Abdul Rehiman vs State Represented By The Public ... on 12 March, 2019

[Cites 16, Cited by 0]

Kerala High Court

Abdul Rehiman vs State Represented By The Public ... on 12 March, 2019

Appellant is the first accused in SC 221/2007 on the file of the court of session, Thrissur division There were six accused persons in the case including the appellant. They were charged under Secs 143, 147, 148, 149, 302, 324, 341 and 449 of the Indian Penal Code (IPC). The charges against the 4th accused abated since he died. Accused 2,3,5 and 6 were found not guilty and therefore they were acquitted. The appellant was found not guilty of the offences under Secs 143, 147,148,149, 324 and 341 of IPC. He was convicted and sentenced for the offences punishable under Secs 302 and 449 of IPC. He is in appeal challenging his conviction and sentences.

2. Prosecution case goes as follows: The incident occurred at 4.30 p.m on 30.3.2004. A person died in the incident. He was Hameed Mon. He was the follower of the political party called the Indian Union Muslim League (IUML for short). The accused persons belonged to the political party called the Communist Party of India (Marxist) - for short the CPI(M). There were political confrontations between the followers of the IUML and the CPI(M). The accused persons formed themselves into an unlawful assembly with the knowledge that they were members thereof. They were armed with deadly weapons. They rioted. They wrongfully restrained Hameed Mon and attacked him. He was inflicted with injuries on different parts of his body including the right thigh with 3 CRL.A.No. 214 of 2014 a sword. He who sustained fatal injuries breathed his last on the way to hospital. The place where the incident occurred was Andathode.

3. CW1 who was examined as PW1 gave the first information statement. It was recorded and the FIR was registered by the sub- inspector of Vadakkekad police station. The then circle inspector of Chavakkad conducted the major portion of the investigation. His successor completed the investigation and filed the charge-sheet before the court of the judicial magistrate of the first class, Chavakkad. The learned magistrate committed the case to the court of session.

4. The appellant and accused 2,3,5 and 6 pleaded not guilty to the charges framed against them. Hence the prosecution entered on evidence. PWs 1 to 17 were examined and Exts P1 to P35 and MOs 1 to 14 were marked on the side of the prosecution. Exts C1 to C7 were marked as the exhibits of the court. The contradiction brought out by the defence during the examination of PW3 was marked as Ext D1. The accused persons who faced trial were examined under Sec.313 of Cr.P.C. They denied the incriminating evidence and circumstances brought against them. They were found not entitled to acquittal under Sec.232 of Cr.P.C. Hence they were called upon to enter on their defence and adduce evidence. They examined one witness as DW1.

5. As already stated, accused 2,3,5 and 6 were acquitted. The appellant was convicted under Secs 302 and 449 of IPC. He was sentenced to imprisonment for life and a fine of Rs 1,00,000/- under Sec.302 of IPC and rigorous imprisonment for ten years under Sec.449 of IPC. Sentence in default of payment of fine was also imposed. The 4 CRL.A.No. 214 of 2014 substantive sentences of imprisonment were directed to run concurrently only.

6. Heard Sri.B.Raman Pillai, the learned senior counsel for the appellant and Sri.Nicholas Joseph, the learned public prosecutor.

