Kerala High Court
Prajimon @ Praji vs State Of Kerala on 30 September, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 30TH DAY OF SEPTEMBER 2022 / 8TH ASWINA, 1944
CRL.A NO. 71 OF 2006
AGAINST THE ORDER/JUDGMENTSC 224/2005 OF ADDITIONAL DISTRICT COURT
(ADHOC), KOTTAYAM
CP 18/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,PALA
APPELLANTS/ACCUSED:
1 PRAJIMON @ PRAJI,
S/O. GOPALAKRISHNA CHETTIYAR,
VALIYAVEETTIL PARAMBIL VEEDU, ALANADU KARA,
BHARANANGANAM VILLAGE.
2 JOMON @ IRUTTI JOMON, S/O.JOY, PARAYIL VEEDU,
PONADU KARA, LALAM VILLAGE NOW RESIDING AT PARAYIL VEEDU,
THENGUMTHOTTAM BHAGOM, MEENACHIL KARA, MEENACHIL.
3 SHAJI @ CHIRATTAPPOOL SHAJI,
CHAKKIRIKUNNUMPURATHU VEEDU, CHAKKINIPALAM BHAGOM,,
THEKKUMMURY KARA, PULIYANOOR.
4 JOBY@ CHINDAN, S/O.KUTTAPAN,
CHALADIYIL VEEDU, MAROTTICHUVADU BHAGAM,
MUTHOLIKKARA, PULIYANNOOR.
5 ANEESH @ PONNAMBALAM, S/O.KUTTAPPAN,
CHOORAKKATTU VILLAGE,NEAR GOVERNMENT L.P.SCHOOL,
PARAPPALLIKKARA, POOVARANI VILLAGE.
BY ADVS.
SRI.MANU TOM
SRI.ARUN JOSE THOMAS
SRI.BALU TOM
RESPONDENT/COMPLAINANT & STATE:
STATE OF KERALA,
REP. BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV SR.PP. SRI.VIPIN NARAYAN
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON
16.09.2022, THE COURT ON 30.09.2022 DELIVERED THE FOLLOWING:
Crl.Appeal.No.71 of 2006
2
C.S.SUDHA, J
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Crl.Appeal No.71 of 2006
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Dated this the 30th day of September, 2022
JUDGMENT
This appeal under Section 374(2) Cr.P.C has been filed by the accused in S.C.No.224/2005 on the file of the Sessions Court, Kottayam, challenging the conviction entered and sentence passed against them for the offences punishable under Sections 120(B), 143, 147, 148, 427, 307 read with Section 149 IPC.
2. The prosecution case is that the first accused due to his enmity towards PW1 and with the intention of murdering him, conspired with A2 to A5 for achieving the object and in furtherance of their common object, on 05.01.2005 at about 05.45 a.m., formed themselves into an unlawful assembly, and in a Maruthi van bearing registration No.KL-8/Q-5221 owned by CW11 and driven by A1 proceeded to Kuringi Kavala in the Pala-Thodupuzha road and when CW1 came by in his motor bike bearing registration No. KL-5/N-7001, waylaid and attacked him. While the 1 st accused waited inside the car, A2 to A5 with wooden sticks attempted to murder CW1 by beating him on his arms, legs and chest. In the incident, CW1 lost his gold chain worth ₹ 18,000/-. The accused had travelled to the spot in the Maruthi van after changing the registration number of the vehicle by giving it a false registration Crl.Appeal.No.71 of 2006 3 number. Hence the accused as per the final report are alleged to have committed the offences punishable under Sections 120(B), 143, 147, 148, 427, 307 read with Section 149 IPC.
3. On the basis of Ext.P1 FIS of PW1 recorded by PW9, the then Head Constable of Ramapuram Police Station, Ext.P6 FIR, i.e., Crime No.3/2005 of Ramapuram Police Station was registered by PW10, the then Sub Inspector of police, Ramapuram Police Station. The initial investigation was conducted by PW10. Thereafter, the investigation was taken over, completed and final report submitted by PW11, the then Circle Inspector, Ramapuram Police Station.
