Madras High Court
Sheik Dawood Al Mothi vs State Rep.By
Author: N. Anand Venkatesh
Bench: N. Anand Venkatesh
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on
27.06.2018
Delivered on
09.07.2018
CORAM:
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
CRL.A.756 of 2008
Sheik Dawood Al Mothi .. Appellant
.Vs.
State Rep.by
The Inspector of Police,
B-4, Baluchetty Chatram Police Station,
Kancheepuram District. .. Respondent
(Crime No.174 of 2004)
Criminal Appeal filed under Section 374 (2) of the Code of Criminal Procedure to set aside the judgment dated 24.09.2008 passed in S.C.No.22 of 2007 on the file of the Additional Sessions Court, (Fast Track Court No.II), Kancheepuram convicting the appellant under Section 394 read with 397 IPC and sentencing him to under go R.I. for 7 years and to pay a fine of Rs.10,000/- i/d to undergo 6 months R.I.
For Petitioner : Mr. K.Goviganesan
For Respondent : Mrs.S.Thankira
Government Advocate (Crl.side)
JUDGMENT
This appeal has been filed aggrieved by the order of conviction and sentence passed by the Additional Sessions Court cum F.T.C.No.II, Kancheepuram in S.C.No.22 of2007, dated 24.09.2008.
The case of the prosecution in brief:
2.PW-7, who is running a Travel Agency by name Geo Travels at Bangalore, requested PW-2 who was the owner of the Qualis Car bearing registration No.KA-03-MA-7449 on 04.03.2004, to send the Car for a passenger who wants to travel from Bangalore to Chennai. Accordingly PW-2 asked his driver Ravindrathan [PW-1] to take the Car and pick up the passenger. [PW-1] Ravindrathan took the Car and at about 5.30 p.m when he was proceeding near Magestic Anandha Circle, Bangalore, the accused waved his hands and Ravindrathan [PW-1] stopped the Car and accused after confirming the name of the Car driver, told Ravindrathan [PW-1] that he was the passenger who wanted to go to Chennai. The accused boarded the Car and sat in the rear seat. When the Car was proceeding towards Chennai, en-route, Ravindrathan [PW-1] and the accused got down at Krishnagiri and had dinner. Thereafter, the Car further proceeded and came to a halt at 1.00 a.m on 05.03.2004, since the accused wanted to answer the call of nature. After the car came to a halt, the accused took a Iron Jocky Rod [M.O-2] from the Car and hit Ravindrathan [PW-1] in his head repeatedly as a result of which Ravindrathan [PW-1] fell on the side and the accused took away in the Car. Ravindrathan [PW-1] thereafter managed to stop a lorry and got into it and informed the driver of the lorry about the incident. When the lorry approached a Highway Patrol Police, Ravindrathan [PW-1] got down from the lorry and informed [PW-12] who was the Inspector on patrol duty about the incident. Immediately, the Police arranged for an ambulance and on its arrival the ambulance compounder [PW-5] gave first aid treatment and Ravindrathan [PW-1] was brought to the Government Hospital at Walajahpet, where he was given treatment by PW-16.
3.Thereafter PW-2, the owner of the Car came to Walajapet Hospital and visited Ravindrathan [PW-1]. On the basis of the statement given by Ravindrathan [PW-1] in the Hospital, the same was reduced into a complaint [Ex.P-1] by PW-17 who is the Inspector of Police of Kaveripakkam Police Station. Since the place of occurrence fell within the jurisdiction of Baluchetty Chathiram Police Station, [Ex.P-1] Complaint was sent to the concerned Police Station and an FIR was registered in Crime No.174 of 2004 [Ex.P-16] for an offence under Section 324 and 379 IPC. The Inspector of Police took up the case for investigation and visited the scene of occurrence and prepared Observation Mahazar [Ex.P-17] and Rough Sketch [Ex.P-18] in the presence of witnesses PW-3 & PW-4. Thereafter, the statement of witnesses was recorded and Alteration Report [Ex.P-19] sent to the Magistrate Court altering the offence to Section 392 IPC. Thereafter, the investigation was taken over by Ramamoorthy, Inspector of Police.