7. The prosecution examined 17 witnesses. Two of them were examined as eyewitnesses. They were PWs 1 and 2. PW2 did not support the prosecution. PW1 narrated the incident. He identified all the accused persons who faced trial. PW1 spoke to the role of each accused except the role of the 6 th accused. PW1 gave the FI statement, Ext P1. He identified MO1 as the weapon with which injuries were inflicted on the victim. MOs 2 and 3 are the shirt and dhoti of PW1 seized from him. He showed the scene of occurrence to the police. He spoke to the seizure of MO4 aluminum pipe and MO5 bench from the scene of occurrence. According to the prosecution, MO4 is the case of MO1 sword. Exts P2 and P3 are respectively the statements of PWs 1 and 2 recorded under Sec.164 of Cr.P.C. PW3 is a taxi driver by profession. It was in his cab the victim was taken to the hospital named Raja Hospital at Chavakkad. PW4 was the owner of the telephone booth where did the incident take place. He proved Ext P5 telephone bill pertaining to the calls made by the victim just before the incident. PW4 attested Ext P4 scene mahazar. PWs 5 and 6 turned hostile to the prosecution. PW5 admitted that he signed Ext P6 seizure mahazar. Ext P6 relates to the recovery of MO1 sword and MO14 footwear. But PW5 denied having witnessed the recovery and seizure of MOs 1 and 14. PW6 was examined to prove the seizure of the auto 5 CRL.A.No. 214 of 2014 rickshaw in which the accused persons allegedly came. PW6 denied his presence at the time of seizure of the auto rickshaw. He denied the signature in the seizure mahazar to be his. PW7 was the village officer who prepared Ext P9 sketch in accordance with Ext P4 scene mahazar. PW8 who was the secretary of Punnayurkulam grama panchayat issued Ext P10 certificate of ownership pertaining to the building in which the telephone booth of PW4 was housed. PW9 witnessed the seizure of the belongings of the victim. Those belongings of the victim were marked as MO6 (shirt), MO7 (dhoti), MO8 (brief) and MO9 ( a pair of footwear). MOs 6 to 9 were seized at the time of inquest. PW10 conducted autopsy and authored Ext P11 autopsy report. PW11 was the chief resident medical officer at Raja Hospital. He spoke that the victim was brought to him dead. PW11 proved Ext P12 out-patient record pertaining to the victim. PW12, scientific assistant, examined the scene of occurrence, the auto rickshaw and MO4 aluminum pipe. He collected blood sample from the scene of occurrence. Exts P13 and P14 are his reports. MO10 is a piece of bloodstained 'rexine' taken from the auto rickshaw. MO11 is the control sample of 'rexine'. MO12 is the blood sample collected by PW12. The assistant motor vehicle inspector who inspected the auto rickshaw was examined as PW13 and his report was marked as Ext P15. PW14 was working as the sub- inspector of Vadakkekad police station. He recorded the FI statement and registered Ext P16 FIR. PW15 was the judicial magistrate of the first class at Chavakkad at the relevant time. He recorded Exts P2 and P3 statements of PWs 1 and 2 respectively under Sec.164 of Cr.P.C. 6 CRL.A.No. 214 of 2014 The learned magistrate conducted the test identification parade and prepared Ext P18 report. The lion's share of the investigation was conducted by PW16 who was the inspector of Chavakkad police circle. He spoke to what did he do during the investigation. He conducted the inquest and prepared Ext P20 inquest report. He prepared Ext P4 scene mahazar. He seized from the scene of occurrence MO4 aluminum pipe, MO5 bench and MO13 footwear. He seized (i) Ext P5 computer printout of the telephone bill from PW4, (ii) MO2 shirt and MO3 dhoti of PW1 as per Ext P22 seizure mahazar, (iii) the auto rickshaw bearing registration No.KL8-Z/2790, (iv) MO10 bloodstained 'rexine' piece and MO11 control sample of 'rexine' from the scientific assistant and (v) the registration certificate of the Matiz car in which the victim and PW1 came to the telephone booth. PW16 questioned the witnesses and recorded their statements under Sec.161 of Cr.P.C. He (PW16) arrested all the accused persons and interrogated them. PW16 deposed that he recovered MO1 sword and MO14 footwear at the instance of the first accused (appellant) and based on the disclosure statement made by the said accused. PW17 who was the successor-in-chair of PW16 concluded the investigation and filed the charge-sheet.

8. As has been stated already, the 4th accused died and the remaining accused were tried. The learned sessions judge acquitted accused 2,3,5 and 6. It was found that the prosecution failed to prove the political motive alleged by it. The common object to attract the offence of unlawful assembly and the common intention to attract 7 CRL.A.No. 214 of 2014 Sec.34 of IPC were found against the prosecution. The learned sessions judge found evidence wanting to find accused 2,3,5 and 6 to be aware of the hiding of MO1 sword by the first accused. According to the learned trial judge, the name of the 4 th accused was known to PW1 and they were relatives as well, but the name of the said accused was not mentioned in the FI statement and the relationship between the two were suppressed by PW1. It was also found that there was no overt act on the part of accused 2 and 6. The learned trial judge accepted the evidence of PW1 that he was caught hold of by the third accused, but it was found that the evidence did not suggest any intention for the third accused to wrongfully restrain PW1. Another finding was that the evidence of PW1 on the overt act of the 5 th accused was not in agreement with the version in the FI statement. The appellant was convicted holding that the overt acts alleged against him by the prosecution were proved by PW1, that PW1 identified the appellant at the test identification parade as well as in court at the trial and that MO1 sword and MO14 footwear were recovered at the instance of the appellant and based on his disclosure statement.