4. Pursuant to the appearance of the accused before the court below, on 17/11/2005 a charge for the offences punishable under Sections 120(B), 143, 147, 148, 427, 307 read with Section 149 IPC was framed, read over and explained to the accused to which they pleaded not guilty. The prosecution examined PW1 to PW11 and got marked Exts.P1 to P11 and MO1 to MO4 in support of their case. Ext.X1 series has also been marked. After closing the prosecution evidence, the accused were questioned under Section 313(1)(b) Cr.P.C. with regard to incriminating circumstances appearing against them in the evidence of prosecution. They denied those circumstances and maintained their innocence.
5. As the court below did not find it a fit case to acquit the accused under Section 232 Cr.P.C., the accused were asked to enter on their defence. No oral Crl.Appeal.No.71 of 2006 4 evidence has been adduced by the accused.
6. After considering and oral and documentary evidence and after hearing both sides, the court below by impugned judgment dated 06/01/2006, convicted and sentenced the 1st and 2nd accused to undergo rigorous imprisonment for 3 years each and to pay a fine of ₹ 3,000/- each and in default of payment of fine to undergo rigorous imprisonment for three months each for the offence punishable under Section 120(B) IPC. Accused no.1 to 5 have been convicted and sentenced to undergo rigorous imprisonment for 3 months each and to a fine of ₹ 500/- each and in default of payment of fine to undergo rigorous imprisonment for 15 days each for the offence punishable under Section 143 r/w Section 149 IPC; to undergo rigorous imprisonment for 1 year each and to a fine of ₹ 1,000/- each and in default of payment of fine to undergo rigorous imprisonment for two months each for the offence punishable under Section 147 r/w Section 149 IPC; to undergo rigorous imprisonment for 5 years each and to a fine of ₹5,000/- each and in default of payment of fine to undergo rigorous imprisonment for 1 year each for the offence punishable under Section 307 r/w Section 149 IPC. Accused no.2 to 5 have also been sentenced to undergo rigorous imprisonment for 2 years each and to a fine of ₹2,000/- each and in default of payment of fine to undergo rigorous imprisonment for two months each for the offence punishable under Section 148 r/w Section 149 IPC.
7. The only point that arises for consideration in this appeal is whether Crl.Appeal.No.71 of 2006 5 the conviction entered and sentence passed against the accused by the court below are sustainable or not.
8. Heard Shri.Manu Tom, the learned counsel for the appellants and Shri.Vipin Narayan, the learned Senior Public Prosecutor.
9. The 4 th accused is no more. Hence the appeal as far as the 4 th accused is concerned, stands abated insofar as the sentence of imprisonment is concerned. As stated earlier, the 1st and 5th accused have been convicted and sentenced for the offence of criminal conspiracy punishable under Section 120(B) IPC. For establishing the case of criminal conspiracy, the prosecution relies on the oral testimony of PW5. PW5 in the box deposed that on 04/01/2005, he had seen the 1 st and 2nd accused in a bar at Pala. This, along with the 161 statement of PW5 to the police, wherein he had stated that he had seen all the accused at the bar, has been relied on by the court below to find a case of criminal conspiracy against A1 and A2. The court below seems to have been blissfully unaware of the bar contained under the Proviso to Section 162 Cr.P.C. Use of statements to the police is not permissible. Under the Proviso to S.162, Cr. P. C. such statements can be used only for the purpose of contradicting a prosecution witness in the manner indicated in S.145 Evidence Act, and for no other purpose. They cannot be used for the purpose of seeking corroboration or assurance for the testimony of the witness in court. (Sat Pal v. Delhi Administration, 1976 (1) SCC 727: AIR 1976 SC 294). The learned Public Crl.Appeal.No.71 of 2006 6 Prosecutor realizing this folly, fairly conceded that no legally admissible evidence is on record to establish the offence of criminal conspiracy punishable under Section 120(B) IPC against A1 and A2. The finding of the court below on the said point is obviously and apparently incorrect and so the same needs to be interfered with and set aside and hence I do so.