4.In the meantime on 23.05.2005, [PW-10] who is the Sub Inspector, Central Crime Branch, Hyderabad Special Team, received an information that a Merun Colour Qualis Car was found abandoned near Cholichowky, Hyderabad City. He went to the spot and brought the abandoned vehicle to the Police Station and submitted a report to the Deputy Commissioner of Police who in turn forwarded the report to the Sub Inspector [PW-9] and based on the report PW-9, registered a case in Crime No.387/2005 under Section 102 of Criminal procedure Code. [Ex.P-4] is the printed copy of the First Information Report. [PW-11] Inspector of Police took over investigation in this case and formally seized the Car under [Ex.P-5] Seizure Report. [PW-15] Inspector of Police, succeeded PW-11 and took up further investigation. In the course of investigation, the accused person was arrested at Humayun Nagar on 26.08.2006, at about 10.30 a.m under suspicious circumstances. The accused is said to have made a voluntary Confession Statement [Ex.P-8] and a Car key was seized from the accused. While enquiring about the ownership of the Car, PW-15 found that PW-2 is the owner of the Car and on enquiry came to know about the above said incidents. The accused was produced before the concerned Magistrate Court at Hyderabad along with [Ex.P-9] Remand Report, and the learned Magistrate by an order dated 26.08.2006, permitted the Hyderabad Police by way of a transit Warrant to hand over the accused and also the seized material objects to Baluchetty Chathiram Police Station. This was informed by way of a radio message to the Superintendent of Police, Kancheepuram who immediately deputed [PW-18] Inspector to proceed to Hyderabad. Accordingly PW-18 went to Hyderabad along with two head constables and met [PW-15] Inspector of Police, Hyderabad who handed over the accused and also the Qualis Car [M.O.1] and the Car key. PW-18 on returning back to Baluchetty Chathiram Police Station, on 29.08.2006 handed over the accused and Car with the key to Ramamoorthy, Inspector of police who was investigating the case. The accused was arrested and an Alteration Report [Ex.P-20] was prepared altering the offence from Section 390 to 397 IPC. The accused was examined and he made a voluntary confession and based on the Confession Statement [Ex.P-21 Admissible Portion of the Confession], the Police party and witnesses went to Panapakkam Coot Road located in the Bangalore Chennai Highway and [M.O.2] Iron Jocky Rod was recovered under [Ex.P-22] Seizure Mahazar. Thereafter, Ravindrathan [PW-1] and PW-2 were called to the Police Station and they identified the accused. Subsequently, the accused was remanded to Judicial custody.
5.On completion of the investigation, a Final Report was filed against the accused for an offence under Section 394 r/w 397 IPC. On committal, the Additional Sessions Court at Kancheepuram framed charges under Section 394 r/w 397 IPC against the accused persons.
6.The prosecution examined PW-1 to PW-19 and marked documents Exs.P-1 to P-22 and also marked material objects 1 and 2 in order to substantiate the case. After the examination of the prosecution witnesses, the accused was questioned under Section 313 Cr.P.C. with regard to the incriminating circumstances and the accused person denied his complicity.
7.The learned Additional Sessions Judge, on consideration of the entire materials, by an order dated 24.09.2008 convicted the accused for an offence under Section 394 r/w 397 IPC and imposed a sentence of 7 years Rigorous Imprisonment and fine of Rs.10,000/- and in default 6 months Rigorous Imprisonment. The accused person aggrieved by the said order of conviction and sentence has filed the present Criminal Appeal.
8. [PW-1] Ravindrathan, who is the driver of the Car and the injured witness in his evidence has stated that he is a Car driver who is working for PW-2 and on 04.03.2004, he was asked go to Geo Travels in the Qualis Car [M.O-1] and at about 5.30 p.m. after reaching Geo Travels, he was given a trip sheet [which was not marked] and was asked to go to Magestic Ananda Circle to pick up the customer. On reaching the spot, one person waved his hands and stopped the Car and enquired whether the driver is Ravi. Thereafter that person asked Ravindrathan [PW-1] to go to Chennai and he was sat in the back seat. At around 8.30 a.m. they had dinner at Krishnagiri and at about 1.00 a.m. on 05.03.2004, the person in the Car requested [PW-1] Ravindrathan to stop the Car for him to attend the natures call. On coming out of the Car, the passenger attacked [PW-1] Ravindrathan with the Iron Jocky Rod in his head repeatedly and [PW-1] Ravindrathan fell down and thereafter the passenger took away the Car and drove it towards Chennai. [PW-1] Ravindrathan suffered serious bleeding injuries in his head. [PW-1] Ravindrathan called his owner PW-2 in his mobile phone and told him about the incident. Thereafter [PW-1] Ravindrathan caught hold of a lorry and informed the lorry driver about the incident and got into the lorry. The lorry proceeded in the Bangalore High Road and [PW-1] Ravindrathan spotted High Way Police Patrol and got down from the lorry and informed the Inspector of Police about the incident. An ambulance was arranged and [PW-1] Ravindrathan was taken in Walajahpett Hospital and [PW-1] Ravindrathan was treated by the doctor. At about 5.30 a.m. the Owner PW-2 came to the hospital. From there, both of them went to Kaveripakkam Police Station and informed the Police about the incident who took the statement and was signed by [PW-1] Ravindrathan. The Police was taken to the spot where the incident happened and [PW-1] Ravindrathan was informed that the jurisdiction falls within Balu Chetty Chathiram Police Station and [PW-1] Ravindrathan went to the said Police Station and told them about the incident. After a month Police from Balu Chetty Chathiram Police Station visited Bangalore and [PW-1] Ravindrathan showed them the place from where he picked up the accused person.
