She came face to face with
G the threat and intimidation by accused - The entire traumatic
  sequence of events would have been clearly etched in her
  memory - The evidence of such a victim of a crime must be
  placed on a somewhat higher pedestal, in terms of the

H                               1032
     KUNJUMON @ UNNI v. STATE OF KERALA                     1033


credibility attached to it, than the evidence of any other witness   A
- "Proper administration of justice" should include not only the
"life and liberty of an accused" but also the issues of
victimology and the treatment of victims - Therefore, absence
of the TIP makes no difference to the case of the prosecution
or the identification of the accused - Criminal law.                 B

     EVIDENCE:

     Testimony of a child witness - Held: The evidence of the
witness, who was of 11 years at the time of incident, was
recorded after a lapse of six years, and, by then, she was no        C
longer a 'child witness' - That apart, her evidence is clear and
unambiguous and nothing adverse could be elicited during
her cross-examination.

     The appellant along with another accused 'JJ' was               o
prosecuted for committing robbery in the house of PW-1
and causing death of an inmate of the house, a 90 years
old lady. The prosecution case was that while 'JJ' stood
guard near the house, the appellant entered the house
of PW-1, caught hold of his 11 year old daughter (PW-2),             E
threatened to kill her and robbed her of her jewellery. The
appellant then entered the bed room of 90 years old
grand-mother of PW-2, and when she raised alarm, pulled
her down from the cot and beat her on the head with a
wall clock and robbed her of her jewellery. The victim
                                                                     F
succumbed to her injuries in the hospital on the 9th day
of the incident. The trial court convicted and sentenced
the appellant u/ss 302, 397 and 449 IPC. 'JJ' was
convicted and sentenced u/s 411 IPC. The High Court
acquitted 'JJ', but upheld the conviction and sentence of
the appellant.                                                       G

    In the instant appeal, it was contended for the
appellant that since a TIP was not conducted, the
evidence of PW-2 could not be relied upon; that the
evidence of PW-2, as a child witness should be carefully             H
    1034   SUPREME COURT REPORTS                [2012) 9 S.C.R.

A scrutinized; and that the appellant had no intention to
  murder the deceased and, therefore, his conviction for an
  offence punishable u/s 302 was improper.

        Partly allowing the appeal, the Court

B       HELD:

    Not holding a TIP:

       1.1 The sum and substance of the various decisions
C is that the failure to hold a TIP is not fatal to the case of
  the prosecution, but the trial judge will need to be
  circumspect in accepting the identification of an accused
  by a witness in court if the accused is a stranger to the
  witness. If there is no substantive evidence against an
  accused, a TIP will not assist the prosecution. [para 20
0 and 25] [1042-B; 1043-C]

       Sk. Hasib v. State of Bihar, AIR 1972 SC 283; Vaikuntam
  Chandrappa v. State of Andhra Pradesh, AIR 1960 SC 1340;
  Rameshwar Singh v. State of J & K, 1972 (1) SCR 627 =
E (1971) 2 SCC 715; Budhsen v. State of Madhya Pradesh,
  1971 (1) SCR 564 = (1970) 2 SCC 128; Ma/khansingh v.
  State of Madhya Pradesh, 2003 (1) Suppl. SCR 443 = (2003)
  5 SCC 746; Vijay@ Chinee v. State of Madhya Pradesh,
  2010 (8) SCR 1150 = (2010) 8 SCC 191; State of Himachal
F Pradesh v. Lekh Raj, 1999 (4) Suppl. SCR 286 = (2000) 1
    sec 247 - referred to.
        Bikau Pandey v. State of Bihar, 2003 (6) Suppl. SCR
    201 = AIR 2004 SC 997 and State of Rajasthan v. Kishore,
G 1996 (2) SCR 1103 =AIR 1996 SC 3035 - cited
       1.2 In the instant case, PW-2 is not an ordinary
  witness - she is a victim of the crime; she was directly at
  the receiving end of the actions of the appellant and came
  face to face with the threat and intimidation by the
H appellant. The evidence of such a victim of a crime must
     KUNJUMON @ UNNI v. STATE OF KERALA                  1035


be placed on a somewhat higher pedestal, in terms of the         A
credibility attached to it, than the evidence of any other
witness. "Proper administration of justice" should include
 iot only the "life and liberty of an accused" but also the
issues of victimology and the treatment of victims. PW-2
narrates the incident and says that she saw the appellant        B
for two minutes. The entire traumatic sequence of events
would have been clearly etched in her memory. She
identifies the appellant in court, but no question is put to
her in this regard in her cross-examination. It is quite clear
from the evidence of PW- 2, the absence of any                   c
meaningful cross-examination, the evidence given by the
other witnesses and the recovery of gold ornaments from
the possession of the appellant that the absence of the
TIP makes no difference to the case of the prosecution
or the identification of the appellant. [para 26-29) [1043-
                                                                 0
D-G; 1044-8, D-E]
(ii) Testimony of a child witness:

      1.3 It is true that PW-2 was about 11 years of age
when the incident took place. However, her testimony             E
was recorded after a lapse of 6 years. She was, by then,
no longer a "child witness". That apart, her evidence is
clear and unambiguous and nothing adverse could be
elicited during her cross-examination. [para 30) [1044-F-
G]                                                               F
(iii) Murderous intent of the appellant:
     2.1 Looking to the overall facts of the case, there is
no reason to disagree with the concurrent view of the trial
court and the High Court that the appellant is guilty of         G
murder. In view of the facts that a frail old woman aged
about 90 years was dragged down from her cot and
beaten on the head by the appellant with a wall clock, it
cannot be said that he did not intend the death of the
victim or even did not know that his actions would result        H
    1036    SUPREME COURT REPORTS                 [2012] 9 S.C.R.


A in her death. [para 31] [1044-H; 1045-A-B]
      2.2 However, it seems quite clear, and this was also
  the case of the prosecution, that the appellant had gone
  to the house of the complainant for the purpose of
  committing a robbery. He did not go for the purpose of
8
  or with the intention to kill anybody. It is true that he killed·
  the victim, but the house trespass was for the purpose
  of committing a robbery and not for the purpose of
  committing an offence punishable with death. Under the
  circumstances, it would not be proper to convict the
C appellant of an offence punishable u/s 449 of the IPC.
  [para 32] [1045-C-D]

        2.3 On the facts of the case, both the trial court and
    the High Court were right in convicting the appellant of
o   offences punishable u/ss 397 and 302 IPC. However, as
    no case has been made out for convicting him of an
    offence punishable u/s 449 IPC, he is acquitted of the
    said charge. [para 1] [1037-C-D]
                         Case Law Reference:
E
     AIR 1972 SC 283                cited                para 15
     2003 (6) Suppl. SCR 201        cited                para 15
     1996 (2) SCR 1103              cited                para 15
F    AIR 1960 SC 1340               referred to          para 20
     1972 (1) SCR 627               referred to          para 21
     1971 (1) SCR 564               referred to          para 21
G    2003 (1) Suppl. SCR 443        referred to          para 22
     2010 (8) SCR 1150              referred to          para 23
     1999 (4) Suppl. SCR 286        referred to          para 23

H
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
     KUNJUMON @ UNNI v. STATE OF KERALA                      1037


No. 38 of 2009.                                                       A

    From the Judgment & Order dated 30.10.2007 of the High
Court of Kerala at Ernakulam in Crl. A. No. 835 of 2004 (C).

     Purnima Bhar for the Appellant.
                                                                      B
     Liz Mathew, Sana Hasmi for the Respondent.

     The Judgment of the Court was delivered by

      MADAN B. LOKUR, J. 1. The question before us is
whether, in the absence of a Test Identification Parade (TIP for      C
short), the evidence of a child witness should have been
accepted for convicting the appellant. In our opinion, on the facts
of this case both the Trial Court and the High Court were right
in convicting the appellant for offences punishable under
Section 397 (robbery or dacoity, with attempt to cause death          D
or grievous hurt) and Section 302 (punishment for murder) of
the Indian Penal Code. However, no case has been made out
for convicting the appellant for an offence punishable Section
449 (house trespass in order to commit offence punishable with
death) of the IPC.                                                    E

The facts:

     2. On 20th October 1997, the appellant and Jose Joseph
came to the residential premises of PW-1 Jose son of Anthony
at about 4.30 p.m. with the common intention of committing            F
robbery. While Jose Joseph stood guard near the house, the
appellant made an entry and came upon PW-2 Lidiya daughter
of PW-1 Jose son of Anthony, who was then aged about 11
years. Thereupon he caught hold of her neck, threatened to kill
her and then robbed her of her gold chain and two gold ear            G
studs.

     3. Thereafter, he entered one bed room in the house and
attempted to rob Lidiya's grandmother Annamma, aged about
90 years of her ornaments. When Annamma raised an alarm               H
    1038    SUPREME COURT REPORTS                 (2012] 9 S.C.R.