10. Now coming to the finding relating to the remaining offences. I first refer to Ext.P1 FIS of PW1, the injured, in which he states as follows - He is a newspaper agent and distributor. On 05/01/2005 he was on his way to distribute newspapers. He was riding his bike bearing registration no. KL-5/N-7001 through the Pala-Thodupuzha Road towards Nellampara. At about 05.45 a.m., when he reached about 300 meters north of Kurinji Kavala, he saw a Maruthi van parked by the side of the road. On seeing him, four persons hiding behind the Maruthi van suddenly jumped in front of him and two of them beat him with wooden sticks. He fell down from the bike on the road. He fell on his face. All the four persons kept beating him with wooden sticks. During the course of the attack, one of them pulled away his gold chain. At that point, a bus coming from Pala reached the scene. Seeing the bus approaching, a person sitting inside the Maruthi van called out to the other four persons to quickly enter the vehicle. Two of the assailants then abandoned the wooden sticks in their possession and all four of them quickly got into the vehicle and the Maruthi van drove away towards Pala. The assailants were youngsters wearing Crl.Appeal.No.71 of 2006 7 lungi and shirt. The incident occurred at 05.45 a.m. He saw his assailants and the registration number of the vehicle from the light of the head lamp of his bike and the bus. He can identify his assailants on sight. Ravi (CW2) and Benny (CW3) who had arrived at the spot hearing his cries, took him to the hospital. He also says that passersby had witnessed the incident. PW1 has also stated that he has no personal or political enmity with anyone/any person.
11. On the basis of Ext.P1 FIS, Ext.P6 FIR was registered alleging commission of the offence punishable under Section 394 IPC.
12. I refer to the testimony of the investigating officers, namely, PW10 and PW11. According to PW10, the then Sub Inspector, Ramapuram Police Station, on the basis of the intimation received on 05/01/2005 from the Carmel Medical Centre, PW9, recorded Ext.P1 FIS of PW1, on the basis of which he registered Crime No.3/2005 and the FIR prepared by him has been marked as Ext.P6. According to PW10, he conducted investigation into the case, proceeded to the scene of occurrence. Two wooden sticks seen at the place of occurrence were seized and Ext.P7 scene mahazar prepared. He also seized a portion of the gravel containing blood stains. The wooden sticks and gravel were identified by PW10 and hence were marked as MO2(c), (d) and MO4 respectively. On 14/01/2005, he arrested the 2 nd accused and on questioning him found that the motive for the incident was not to commit dacoity, but due to previous enmity with PW1. As the offences committed Crl.Appeal.No.71 of 2006 8 were grave ones, he handed over the investigation to PW11, the then Circle Inspector, Ramapuram. PW10 further deposed that he had seized MO1 shirt worn by PW1 at the time of the incident as per Ext.P8 seizure mahazar.
13. PW11 when examined deposed that after taking over the investigation, he had questioned PW1 and the other witnesses and had recorded their statements. On 30/01/2005, A3 to A5 surrendered before the police. PW1 on being shown A3 to A5, identified them. Their arrest was recorded and their statement recorded. According to PW11, on the basis of Ext.P2(a) statement given by A3 to A5 and as pointed out by them, he recovered two more wooden sticks used for the attack and the two stickers used as false registration number for the vehicle. These were seized as per Ext.P2 seizure mahazar. MO2(a) and (b) are the wooden sticks and the stickers stated to have been discovered on the basis of the disclosure statement of A3 to A5. His investigation revealed commission of the offence punishable under Section 120(B) IPC. Hence, he submitted Ext.P9 report to the said effect before the court. The first accused on surrendering before the court, was enlarged on bail. On questioning the first accused, the commission of the offences punishable under Sections 143, 147, 148 and 149 IPC were also made out. Hence, he submitted Ext.P10 report to the said effect before the court. He issued notice to the owner of the Maruthi Van used for the incident and the vehicle was seized as per Ext.P11 seizure mahazar. He then completed the investigation and submitted the charge sheet Crl.Appeal.No.71 of 2006 9 before the court.