9.[P.W-1] Ravindrathan in his evidence has further stated that the Police asked him to come to Chennai and showed many photographs and asked him if any of those persons found in the photographs, was the person who attacked [PW-1] Ravindrathan. [P.W-1] Ravindrathan stated that the accused person was not found in those photographs. Thereafter the Police came to Bangalore and from their [PW-1] Ravindrathan went along with them to Mysore and some more photographs were shown, and [PW-1] Ravindrathan did not find the face of the accused in those photographs. Thereafter [PW-1] Ravindrathan was taken to a Police Station near Hosur and some more photographs were shown to [PW-1] Ravindrathan and in one of the photographs, the face found therein resembled the face of the accused person but [PW-1] Ravindrathan was not sure about it. That particular photograph was taken by the Police and all of them returned back to Balu Chetty Chathiram Police Station. The next day [PW-1] Ravindrathan returned back to Bangalore. After a week, [PW-1] Ravindrathan received an information from Police to the effect that they have identified the address of the person whose photograph resembled the face of the accused. On reaching the place, they found the house to be locked and were informed that the concerned person has gone to Bangalore.
10.[PW-1] Ravindrathan in his evidence further states that the concerned person was apprehended at Bangalore and he was asked to identify the said person. [PW-1] Ravindrathan on seeing the person informed the Police that he is not the person who attacked him and thereafter [PW-1] Ravindrathan returned back to his place. The Police called [PW-1] Ravindrathan over phone and told him that the concerned person who was apprehended was the person who attacked [PW-1] Ravindrathan. Thereafter, PW-2 informed [PW-1] Ravindrathan that the Qualis Car has been found out in Hyderabad. Thereafter the Car and the concerned person were brought to Balu Chetty Chathiram Police Station. [PW-1] Ravindrathan on being shown [M.O-2 Iron Jocky Rod], identified the same to be the one that was used to attack him.
11.The prosecution treated [PW-1] Ravindrathan as a hostile witness. Obviously [PW-1] Ravindrathan was treated to be a hostile witness since he specifically said in the course of the chief examination that the accused person who was shown to him in the Police Station was not the person who attacked him and in spite of the same the Police informed him that he is the person who committed the offence. Therefore, the natural corollary for the prosecution is to take the leave of the Court and cross examine [PW-1] Ravindrathan on this vital aspect. But surprisingly the prosecution did not even put one question about the identity of the accused to [PW-1] Ravindrathan and all irrelevant questions have been put to [PW-1] Ravindrathan.
12.A witness is not necessarily hostile if he is speaking the truth and his testimony goes against the interest of the party calling him. Thus, if the test is whether a witness is speaking the truth or not, the question of being his adverse to the party calling him his irrelevant. If the prosecution had felt that [PW-1] Ravindrathan is not speaking the truth on the identity of the accused person, it should have put necessary questions by way of cross examining him and elicit the facts. It is more so in a case of this nature since except [PW-1] Ravindrathan no one else can identify the accused person. Therefore, to fix the accused person in relation to the alleged occurrence, the evidence of [PW-1] Ravindrathan is the most crucial one. The incident took place on 05.03.2004 and for the first time [PW-1] Ravindrathan identifies the accused person on 24.09.2007 after a period of more than three years in the Court.
13. [PW-1] Ravindrathan in the course of his cross examination has specifically admitted that after the incident, he is seeing the accused for the first time in the Court and identifying him.
14. PW-2 is the owner of the Qualis Car and [PW-1] Ravindrathan is working with him as a driver. PW-2 in his evidence speaks about the manner in which the arrangement was made to pick up the accused person from Bangalore to Chennai. He also speaks about the phone call received by him from [PW-1] Ravindrathan regarding the incident and his visit to Walajahpet Government Hospital. He also speaks about the statement given to the Police and the subsequent events as stated by [PW-1] Ravindrathan. PW-2 also speaks about the call he received form the Hyderabad Police and the identification of the Qualis Car. In the dash board of the Car he found the photo of the accused person and the certificate that the accused person is a handicapped person having no leg below the right knee. PW-2 also speaks about the Qualis Car subsequently brought to Kancheepuram along with the accused person.
15.PW-3 and PW-4 are the Mahazar witnesses and both of them turned hostile.
16.PW-5 is the Compounder of the ambulance who speaks about the first aid treatment given to [PW-1] Ravindrathan and also about taking [PW-1] Ravindrathan to the Walajahpet Government Hospital. PW-6 was the driver of the ambulance who took [PW-1] Ravindrathan to Walajahpet Government Hospital. Ex.P-3 is the Proforma for ambulance service and the same was marked through PW-6.
17.PW-7 is the owner of Geo Travels who speaks about the call received from the customer and her communication with PW-2 to engage his services to pick up the Customer. In her cross examination PW-7 states that the customer called himself as Gopi and she specifically says that she wrote the name of the customer and also his phone number in the trip sheet. However, the trip sheet was not produced before the Police even during investigation.
18.PW-8 is the Sub Inspector of Police who was working at Crime Branch in Hyderabad. He speaks about the action taken along with this team based on the FIR [Ex.P-4] registered in Crime No.387 of 2005 and he further states that on 26.08.2006 they secured the accused person at about 9.00 a.m. near Humayun Nagar. He further states that the accused person does not have leg below the right knee and the accused was having prosthetic leg.
19.PW-9, is the Sub Inspector of Police belonging to the same Police Station at Hyderabad and he speaks about the complaint brought by PW-10 and the case that was registered in Crime No.387 of 2005 under Section 102 of Cr.P.C. and the said FIR was marked through him as Ex.P-4. He also speaks about the complaint subsequently forwarded to Balu Chetty Chathiram Police Station.