A the appellant pulled her down from the cot on which she was
  lying and beat her on the head with a wall clock. He then robbed
  her of her gold chain weighing about 5.500 grams by breaking
  it from her neck and also took two imitation bangles from a bag
  kept inside the almirah in the room. The appellant then went
B away from the house.

       4. Upon the departure of the appellant and Jose Joseph
  from the scene of crime, Lidiya went to the school where she
  learnt dancing from her father and informed him of the incident.
  They both rushed back to the house along with some friends
C and on discovering Annamma's condition, she was first taken
  to Kanjirappally Government Hospital and then to the Kottayam
  Medical College Hospital for treatment. Unfortunately she
  passed away on 29th October 1997.

D        5. On a complaint having been lodged of the robbery, the
    police investigated the case and during the investigations, on
    24th October 1997, the Investigating Officer PW-13 T.A. Salim
    recovered the stolen articles at the instance of the appellant.

E        6. On conclusion of investigations, a challan was filed and
    the appellant was charged with offences punishable under
    Section 449 of the IPC, Section 397 of the IPC and Section
    302 of the IPC. Jose Joseph was also similarly charged but
    the Trial Judge found him guilty of an offence punishable under
    Section 411 of the IPC.
F
        7. Both the convicts filed appeals in the High Court. While
    the appeal filed by Jose Joseph was accepted by the High
    Court, the appeal of the appellant was rejected and his
    conviction and sentence upheld.
G
         8. We are, therefore, concerned only with the appeal filed
    by the appellant.

    Decision of the Trial Court:

H       9. The Trial Judge found from the medical evidence given
     KUNJUMON @ UNNI v. STATE OF KERALA                    1039
            [MADAN B. LOKUR, J.]

by PW-10 Dr. V.P. Rajan, Civil Surgeon in the Kanjirappally         A
Government Hospital that Annamma was aged about 90 years.
She had an injury on her forehead above the left eyebrow with
suspicion of a fracture, edema of both eyelids and lacerated
injury on right side of the forehead. According to him, the
injuries could have been caused by a wall clock as alleged by       B
the prosecution. The Trial Judge also considered the medical
evidence of PW-11 Dr. Babu, Assistant Professor of Forensic
Medicine, Kottayam Medical College that Annamma died on
29th October 1997 as a result of the head injuries sustained
by her. The Trial Court found that the evidence of both the         c
doctors was not challenged and proved that Annamma died
due to the violence inflicted on her including being hit with a
wall clock.

    10. The Trial Judge also found no reason to disbelieve the
consistent testimony of Jose son of Antony and Lidiya who was       D
an eye witness to the incident.

     11. In addition, the Trial Court relied on the testimony of
PW-3 Leelamma, a neighbour of Jose son of Antony. Although
this witness had turned hostile, she admitted having seen the       E
appellant on the fateful day about 100 meters away from the
house of Jose son of Antony. She had seen the appellant earlier
also and could, therefore, recognize him. The Trial Judge also
relied on the evidence on PW-5 Thankuppam, who was
residing close by and had also seen the appellant in the vicinity   F
of the house of Jose son of Antony. This witness had also
turned hostile, but confirmed seeing the appellant and that he
knew the appellant. It appears that this witness had turned
hostile on the issue of having seen both the appellant and Jose
Joseph together.
                                                                    G
    12. The Trial Judge also saw no reason to disbelieve the
Investigating Officer who confirmed the recovery of the gold
ornaments at the instance of the appellant on 24th October
1997.
                                                                    H
    1040    SUPREME COURT REPORTS                 [2012] 9 S.C.R.


A       13. The principal contention of the appellant before the
  Trial Judge was that since he was a total stranger to Lidiya,
  she could not have recognized him in the Court and in the
  absence of a Tl P, reliance on her identification of the appellant
  could not be considered safe. The Trial Judge rejected this
B contention on the ground that there was sufficient other
  evidence to show the presence of the appellant in the vicinity
  of the house of Jose son of Antony and in view of the
  corroboration from other witnesses, there was no reason to
  doubt Lidiya.
c      14. Accordingly, the Trial Court convicted the appellant and
  sentenced him to 10 years imprisonment and fine for an offence
  punishable under Section 449 of the IPC, imprisonment for 7
  years and fine for an offence punishable under Section 397 of
  the IPC and for life for an offence punishable under Section 302
D of the IPC. It was directed that the sentences would run
  concurrently.

    Decision of the High Court:

E      15. Feeling aggrieved, the appellant preferred Criminal
  Appeal No. 835 of 2004 in the High Court of Kerala. By its
  Judgment and Order dated 30th October 2007, the High Court
  rejected the appeal and upheld the conviction of the appellant.
  The High Court relied upon the evidence of the witnesses
F mentioned above to uphold the conviction.