14. PW1, the injured, more or less stands by the story narrated in Ext.P1. He identified A2 to A5 in the box by their names. It was submitted by the learned counsel for the appellants/accused that nowhere in the evidence on record, the role of the first accused has been referred to. There is no mention of the first accused in Ext.P1 FIS also. PW1 neither in Ext.P1 nor in the box, has a case that he had seen A1 as the driver of the Maruthi van on the date of the incident. Therefore, the court below went wrong in convicting him for the aforesaid offences, submits the counsel. There certainly appears force in this argument advanced on behalf of the appellants. In order to connect the first accused with the crime, the prosecution relies on the testimony of PW3, who claims to be a friend of the first accused as well as PW1. PW3 admitted that he had not seen the incident. To a leading question by the prosecutor in the chief examination, PW3 answered that he is aware that PW1 and A1 are not in good terms. According to PW3, about 5 to 8 months before the incident, on a Sunday, he was standing at Pravithanam junction. While so, the first accused came in an autorikshaw and invited him to accompany the former. PW3 joined the first accused and went to the property purchased by the latter. On the way they got down and had toddy from a toddy shop. While PW3 was going around and seeing the property of the first accused, the latter told him that PW1 had assaulted him during the previous year's church festival. PW3 also deposed that A1 had told him Crl.Appeal.No.71 of 2006 10 that he would do away with PW1 before the next festival. After that on 05/01/2005, while he was waiting for a bus at Pizhak Pala junction, he saw the first accused driving by in a Maruthi van through Thodupuzha road towards Pala. The time was around 05:45 a.m.
15. The court below relied on the aforesaid testimony of PW3 to connect the first accused with the crime. Here again the court below committed a grave mistake by relying on the 161 statement of PW3. In the impugned judgment, it is stated that PW3's testimony is in consonance with his 161 statement to the police. According to the learned trial Judge, the prosecutor before the court below had submitted that the place where PW3 was standing is about 5 kms away from the place of occurrence; that PW3 deposed that he had seen a bus going to Malabar in front of the van driven by the first accused; that according to PW1, the arrival of a bus at the spot had prevented further assault by the accused; that PW1 had also deposed that the said bus had proceeded towards Pala; that it is thereafter the Maruthi van had driven away towards Pala and that incident, according to PW1, had taken place at 05:45 a.m. Therefore, according to the court below the possibility of the Maruthi van driven by the first accused and bus reaching the spot where PW3 was waiting, cannot be ruled out and hence held that the role of the first accused in the crime also stands established. Here again the learned Public Prosecutor realizing the folly committed by the court below conceded that the evidence on record is insufficient Crl.Appeal.No.71 of 2006 11 and grossly inadequate to find the first accused guilty of the offences alleged against him. Therefore, the finding of the court below regarding the complicity of the first accused in the crime is liable to be set aside and hence I do so.
16. Now coming to the role of the remaining accused in the crime. As can be seen from Ext.P1 FIS, PW1 has stated that he can identify his assailants on sight. No identification marks have been stated in Ext.P1. Therefore, the learned counsel for the appellants/accused submitted that a test identification parade (TIP) ought to have been conducted by the police to identify the accused. The same has not been done in this case and therefore, the sole testimony of PW1 cannot be relied on to find the accused guilty of offences alleged against them. When the learned Public Prosecutor was asked as to how the Investigating Officer in this case had concluded on the complicity of the remaining accused in the crime, it was submitted that PW1 had identified A3 to A5 before the police. PW11, the Investigating Officer also deposed that PW1 had identified A3 to A5 before him. It was also submitted that it is not mandatory for the police to conduct TIP in all cases. In this case, not only had PW1 identified A2 to A5 before the police, he had also identified the accused by their names in the court and hence the complicity of the remaining accused has been established, submits the learned Public Prosecutor. Reference is made to the decision of the Apex Court in Heera v. State of Rajasthan, AIR 2007 SC 2425 wherein it has been held that failure to hold TIP would not make inadmissible the evidence of Crl.Appeal.No.71 of 2006 12 identification in court.