20.PW-10 is the Sub Inspector of Police in the same Station who received the information on 23.05.2005 about an abandoned Qualis Car. He took the Car to the Police Station and submitted a report to the higher authorities. In the cross examination he accepts the fact that no pachanama was prepared while the Car was removed from the abandoned place and the dash board of the Qualis Car was empty.
21.PW-11 was the Inspector of Police who conducted the preliminary investigation and thereafter handed over the C.D. file to PW-15.
22.PW-12 is the Sub Inspector of Police who was in the Patrol duty. He speaks about the happenings on 05.03.2004 when [PW-1] Ravindrathan approached him with bleeding injuries in his head and told him about the incident. He also speaks about arranging the ambulance and sending [PW-1] Ravindrathan to Walajahpet Government Hospital.
23.PW-13 who was examined by the prosecution in order to establish that [PW-1] Ravindrathan informed him about the incident immediately after the attack, did not support the case of the prosecution and was treated as a hostile witness.
24.PW-14 who was examined by the prosecution as a recovery witness also turned hostile.
25.PW-15 was the Inspector of CCS Auto Mobile Wing Police Station who conducted further investigation in Cr.No.387/2005. In his evidence he speaks about apprehending the accused person under suspicious circumstances and the recovery of the Qualis Car key from the pocket of the accused. The Seizure Mahazar was marked through him as Ex.P-8. He arrested the accused person and seized the materials. Ex.P-9 is the Remand Report that was marked through him. Ex.P-10 is the radio message that was sent to S.P. Kancheepuram on the Police [PW-18] reaching Hyderabad, the accused as well as the Qualis Car was handed over to PW-18 and the receipt was marked as Exs.P-11 & P-12. PW-15 in the cross examination specifically talks about the handicap of the accused person who did not have leg below the right knee and no efforts were taken by him to see whether the accused can drive any vehicle.
26.PW-16 is the Doctor at Wallajahpet Government Hospital who gave treatment to [PW-1] Ravindrathan. The Wound Certificate was marked through him as Ex.P-15, in the Wound Certificate the following injuries were noted.
1)Lacerated wound 7 x 0.5 x 0.5 cm over the parieto occipital region.
2)Lacerated wound 5 x 0.5 x 0.5 cm over 2 cm in front of the first injury.
3)Lacerated wound 5 x 0.5 x 0.5 cm over 2 cm in front of the parallel to the injury no.2.
4)Incised wound 4 x 0.5 cm over 2 cm in front of the injury No.3.
5)Lacerated wound 6 x 0.5 cm x 0.5 cm on the left parietal region.
27.PW-17 is the Inspector of Police of Kancheepuram Police Station who speaks about the intimation received from Walajahpet Government Hospital wherein he recorded the statement from [PW-1] Ravindrathan and PW-12. He also speaks about [PW-1] Ravindrathan taking treatment for his head injury and also about the fact that the case was transferred to the jurisdiction Police Station viz., Balu Chetty Chathiram Police Station.
28.PW-18 who is the Head Constable at the Kancheepuram Taluk Pollice Station speaks about his visit to Hyderabad on instructions of S.P. Kancheepuram, and the Hyderabad Police handing over the Qualis Car and the accused person which he brought and in turn handed over to Inspector of Police, Ramamoorthy.
29.PW-19 speaks about the case investigated by Ramamoorthy, Inspector of Police who died subsequently. Therefore, PW-19 speaks from the available records about the incident. The FIR in the present case was marked as Ex.P-16, the Observation Mahazar and Rough Sketch was marked as Exs.P-17 and P-18, the Alteration Report was marked as Ex.P-19, and the admissible portion in the Confession Statement of the accused was marked as Ex.P-21, through him. M.O.2 Iron Jocky Rod was also marked through him. During the cross examination he speaks about the handicap of the accused person and also of the fact that no efforts were taken by the Investigating Officer to assess whether the accused person is capable of driving the Qualis Car. In his entire evidence there is nothing to show that [PW-1] Ravindrathan came to the Police Station and identified the accused person.
30.The accused examined himself as DW-1 and he states that when he was 4 = years old, the leg below the right knee was amputated and he was having a prosthetic leg. He further states that he cannot drive a Car or a two wheeler. Even in his answer in the 313 Statement, the accused person has reiterated this stand and has given a statement to the effect that he has been dragged into this case without any basis and he has nothing to do with the alleged offence.
31.The learned counsel for the appellant made the following submissions:
The accused has not been properly identified in this case and there are absolutely no materials to relate the accused person to the alleged incident.
The accused person admittedly does not have leg below the right knee and he cannot drive the Car and there was no investigation with regard to this fundamental fact as to whether the accused is capable of driving a Car.
The recovery of MO-2 after a period of 2= years is totally unbelievable and the recovery witness PW-14 also turned hostile and did not support the case of the prosecution.
The prosecution failed to secure even the trip sheet of the vehicle from PW-7 which would have clearly shown the name of the person who called PW-7 and it would have revealed at least the phone number of the accused person. This vital piece of evidence is missing.