9. The learned senior counsel appearing for the appellant submitted that the appellant was convicted and sentenced without any legal and acceptable evidence. The learned public prosecutor supported the impugned conviction and sentences imposed on the appellant. We shall consider the arguments of the learned senior counsel and the learned public prosecutor at the appropriate place during the course of discussion of the evidence.

CRL.A.No. 214 of 2014

10. The learned trial judge found that the death of Hameed Mon was a homicide. The said finding was not assailed by the learned senior counsel for the appellant at the time of hearing of the appeal. Homicidal death of Hameed Mon cannot be disputed in view of the evidence tendered by PW10. He was working as the assistant professor of forensic medicine at the Medical College Hospital, Thrissur and as deputy police surgeon. He on 31.3.2004 conducted post- mortem examination on the dead body of Hameed Mon. PW10 spoke to twelve ante-mortem injuries he found on the corpse. Those injuries were incised wounds and abrasions including linear abrasions. All those injuries are shown by PW10 in Ext P11 autopsy report prepared by him. Injury no.10 is extracted below:

Incised punctured wound 3x1.5x7cm on the front of right thigh obliquely placed with upper outer end 7cm below iliac inguinal line. The wound was directed backwards, downwards and medially. It had cut the muscle and muscular blood vessels under. The femoral artery was found cut (1x0.8cm). Both ends of the wound was slightly cut. PW10 opined that the said injury was sufficient in the ordinary course of nature to cause death. It was a fatal injury as stated by him. It was so because, said PW10, the femoral artery was cut resulting in profused hemorrhage. We do not hesitate to confirm the finding of the trial court that Hameed Mon was murdered.

11. The prosecution examined PWs 1 and 2 for ocular proof. But PW2 did not support the prosecution. She was working as the telephone operator at the telephone booth conducted by PW4. The former was present in the booth on 30.3.2004. She deposed that she 9 CRL.A.No. 214 of 2014 never had seen PW1. PW2 spoke that at about 4.00-4.30p.m on 30.3.2004 two persons had come to the booth and they had their exit from the booth after making calls. After a while, said PW2, a few persons rushed to the booth and barged into it. According to PW2, she ran to the house of the owner of the booth and informed the wife of the owner. PW2 stated that when she came back to the booth, she saw a few persons gathered there. It was also her evidence that she fainted when she saw blood on the floor of the booth. She deposed in cross- examination that she did not see at the test identification parade the persons who barged into the booth. She spoke further that the accused persons were not there among the persons who barged into the booth. It was also stated by PW2 that she had not seen the accused persons at any time before. The prosecution did not get any evidence against any of the accused persons from the evidence of PW2.

12. The learned senior counsel Sri.B.Raman Pillai has argued that the evidence of PW2 is fatal to the prosecution and that the prosecution is bound by her evidence. We shall consider the said submission of the learned counsel later.

13. PW1 is the key witness of the prosecution. His evidence in his examination-in-chief may be summarised as follows: He and Hameed Mon were friends and first cousins. PW1 had gone to the house of Hameed Mon at Blangad on the date of incident, 30.3.2004. From there they started journey in the Matiz car of the victim to the house of PW1 at Veliyamcode in order to drop him there. When they 10 CRL.A.No. 214 of 2014 were about to begin their journey, the wife of Hameed Mon informed that one Khalid had called Hameed Mon from Veliyamcode. Hameed Mon stopped the vehicle near the telephone booth at Andathode to make a call to Khalid who was a common friend of both PW1 and Hameed Mon. Since the call did not get connected, Hameed Mon called another friend. Hameed Mon told PW1 that a woman who attended the call informed that situation was tensed at Veliyamcode as a person by name Usman belonging to the CPI(M) was attacked by the followers of the IUML and therefore Hameed Mon should not go to Veliyamcode. PW1 told Hameed Mon that the former would go to Veliyamcode and that the latter should return to Blangad. When they came out of the booth, they saw an auto rickshaw which came from Veliyamcode direction with full of passengers. They came back in the auto rickshaw as they saw Hameed Mon and PW1. The third accused by name Ali and two other persons alighted from the auto rickshaw first. They went near PW1. The third accused caught hold of the hand of PW1 and told PW1 that he should not interfere. The other two persons also caught PW1 to block him. In the meantime two more persons got down from the auto rickshaw. One of them rushed to Hameed Mon and pushed him into the booth. The other person took out a knife like weapon which was concealed at his waist. He stabbed Hameed Mon with the said weapon with force. Hameed Mon caught on the knife, but he was again stabbed by the said person. The said stab was received at the upper portion of the right thigh of the victim. When he leaned downwards, he was stabbed on his head by the same 11 CRL.A.No. 214 of 2014 person. When PW1 managed to reach near Hameed Mon, the assailants left the place in the auto rickshaw towards Veliyamcode direction. PW1 and another rushed the injured to Raja Hospital in a taxi car. The doctor in the said hospital examined Hameed mon and declared him dead.