17. It is true that conducting an identification parade in all cases is not mandatory (Ravi Kapur v. State of Rajasthan, 2012 (9) SCC 284). The purpose of pre-trial identification evidence is to assure the investigating agency that the investigation is going on in the right direction and to provide corroboration of the evidence to be given by the witness or victim later in court at the trial (Rameshwar Singh v. State of J & K, 1971 (2) SCC 715). If the suspect is a complete stranger to the witness or victim, then an identification parade is desirable (Mulla v. State of U.P., 2010 (3) SCC 508, Kishore Chand v. State of H.P., 1991 (1) SCC 286) unless the suspect has been seen by the witness or victim for some length of time (State of U.P. v. Boota Singh, 1979 (1) SCC 31).
18. In Budh Sen v. State of U.P., AIR 1970 SC 1321 it has been held that where an accused is not known to the witness from before and there is no T.I. parade, but the witness identifies the accused for the first time in court, such an identification is valueless. It was observed that as a general rule, the substantive evidence of a witness is a statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question Crl.Appeal.No.71 of 2006 13 with reasonable particularity. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceeding.
19. In State of UP v. Boota Singh, 1979 (1) SCC 31, the Apex court explaining Budh Sen (Supra) held that by holding that evidence of identification for the first time at the trial was of a weak character, it merely meant that where the evidence of a witness in court is not tested by prior identification parade held in jail, not much reliance can be placed on such evidence. This however does not lay down a rule of universal application that the identification evidence is a very weak type of evidence. Where the witness correctly identifies the accused at a TIP held by a Magistrate after observing all the essential formalities and taking the necessary precautions and then identifies the accused also in court, the evidence of identification can be believed unless the evidence of witness suffers from some other infirmity. Moreover, the evidence of identification becomes stronger if the witness has an opportunity of seeing the accused not for a few minutes but for some length of time, in broad day light, when he would be able to note the features of the accused more carefully than on seeing the accused in a dark night for a few minutes.
20. Conduct of the parade is not governed by any statutory provision or Crl.Appeal.No.71 of 2006 14 guideline. Relevancy of identification is under S.9 of the Evidence Act (Hasib v. State of Bihar, AIR 1972 SC 283). If identification parade is not properly and regularly conducted, it cannot operate as reliable corroboration regarding identification in court (Yeshwant v. State of Maharashtra, AIR 1973 Supreme Court 337). Though any person can conduct a TIP, Magistrates are preferred because of the assurance of regularity (Asharfi v. State, AIR 1961 Allahabad 153). His identification memo is a record of the statement which the identifier expressly or impliedly made before him. It is a former statement of the identifier. In court it is usable not only for contradiction under S.145 or 155, but also for corroboration under S.157 of the Evidence Act. It is subject to the exception that, if it was before the police, it would be hit by S.162 of the Cr.P.C. and therefore inadmissible for corroboration. If the person holding the identification is a competent Magistrate, S.164 Cr.P.C. applies and his identification memo is admissible.
21. If the accused is a stranger to the witness and the witness has seen him for the first time at the time of commission of offence, the police may call the witness to identify the accused while the accused is in their custody. Such identification of accused can be used as an aid in investigation and for the limited purpose of confirmation of the suspicion of the police that the suspect is the culprit and that they can proceed with further investigation. This identification conducted by the police for the purpose of further investigation and which is inadmissible as evidence should not Crl.Appeal.No.71 of 2006 15 be confused with TIP conducted by a magistrate which is relevant under S.9 of the Evidence Act, and which can be used in a criminal proceeding as evidence.
22. Further, in some cases it may be possible to make correct identification of previously unknown accused even without a TIP. A person may have one or more rarely peculiar features with which he could be easily identified and distinguished from others. These features may remain clearly in the memory and vision of an eye witness in spite of passage of time even though the opportunity for seeing him in action or otherwise may be little. That is all the more so when it is a memorable incident. Sometimes even without any such special or peculiar identifying features, one may be able to identify a previously not known accused on account of the time and opportunity to note or memorize his features and personality at the time of incident. The importance and interest of the incident to the witness is one reason why he should retain the identification in mind. There can be various reasons of that type which could enable a witness to identify a person.