Even when the Car was seized by PW-11, the accused was not in the Car and he was arrested subsequently by PW-11 at a different place under suspicious circumstances and in order to connect the seizure of the Car and the accused, a false case of recovery of Car key has been invented by the prosecution.
The first time PW-1 identified the accused person was only in the Court after nearly 3 = years from the date of incident.
32.The learned Government Advocate (Crl.Side) made the following submissions:
[PW-1]Ravindrathan has clearly identified the accused person in the Court and there is no need to doubt the identity since [PW-1] Ravindrathan had spent a long time with the accused person between 4th evening and 5th early morning.
The fact that the key of the Car was recovered from the accused person by PW-11 based on the confession statement of the accused clearly shows that the accused was the person who was in control of the Qualis Car [M.O-1].
The accused person admittedly had prosthetic leg and therefore was capable of using the right leg like any normal person and there will be no difficulty for driving a Car with that leg.
The non holding of the identification parade is not fatal to the prosecution and the evidence of [PW-1] Ravindrathan cannot be dis-believed on this ground.
The trial Court on proper appreciation of the evidence available on record has come to a categorical conclusion that the accused person has committed a serious crime and there are absolutely no grounds to interfere with the said findings.
DISCUSSION:-
33.In this case the mute point that has to be considered by this Court is as to whether the prosecution has established the identity of the accused person and has sufficiently placed materials in order to connect him to the alleged offence.
34.Section 9 of the Evidence Act is an important portal for letting in much of evidence relating to Police investigation. It is important to note that the Section 9 of the Evidence Act does not deal with testimonial evidence of identity but deals only with circumstantial evidence of identity. 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 be confused with test identification parade conducted by the Magistrate which is relevant under Section 9 of the Evidence Act, and which can be used in a criminal proceeding as evidence. It is also possible that the witness who for some reason has not been called to identify the accused either by the Police or by way of identification parade in the presence of Magistrate, to look at the accused when he is in the ''dock'' in the Court and identify him from memory.
35.Section 54-A of Crl.P.C. was added by way of an amendment in the year 2005 for the first time conferring express power on the Court to Order test identification parade. This provision was brought in order to ensure that the correct person who committed the offence is identified at the earliest point of time so that investigation proceeds on the correct line.
36.A few important decisions on this aspect of identification of an accused will be of significance in order to apply the same to the facts of the present case and see if the accused has been properly identified by the prosecution and has been properly connected to the alleged offence.
a.In Mahabir .v. State of Delhi reported in [2008] 16 SCC 481, the Hon'ble Supreme Court has held as follows:
10.As was observed by this Court in Matru .v. State of U.P.2 identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in Court. (See Santokh Singh v. Izhar Hussain.) The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eye witnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Evidence Act, 1872 (in short 'the Evidence Act'). It is desirable that a test identification parade should be conducted as soon as possible after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution.
11.It is true to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the 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.
b)State .V. V.C.Shukla reported in [AIR 1980 SC 1382] .....Thus, the existence of the only circumstance on the basis of which the witness could have identified Tripathi becomes doubtful and in view of the categorical statement of Tripathi that he never went to New Delhi Railway Station on the 10th of November to receive the film, it is difficult to accept the evidence of PW-5 that Tripathi was the person present at the station. The possibility that the witness committed some mistake in identifying cannot be ruled out. Moreover, the identification of Tripathi by the witness for the first time in the court without being tested by a prior test identification parade was valueless.
c)Raju @ Rajendra .V. State of Maharashtra reported in [AIR 1998 SCC 275] ..... 7. That brings us to the question whether their identification of the two appellants as the miscreants can be safely relied upon. So far as the identification of A-1 is concerned we find that he (A-1) was known to both of them from before. In such circumstances their identification of A-1 as one of the two miscreants who assaulted the deceased with a stone cannot be questioned. Resultantly, we need not deal with or delve into the circumstantial evidence pressed into service by the prosecution to buttress the evidence of the eye-witness in proof of the accusation levelled against A-1.
8.the same cannot, however, be said about their identification of A-2 as the other miscreant for they admitted that they saw him for the first time on that day. In view of their above admission and in absence of any T.I. parade held for identification of A-2 immediately after his arrest, we find it difficult to solely rely upon the identification of A-2 by the witnesses for the first time in Court and that too after a lapse of almost one and half years after the incident.
d) Kannan and Others .V. State of Kerala reported in [AIR 1979 SCC 1127] ......Both the Trial Court and the High Court have found that the mere fact that no T.I. Parade was held would not destroy the evidence of P.W-25. With due respect, we feel that the High Court erred in law in taking this view. It is well settled that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T.I. parade to test his powers of observations. The idea of holding T.I. parade under S.9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T.I. parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court.