        16. Before the High Court also the contention urged by the
  appellant was that since a TIP was not conducted, it would not
  be safe to rely upon the testimony of Lidiya. However, the High
  Court rejected this contention by holding that there was clear
G evidence against the appellant, who had been identified by
  Lidiya and the witnesses in Court, and in view of the decisions
  of this Court in Sk. Hasib v. State of Bihar, AIR 1972 SC 283,
  Bikau Pandey v. State of Bihar, AIR 2004 SC 997 and State
  of Rajasthan v. Kishore, AIR 1996 SC 3035 there was no
H reason to interfere with the conviction and sentence.
     KUNJUMON @ UNNI v. STATE OF KERALA                      1041
            [MADAN B. LOKUR, J.]

Accordingly, Criminal Appeal No. 835 of 2004 was dismissed.           A

Discussion and conclusions:

     17. Before us the facts as found by both the Courts below
have not been contested by learned counsel for the appellant
and rightly so. However, it was submitted that since a TIP was        8
not conducted, the evidence of Lidiya could not be relied upon.
Additionally, it was contended that since Lidiya was about 11
years of age at the time of the incident, the evidence of the child
witness should be carefully scrutinized. Finally, it was
contended that the appellant had no intention to murder               C
Annamma and therefore the conviction for an offence
punishable under Section 302 of the IPC was improper.

     18. We are unable to agree with the submissions made
by learned counsel for the appellant.                                 o
(i) Not holding a TIP:

      19. We have gone through the decisions referred to by the
High Court and find that only Sk. Hasib is of any relevance. In
that case, this Court explained the purpose of a TIP. It was          E
observed that an identification parade is held at the investigation
stage by the investigating officer for a two-fold purpose: to
identify the property subject matter of the alleged offence or the
person concerned in the alleged offence and to assure the
investigating authority that the investigation is proceeding along    F
the right lines. For this reason, the identification parade should
be held at the earliest, so that memory does not fade in the
meanwhile. More importantly, however, to ensure that the
identification parade inspires confidence and is fair and
effective, certain precautions need to be taken.                      G

      20. In spite of this, it was held, relying on Vaikuntam
Chandrappa v. State of Andhra Pradesh, AIR 1960 SC 1340
that,

     " ... the substantive evidence is the statement of a witness     H
    1042    SUPREME COURT REPORTS                    [2012] 9 S.C.R.

A       in court and the purpose of test identification is to test that
        evidence, the safe rule being that the sworn testimony of
        the witness in court as to the identity of the accused who
        is a stranger to him, as a general rule, requires
        corroboration in the form of an earlier identification
B       proceeding."

    Consequently, if there is no substantive evidence against an
                                     \
    accused, a TIP will not assist the prosecution.

       21. The advisability of holding a TIP (particularly with
C reference to avoidable or unreasonable delay) has been
  emphasized in Rameshwar Singh v. State of J & K, (1971) 2
  sec 715 by tethering it to "proper administration of justice".
  In Budhsen v. State of Madhya Pradesh, (1970) 2 SCC 128
  it has been pitched to "the life and liberty of an accused".
D However, in Budhsen an exception has been noted "when for
  example, the court is impressed by a particular witness, on
  whose testimony it can safely rely, without such or other
  corroboration."

E      22. A more useful and elabQrate discussion on the subject
  is to be found in Malkhansingh v. State of Madhya Pradesh,
  (2003) 5 SCC 746 where the TIP is linked to the requirement
  of Section 9 of the Evidence Act, 1872 and coupled with the
  caution that in the absence of a TIP, the weight to be attached
  to the identification of the accused in Court is a matter for the
F courts of fact to decide.

         23. Similarly, in Vijay @ Chinee v. State of Madhya
    Pradesh, (2010) 8 sec 191 after a discussion on the subject,
    it was concluded that,
G
        "... . .. the test identification is a part of the investigation
        and is very useful in a case where the accused are not
        known beforehand to the witnesses. It is used only to
        corroborate the evidence recorded in the court. Therefore,
        it is not substantive evidence. The actual evidence is what
H
      KUNJUMON @ UNNI v. STATE OF KERALA                        1043
             [MADAN B. LOKUR, J.]

     is given by the witnesses in the court."                            A

It was noted in Vijay with reference to State of Himacha/
Pradesh v. Lekh Raj, (2000) 1 SCC 247 that the holding of a
TIP is "a rule of prudence which is required to be followed in
cases where the accused is not known to the witness or
                                                                         B
complainant."