14. PW1 spoke that the police came to the hospital and he gave Ext P1 FI statement. He spoke further that he gave Ext P2 statement to the magistrate after a month. The witness identified the accused persons at the test identification parade conducted at the sub- jail at Chavakkad. PW1 identified the accused persons who were in the dock at the time of trial. The witness identified the appellant/first accused as the person who stabbed Hameed Mon. Accused 2 and 3 were identified by PW1 to be the persons who caught him and blocked him from interfering. The 5th accused was identified to be the person who pushed Hameed Mon into the booth. The witness identified the 6 th accused also, but did not state what precisely the said accused do.

15. Going by the evidence of PW1, the appellant was the person who stabbed Hameed Mon thrice. This was one reason, perhaps the best reason, stated by the learned trial judge to convict the appellant. PW1 identified the appellant in court as well as at the test identification parade. The learned senior counsel Sri.B.Raman Pillai submitted that the first statement of PW1 that the appellant stabbed the victim was the statement made by the witness in court at the trial. The learned counsel submitted further that PW1 did not at all give a statement to the police that the victim was stabbed by the 12 CRL.A.No. 214 of 2014 appellant. It was also submitted by the learned counsel that the investigating officer did not question PW1 after the test identification parade to ascertain who stabbed the victim. We shall consider the evidence to consider the submissions of the learned counsel.

16. PW1 spoke in his examination-in-chief that after the test identification parade he did state to the police the role of each accused in the incident. But when cornered in cross-examination, PW1 had to concede that before giving evidence in court he did not tell anybody as to who stabbed the victim. An attempt was made by the public prosecutor in the re-examination of PW1 by asking him which of his contradictory versions was correct. The answer given by PW1 to the said question was to the effect that what he meant at the time of his cross-examination was that he did not tell anybody as to who stabbed the victim after having stated that fact to the circle inspector at the interrogation after the test identification parade. Since such an explanation was given by PW1 in the re-examination, he was further cross-examined with the permission of the court. In such cross- examination the witness stated that he had nothing to say if none of his statements produced in court disclosed him to have stated the role of each accused in the incident. The evidence of PW1 identifying the appellant as the person who stabbed the victim had thus been proved to be an omission amounting to a contradiction within the meaning of the explanation to Sec.162 of Cr.P.C. The said contradiction had been on the most material and crucial aspect, namely, the overt act of stabbing attributed to the appellant. We accept the submission of the 13 CRL.A.No. 214 of 2014 learned senior counsel that PW1 never before trial had given a statement regarding the overt act of stabbing alleged against the appellant.

17. Going by the prosecution version, PW1 had no previous acquaintance with the appellant and the former identified the latter at the test identification parade. Therefore, necessarily, as rightly submitted by the learned senior counsel, the investigating officer should have questioned PW1 after the test identification parade to ascertain who among the suspects identified by him had stabbed the victim. PW16 who investigated the case admitted in cross-examination that the entries in the case diary would not suggest any questioning of PW1 after 1.4.2004. The test identification parade was conducted on 29.4.2004. That means the case diary does not suggest that PW1 was questioned after the test identification parade. PW16 spoke that many statements were not seen in the case diary. He cannot explain it away in such a manner. Sec.172 (1) of Cr.P.C is strict that every police officer making an investigation shall day by day enter his proceedings in the investigation in the case diary. Sec.172 (IA) provides that the statements of witnesses recorded during the course of investigation under Sec.161 of Cr.P.C shall be inserted in the case diary. The evidence of PW16 suggesting the absence of any entry in the case diary regarding the questioning of PW1 after 1.4.2004 suggests that he was not questioned after the test identification parade. Therefore PW1 had no occasion to state to the investigating officer that the person who stabbed the victim was the appellant. It is now more clear that 14 CRL.A.No. 214 of 2014 the first statement of PW1 identifying the appellant as the person who stabbed the victim came only at the trial at the time of his examination and never before that. The evidence given by PW1 against the appellant was accepted in toto by the trial court without considering the aspects we have considered in this paragraph and the immediately preceding paragraph of this judgment. The appellant is not liable to be convicted on the strength of the evidence of PW1 identifying the appellant as the person who stabbed the victim.