e)In a recent judgment of this Court in Manikandan .V. State, Rep. by the Inspector of Police reported in [2018 (1) MWN (Cr.) 139] it has been held as follows:
....14.Then, what is the sanctity of a Test Identification Parade? A Test Identification Parade is essentially conducted during investigation for twin purposes:
to test the capability of the victim to identify the Accused when lined up with dummies; and to use such identification, if done by a Magistrate, as a corroborative piece of evidence for dock identification In a given case, if the Police do not want corroborative evidence viz Test Identification Parade proceedings, it is their choice. If a victim is shown the suspect in the Police Station and he confirms the identity, that cannot be used as a corroborative evidence for dock identification in view of the bar under Section 162, Cr.P.C. In other words, in the examination-in-chief of the victim, he cannot say that he identified the Accused in the Police Station in view of the embargo engrafted under Section 162, Cr.P.C. Seeing the suspect in the Police Station, ipso facto, cannot and will not vitiate the dock identification, especially in the absence of any express prohibition in the Code for showing the Accused to the victim. Section 54-A, Cr.P.C. that was introduced by Central Act 25 of 2005 is only an enabling provision which empowers the Court to issue a direction to an arrested Accused to subject himself to Test Identification Parade proceedings. The Code of Criminal Procedure has been there in various forms since 1862 and the Police were conducting Test identification Parade as part of investigation process and therefore, Section 54-A, Cr.P.C. cannot be said to have introduced the concept of Test identification Parade for the first time. Of course, in a give case, if the Police have sufficient materials like recovery of an article, etc., they are justified in arresting the suspect even without getting any validation from the Witness and after he is remanded to judicial custody, steps can be taken for conducting Test Identification Parade proceedings by a Magistrate.
22.........Therefore, as a principle of law, it cannot be said that seeing the Accused in the Police Station would ipso facto vitiate the dock identification and obliterate the effect of Section 9 of the Evidence Act. Seeing the Accused in the Police Station will be a conduct of the Witness relevant under Section 8 of the Evidence Act and this cannot make the dock identification, which is relevant under Section 9, ibid, irrelevant. At the most, the Court will be required to be more circumspect while cumulatively evaluating the evidence on record.
37.From the above judgments, the following principles emerge :
a) Identification parades are not primarily made for the Court and they are meant for investigation purposes.
b) The purpose of identification parades are:
(i) to test the memory of the witness.
(ii) to test their veracity and ;
(iii) to enable the prosecution to decide whether they could site the person concerned as an eye witness of the crime.
(iv) the identification of the accused by the witness for the first time in Court after a long gap from the incident in the given facts and circumstances, may prove fatal to the case of the prosecution.
(v) An identification of an accused for the first time is in Court is good enough and can be relied upon if the witness is otherwise trustworthy and reliable.
38.In the present case except [PW-1] Ravindrathan no other witness can vouch for the identity of the accused person. PW-1 in his evidence categorically makes a statement as follows:
mjd; gpwF 1 khjk; fHpj;J ghYbrl;o rj;jpuk; nghyPrhh; ng';fS:h; te;jhh;fs;/ vd;id tprhhpj;jhh;fs/; ehd; M$h; vjhp Kjypy; bg';fS:hpy; ,Ue;J g[wg;gLtjw;F Kd; vd; tz;oapy; M$h; vjphpia Vw;wpa ,lj;ij fhl;ondd;/ gpwF vd;id nghyPrhh; brd;idf;F tur;brhd;dhh;fs;/ m';F fhty; e[piyaj;jpy; epiw nghl;nlhf;fis fhz;gpj;J vd;id tprhhpj;jhh;fs;/ me;j nghl;nlhf;fspy; vd;id moj;J fhag;gLj;jpa egh; ,y;iy vd;W brhd;ndd;/ gpwF vd;id kPz;Lk; bg';fS:Uf;F mDg;gp tpl;lhh;fs;/ gpwF kPz;Lk; nghyPrhh; bg';fS:h; te;jhh;fs;/ gpwF m';fpUe;J nghyPrhh;. ehd;. ikR{Uf;F brd;nwhk;/ gpwF ,e;j khjphp jpUl;L tHf;Ffs; rk;ge;jg;gl;l egh;fs; nghl;nlhf;fs; ,Uf;Fk; vd;W vd;id nghyPrhh; m';F miHj;jhh;fs;/ gpwF m';F fhl;lg;gl;l g[ifg;gl';fspy; vd;id moj;J fhag;gLj;jpa egh; ,y;iy vd;W brhd;ndd;/ gpwF XR{h; mUfpy; cs;s xU fhty; epiyaj;jpy; jpUl;L tHf;F rk;ge;jg;gl;lth; nghl;nlh ,Ug;gjhf nghyPrhh; vd;id Tl;o bfhz;L nghdhh;fs;/ m';F fhty; epiyaj;jpy; rpy nghl;nlhf;fis fhl;odhh;fs; mjpy; xU g[ifg;glk; vd;id jhf;fpa eghpd; g[ifg;glk khjphp ,Ue;jJ/ vdnt mJ Fwpj;J re;njfkhf brhd;ndd;/ mjd; gpwF ehDk; nghyPrhUk; me;j