     24. We have gone into some detail on this issue because
of the unfortunately cursory manner in which the matter has been
dealt with by the Trial Judge and the High Court.
                                                                         c
      25. The sum and substance of the various decisions
referred to above and others on the same lines is that the failure
to hold a TIP is not fatal to the case of the prosecution, but the
Trial Judge will need to be circumspect in accepting the
identification of an accused by a witness in Court if the accused        0
is a stranger to the witness.

      26. In the present case, we are not dealing with the
evidence of any ordinary witness - we are dealing with a victim
of a crime, someone who was directly at the receiving end of
the actions of the appellant and who came face to face with              E
the threat and intimidation by the appellant. The evidence of
such a victim of a crime must be placed, in our opinion, on a
somewhat higher pedestal, in terms of the credibility attached
to it, than the evidence of any other witness. We need to·
seriously consider a partial shift in focus in the "proper               F
administration of justice" by including not only the "life and liberty
of an accused" but issues of victimology and the treatment of
victims. Theories concerning criminal law and the administration
of criminal justice are fast developing and we need to keep up
with these developments.                                                 G

     27. What does Lidiya say in her evidence? Firstly, she
identifies the appellant but no question is put to her in this
regard in her cross-examination. Then, she says of the
appellant:
                                                                         H
    1044    SUPREME COURT REPORTS                 [2012] 9 S.C.R.


A       'He caught me on my neck and told that if I open my mouth
        I shall be killed. I was scared and kept mum. He told me
        to remove my earrings and chain. I being scared removed
        my earrings and chain and gave it to him-"

  She reiterates this in her cross-examination and says that she
8
  saw the appellant for two minutes. The entire traumatic
  sequence of events would have been clearly etched in Lidiya's
  memory, even though it may taken only two minutes. And so,
  the only question put to her in cross-examination in this regard
C is "You are deposing falsely that you saw A1 [the appellant]?"
  which of course she denied.

       28. We have considered the delay of about 6 years in
  recording the evidence of Lidiya, but are of the opinion that on
  a reading of her testimony the episode did not (understandably)
D fade away from her memory.

       29. It is quite clear from the evidence of Lidiya, the
  absence of any meaningful cross-examination, the evidence
  given by the other witnesses and the recovery of gold ornaments
E from the possession of the appellant that the absence of the
  TIP makes no difference to the case of the prosecution or the
  identification of the appellant.

    (ii) Testimony of a child witness:

F       30. This issue need not detain us for any length of time. It
  is true that Lidiya was about 11 years of age when the incident
  took place. However, her testimony was recorded, unfortunately,
  after a lapse of 6 years. She was, by then, no longer a "child
  witness". That apart, her evidence is clear and unambiguous
G and nothing adverse could be elicited during her cross-
  examination. We see no merit in this contention advanced on
  behalf of the appellant.

    (iii) Murderous intent of the appellant:

H       31. Looking to the overall facts of the case, we see no
       KUNJUMON @ UNNI v. STATE OF KERALA                  1045
              [MADAN B. LOKUR, J.]

reason to disagree with the concurrent view of the Trial Court      A
and the High Court that the appellant is guilty of murder. If a
frail old woman aged about 90 years is dragged down from Iler
cot and beaten on the head with a wall clock, it is not difficult
to imagine what the consequences would be - and surely the
appellant would not be oblivious of them. There is no merit in      B
the submission of learned counsel for the appellant that his
client did not intend the death of Annamma or even did not know
that his actions would result in her death.

      32. However, it seems quite clear, and this was also the      C
case of the prosecution, that the appellant had gone to the
house of Jose son of Anthony for the purpose of committing a
robbery. He did not go for the purpose of or with the intention
to kill anybody. That he killed Annamma is unfortunate, but the
house trespass was for the purpose of committing a robbery
and not for the purpose of committing an offence punishable         D
with death. Under the circumstances, in our opinion, it would
not be proper to convict the appellant for an offence punishable
under Section 449 of the IPC. To this extent, therefore, his
appeal must be allowed.
                                                                    E
Result:

      33. There is no merit in this appeal to the extent of the
appellant's conviction and sentence for offences punishable
under Section 397 and Section 302 of the IPC. Accordingly, it
                                                                    F
is dismissed in this regard. However, the appeal is allowed to
the extent that no offence punishable under Section 449 of the
IPC has been made out against the appellant.

R.P.                                     Appeal Partly allowed.