18. According to the learned counsel for the appellant, even otherwise PW1 is not a credible witness. The 4 th accused, now deceased, was not only a person known to PW1, but they were relatives as well. PW1 even had attended the funeral of the 4 th accused. The precise relationship between the two as stated by PW1 was that his half-brother Mohammed Unni's wife's brother was the 4 th accused. PW1's version in the FI statement was that the only accused whom he knew personally at the time of the incident was Ali (3 rd accused). PW1 did not mention the name of the 4 th accused in the FI statement. The defence could establish that the non-disclosure of the name of the 4th accused in the FI statement was not just a failure or a mere omission, but a purposeful suppression. PW1 pretended that he understood the name of the 4th accused only after the incident. PW1 asserted that he did not mention the name of his relative in the FI statement since he was not aware of the name of the said relative. But the next moment PW1 conceded having stated to the police that he did not disclose the name of the 4 th accused in the FI statement out of fear 15 CRL.A.No. 214 of 2014 as the said accused was his relative. Therefore the evidence of PW1 that he did not know the name of the 4 th accused at the time of the incident cannot at all be true. Even if he did not know the name of the 4th accused at the time of the incident, he was aware that one of the assailants was his relative. He admitted that when he gave the FI statement, he was aware that one of the assailants was a relative of his. He volunteered and deposed that he did not disclose that fact to the police while giving the FI statement. Even according to PW1, he understood the name of the 4th accused two days after the incident. It was after a month thereafter he gave Ext P2 statement to the magistrate under Sec.164 of Cr.P.C. PW1 admitted that he was aware of the name of his relative (4 th accused) when he gave Ext P2 statement to the magistrate. But PW1 did not state the name of the 4th accused even in Ext P2 statement as conceded by him. He who tried his best to hide his relative's name cannot be considered a reliable witness. The learned trial judge also noticed that PW1 suppressed in the FI statement the name of his relative and the relationship. The said suppression was taken by the trial court as one of the grounds to acquit accused 2,3,5 and 6. A similar treatment was not extended to the appellant which, in our opinion, was per se wrong. It is true that the suppression highlighted by us is not referable to the appellant, but it tells upon the veracity of the evidence of PW1. We find it impossible to accept his evidence as that of an honest man.

19. Going by the FI statement, one person pushed the victim into the telephone booth and another one stabbed the victim with a 16 CRL.A.No. 214 of 2014 knife. The evidence given by PW1 was also that one person pushed the victim and another person, who was the appellant, stabbed. But the earliest version of PW1 was entirely different. The earliest version of the incident was recorded by PW11 who was the doctor at the Raja Hospital who declared the victim dead. PW11 recorded in Ext P12 out- patient record and spoke in court that the victim was brought to the hospital with the history of assault by a group of recognisable five people at Andathode in a telephone booth at 4.20 p.m on 30.3.2004. PW11 was not sure whether the said information was given to him by Ibrahimkutty (PW1). But PW1 was almost sure that he gave the said information to the doctor. PW1 deposed that he was asked by the doctor as to the cause of injuries sustained by the victim. PW1 stated that he answered the said query of the doctor. PW1 was asked whether he stated to the doctor that five persons attacked and caused injuries to the victim. PW1's response to the said question was that he must have stated so to the doctor if the doctor had recorded so. Thus, the earliest version of PW1 as to the cause of injuries sustained by the victim was quite different from his version in the FI statement and in the deposition given in court. The earliest version of PW1 may not, by itself, decisive, but it is material when considered in the light of his evidence discussed by us.