nghl;nlhit vLj;Jbfhz;L ghYbrl;o fhty; epiyak; te;njhk;/ me;j kWehs; ehd; bg';fS:Uf;F brd;Wptl;nld;/ gpwF Rkhh; 1 thuk; fHpj;J ehd; milahsk; fhl;oa nghl;nlhit itj;J me;j eghpd; tpyhrk; fz;Lgpoj;J Kjypy; eh';fs; XR{h; gf;fj;jpy; cs;s ,lj;jpw;F brd;w nghyPrhh; jwpf;fiuf;F vd;idTl;o bfhz;L nghdhh;fs;/ m';F tPL khjphp ,Ue;jJ mJ g{l;o ,Ue;jJ me;j tPl;L gf;fj;jpy; ,Ue;jth; me;j tPl;oy; ,Ue;th; bg';fS:hpy; ,Ug;gjhf brhd;dhh;/ gpwF nghyPrhh; bg';fS:hpy; njo goj;jhh;fs;/ mJ egh; vd;id milahsk; fhl;l brhd;dhh;fs; ehd; ghh;j;Jtpl;L mJ vd;id jhf;fpa egh; my;y vd;W brhd;ndd;/ gpwF ehd; tPl;ow;F te;Jtpl;nld;/ gpwF me;j fhty; epiyaj;jpy; ,Ue;J nghyPrhh; vd;dplk; fhl;oa egh; mth;fSf;F nghd; bra;J jhd; jhd; rk;gtj;jpy <L gl;ljhf brhd;djhf vdf;F nghdpy; brhd;dhh;fs;/ jwpf;fiw nghyPrhh; vdf;F mg;go brhd;dhh;fs;/ fhiu jpUoa egiua[k; nghyPrhh; gpoj;J ,Ug;gjhf brhd;dhh;fs;/ gpwF nghyPrhh; ghYbrl;o rj;jpuk; fhty; epiyaj;jpw;F Fthyp!; fhiu bfhz;L te;jhh;fs;/ ,ij tp$P!; Fkhh; ngha; ghh;j;jhh;/ rk;gtj;jpw;F gpwF ,d;Wjhd; M$h; vjphpia Kjd; Kjyhf ghh;f;fpnwd;/ nfhh;l;oy; milahsk; fhl;Lfpnwd;/ kWptrhuiz: ,y;iy/
39.The incident took place between 4.03.2004 evening and 5.03.2004 early morning at 1.00 a.m. [PW-1] Ravindrathan gave evidence in the Court on 24.09.2007, on which day he is said to have identified the accused after a period of more than 3 = years. In his evidence, [PW-1] Ravindrathan categorically says that when the accused was shown to him at Bangalore by Balu Chetty Chathiram Police, [PW-1] Ravindrathan categorically has told the Police that he is not the person who attacked him on 05.03.2004. Thereafter, the Police seemed to have told [PW-1] Ravindrathan that the person who has been taken into custody has confessed to the crime and have made [PW-1] Ravindrathan accept that the person who has arrested and shown to [PW-1] Ravindrathan was the person who committed the crime. Surprisingly in this case even after the Qualis Car and the accused person were brought from Hyderabad by PW-18 to Balu Chetty Chathiram Police Station, [PW-1] Ravindrathan was not even called to the Police Station to identify the accused person. If [PW-1] Ravindrathan is categorical that when the accused was shown to him in Bangalore, he specifically said that he is not the accused person, it does not stand to a reason as to how the very same person was identified as the accused person before the Court. A very strong suspicion arises on the statement made by [PW-1] Ravindrathan only due to this reason. If [PW-1] Ravindrathan had not seen the accused person right through after the incident and had perfectly identified the person in the Court, some credence could have been given to such an identity by [PW-1] Ravindrathan since [PW-1] Ravindrathan had spent sufficient time with the person who attacked him and was also moving in close quarters with him.
40.It is also important to take into account certain incidental factors that has happened in this case. The Hyderabad Police for the first time on 23.05.2005, got an information about an abandoned Qualis Car and they went to the spot, seized it and brought it to the Police Station and registered a case in Cr.No.387 of 2005 under Section 102 of the Criminal Procedure Code. Admittedly, at the time when the Car was seized, the accused person was not present in the Car and PW-10 who was the Sub Inspector of Police, Central Crime Branch, Hyderabad categorically says in his evidence that when he checked the dash board in the Car nothing was found in it. Therefore, at the time when the Car was seized, there was no evidence to relate it to the accused person.
41.After nearly one year on 26.08.2006, the accused is apprehended by the Police in Hyderabad under suspicious circumstances. It is the evidence of PW-15 that the accused made a voluntary confession and handed over the Car key to him. It is not known as to how the Hyderabad Police connected the accused with the abandoned Car which was seized one year before the accused was apprehended. Therefore, this theory of the Hyderabad Police is unbelievable.
42.There is yet another fact which assumes significance in this case. Admittedly, the accused person is a handicapped person who did not have leg below the right knee. According to the prosecution it is this person who has committed the offence and has driven the Car for nearly 600 kilometres. Curiously none of the Investigating Officers both at Hyderabad as well as in Tamil Nadu assess whether the accused person is capable of driving a Car. All the Police personnel when questioned about this in Court drew a blank and said that they did not take any effort to test the ability of the accused to drive the vehicle.