23. Coming to the case on hand. Here is a case in which the incident took place at dawn. The version of the prosecution itself is that it was slightly dark at the time of incident. According to PW1, he had seen the assailants with the help of the light from the head lamp of his motorbike as well that of the bus which passed by. The incident lasted just a few minutes. No identification marks of the assailants are seen referred to in Ext.P1 FIS. PW1 has no case that he has any prior acquaintance or Crl.Appeal.No.71 of 2006 16 had noted any identifying features or marks of his assailants. It is true that testimony of the witness in the court is the substantive evidence and a proper identification by the witness in a TIP can only corroborate his testimony in court. In this case, as PW1 has no prior acquaintance with the accused and as he does not seem to have noticed any identifying features of the assailants, it would certainly have been ideal, had the police conducted a TIP. In the absence of a proper identification, it may not be safe to rely on the uncorroborated testimony of PW1 to find the accused guilty of the offences alleged against them. Further, though PW1 in Ext.P1 FIS, has a case that passersby had seen the incident, no such 'passerby' has been examined to substantiate the case.
24. On going through the impugned judgment, I find no reference to the cross-examination of any of the prosecution witnesses. What has been looked into by the court below is whether the testimony of the witnesses in the box tally with their 161 statements to the police. Their credit worthiness and trust worthiness has not been tested with reference to their cross-examination in court. The trial court seems to have relied on the 161 statement of the witnesses and examined whether their chief examination tallied with their 161 statement and finding that they did, concluded that the prosecution case has been established. This is apparently a grave error committed by the court below.
25. Further, the recovery of two wooden sticks alleged to have been Crl.Appeal.No.71 of 2006 17 affected by PW11 at the instance of A2 to A5 and on the basis of their disclosure statement, is also doubtful. In the deposition of PW11, the court below has referred to Ext.P11(a) as the relevant portion of the disclosure statement of A3 to A5. However, on going through the seizure mahazar, I do not find the relevant portion of the alleged disclosure statement marked. I am unable to make out 'the disclosure statement' alleged to have been given by A3 to A5. Further, as per the testimony of PW11, the disclosure statement alleged to have been given by A3 to A5 seems to be a joint one. The court below relying on the decision of the Apex court in State (N.C.T of Delhi) v. Navjot Sandhu, 2005 CrLJ 3950, held that a joint statement is not inadmissible. The Apex court in the aforesaid judgment said that if two persons in custody when interrogated separately and simultaneously give information leading to the discovery of a fact and when that information is given one after the other without any break simultaneously and if such information is followed by pointing out the material thing by both of them, there is no good reason to eschew such evidence from the regime of Section 27 of the Evidence Act.
26. It is true that the aforesaid decision says that if the statements have been given simultaneously or in quick succession, the same would be admissible. Here PW11, the Investigating Officer, to whom A3 to A5 are alleged to have given the statement, does not specify as to how the disclosure statement had been given, like, whether the accused had been questioned simultaneously or whether the statement Crl.Appeal.No.71 of 2006 18 was given in quick succession or one after the other. PW11 has merely stated that A3 to A5 gave a statement on the basis of which two of the wooden sticks alleged to have been used for the incident were recovered. This does not seem to be a proper recovery as contemplated under law. The approach of the court below in relying on the 161 statements of the witnesses to the police is unsustainable, erroneous and against the basic tenets of criminal law. Hence the finding of the court below that the prosecution case has been established on the basis of the oral testimony of the prosecution witnesses, which is stated to tally with their statements to the police, is liable to be interfered with and hence I do so.
In the result, the appeal is allowed and the appellants are acquitted under Section 235(1) Cr.P.C. Their bail bonds shall stand cancelled and they shall be set at liberty forthwith.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA JUDGE Jms/16.09