43.The handicap of the accused also gains significance due to the fact that [PW-1] Ravindrathan could have easily informed the doctor PW-16 or the Police at least about this important identity that the accused person is a handicapped person. [PW-1] Ravindrathan has not stated before anybody about this fact. This also throws a lot of doubt on the statement of [PW-1] Ravindrathan that the person present in the Court and named as an accused person was the person who committed the offence.
44.The prosecution has sought to link the accused person in this case only based on the confession statement said to have been given by the accused person as a result of which the Car key was recovered by the Hyderabad Police and M.O-2 Iron Jocky Rod was recovered after nearly 2= years after the incident by the Balu Chetty Chathiram Police. In the considered opinion of this Court, this discovery of fact does not in any way help the case of the prosecution in fixing the accused person to the alleged offence.
45.The accused person both in his evidence examining himself as DW-1 and in his answer at the time when he was questioned under Section 313 of Crl.P.C, has categorically stated that he is handicapped right from his childhood days and he cannot drive a two wheeler or a four wheeler and the Police have roped him in this case falsely.
46.From the above discussion, it will be clear that the prosecution has miserably failed to establish that the accused person had committed the offence. The identity of the accused is highly doubtful. The evidence of [PW-1] Ravindrathan also does not inspire the confidence of the Court to come to the conclusion that the accused person has only committed the offence. Therefore undoubtedly, the benefit of doubt has to go to the accused.
47.The trial Court has lost sight of this vital aspect and has proceeded to convict the accused person for an offence under Section 394 r/w 397 IPC.
48.There is an important lesson that has to be learned from this case. Engaging Call Taxies has become the order of the day. Call Taxies are plying across cities, towns and villages all 24 hours a day and 365 days in an year. The Call Taxies have opened a new avenue for employment. Persons from remote villages and towns choose to be Call Taxi drivers in order to eke their livelihood. In many case they own won a Car by taking loans from Banks and financial institutions. In order to repay loans and maintain their family, these Call Taxi drivers virtually slog it out.
49.With this prevailing environment, it becomes important to ensure that the persons who get it into the Car as a passenger and who is a rank third party to a Call Taxi driver, is identified. In the instant case there is no doubt that the incident in fact took place and [PW-1] Ravindrathan was attacked by the assailant as a result of which [PW-1] Ravindrathan sustained head injuries. The whole problem in this case was the identity of the person who attacked [PW-1] Ravindrathan. The incident that happened in this case can happen to any Call Taxi driver, and therefore, it is important to device some method thereby the persons who get into the Car as a passenger are properly identified.
50.One more important factor that must be kept in mind is the manner in which an accused has to be identified at the threshold of the investigation done by the Police in order to ensure that the investigation progresses in the correct path. In the instant case [PW-1] Ravindrathan very clearly told the Police when the accused was shown to him in the course of investigation, that he is not the assailant. However, the Police thrust upon [PW-1] Ravindrathan the accused in the present case and made him say in the Court that he is the assailant who attacked [PW-1] Ravindrathan. Therefore, this Court had no other alternative except to give the benefit of doubt to the accused person. This fatal mistake on the part of the prosecution should not continue in future.
51.In all cases where the accused is an stranger to the victim/witnesses and the latter have seen him for the first time at the commission of the offence, immediately on arrest of such an accused, the Police in order to assure themselves that the accused person who has been arrested is the person who has actually committed the offence, must seek for a direction from the Court having jurisdiction to conduct a test identification parade. Section 54-A of Crl.P.C. Specifically empowers the Court to direct holding of an identification of the accused person at the request of the prosecution. By following this procedure in cases of this nature, there is at least an assurance for the investigating agency that the investigation is going on in the right direction. That apart, such an identification will become relevant under Section 9 of the Evidence Act and it can be used in criminal proceedings as evidence. Of course CCTV footage has now become a very important tool for the Police which helps them in a long way in crime detection but this is a facility which is not available in all nook and corner of the State. The Police personnel needs to be educated on the availability of a provision under Crl.P.C. for identifying the accused person. By following this procedure, the element of doubt that arises about identity of the accused for the first time in the Court after a very long gap, can also be avoided.
52.Standing instructions can be issued to all Call Taxi operators to develop a process by which the identity of the person who gets into the vehicle should be ensured. The manner in which it is done can be left to the discretion of the Call Taxi operators. With tremendous scientific development, it will not be very difficult to formulate the process of identifying a passenger.
53.In the result this Criminal Appeal is allowed. The order of conviction and sentence passed by the Additional Sessions Court cum F.T.C.II, Kancheepuram in S.C.No. 22/2007, dated 24.09.2008, is hereby set aside. The bail bond executed by the appellant shall stand cancelled, and fine amount, if any, paid by him shall be refunded to him.
09.07.2018 Index: Yes Internet: Yes Speaking Order/Non Speaking Order Kp To
1.The Additional Sessions Judge, Fast Track Court No.II, Kancheepuram.
2.The Inspector of Police, B-4, Baluchetty Chatram Police Station, Kancheepuram District.
3.The Public Prosecutor, High Court, Madras.
N. ANAND VENKATESH,. J KP Pre-Delivery Judgment in Crl.A.No.756 of 2008 09.07.2018