20. Sri.B.Raman Pillai submitted that the appellant was known to PW1, but the name of the appellant or his other details to locate him were not stated in the FI statement. PW1 deposed that he did not know the name of the appellant at the time of giving the FI statement 17 CRL.A.No. 214 of 2014 and even thereafter till the appellant was identified by PW1 at the test identification parade. In cross-examination the defence did not get anything to assert that the name of the appellant was known to PW1 when he gave the FI statement. But the defence did get some material from PW1 in cross-examination to contend that the appellant was not a person unknown to PW1. The only name mentioned in the FI statement is that of Ali, the 3 rd accused. About others, PW1 deposed that they were persons whom he had occasion to see before, although their names were not known to him. PW1 admitted that they were persons belonging to his native place and persons whom he had seen before. PW1 deposed one kilometre to be the distance from his house to the house of the appellant. It is also the evidence of PW1 that the distance between the house of Ali (third accused) and the house of the appellant was 200-300 metres. PW1 spoke that a close relative of him was married to a person by name Kunhali. PW1 was not sure whether Kunhali was the uncle of the mother of the appellant. But PW1 knew that the house of Kunhali was close to the house of the appellant. PW1 stated that he used to visit the house of Kunhali. The witness was asked whether he had occasion to see the appellant in the house of Kunhali several times. The witness did not deny having seen the appellant in the house of Kunhali during his visits to the said house. What PW1 stated was only that he was unable to remember whether he had seen the appellant in the house of Kunhali. PW1 admitted that he knew the family members of the appellant even before the incident. From the evidence of PW1 discussed above, it is possible to conclude 18 CRL.A.No. 214 of 2014 that the appellant was a person known to PW1 or, at least, PW1 had occasion to see the appellant before the incident. As the family members of the appellant were known to PW1, it was possible for him to give some material in the FI statement about the appellant so as to locate him. It was possible for PW1 at least to state in the FI statement that the person who stabbed the victim was a person whom the witness had occasion to see before.

21. We read Ext P1 FI statement carefully. Going by it, the assailants alighted from the auto rickshaw in two batches. The first batch consisted of three persons who got down from the vehicle first. The second batch comprised of two persons and they came out from the auto rickshaw slightly later. All the three persons in the first batch went near PW1 and caught hold of him to block him. One of the two persons in the second batch pushed the victim into the booth and the other stabbed the victim. Now see how the three persons in the first batch and the two persons in the second batch are referred to in the FI statement by PW1. Ext P1 recites that the three persons who alighted first from the auto rickshaw were Ali (third accused), with whom PW1 had previous acquaintance, and two others whom PW1 had seen even before. The said reference in the FI statement to the said two persons suggests that they were somewhat familiar to PW1. No such familiarity is indicated in the FI statement while referring to the two persons in the second batch. What is stated in the FI statement is that those two persons alighted from the auto rickshaw and one of them pushed the victim and the other stabbed. At the trial, PW1 identified 19 CRL.A.No. 214 of 2014 the appellant to be the person who stabbed the victim. A reading of the FI statement in its entirety suggests that the assailant who stabbed the victim was a total stranger to PW1. That not, the reference in the FI statement to the said assailant would have been similar to the reference to the two persons in the first batch. In other words, if the appellant was the person who stabbed the victim, in the normal course, it would have been stated in the FI statement that the person who stabbed the victim was a person known to PW1 or a person familiar to PW1 by sight. The person who stabbed the victim is described in the FI statement as a lean and short person with brown complexion. The said description itself indicates that the said person was a total stranger to PW1. The appellant was not a stranger to PW1. As we have already found, the appellant and his family members were known to PW1. When that be so, it cannot be said that the appellant who was known to PW1 was the assailant who was a stranger to the witness. In any event, the benefit of doubt should go to the appellant.

22. It is now the appropriate time to consider the appellant's learned counsel's submission which we mentioned at paragraph 12 of this judgment. It was submitted that the prosecution would be bound by the evidence of PW2 and that her evidence would be fatal to the prosecution. In this connection the learned counsel cited two reported judicial pronouncements which we shall refer to shortly. We discussed the evidence of PW2 at paragraph 11 of this judgment. She spoke that she did not see the assailants at the test identification parade. It was also her evidence that the accused persons were not there among the 20 CRL.A.No. 214 of 2014 assailants. PW2 was completely disloyal to the prosecution and gave evidence against the prosecution. Yet, for reasons best known to the public prosecutor who conducted the case, permission of the court was not sought under Sec.154 of the Indian Evidence Act to put questions to PW2 which might be put in cross-examination by the adverse party. What is generally done is to get the witness declared hostile to the prosecution and to put questions in the nature of cross- examination. The public prosecutor did not choose such a course. PW2 was a witness who did not at all support the prosecution, but supported the defence version that the accused persons were not the assailants. The trial court stated that PW2 was declared hostile. But she was not declared so and no question was put to her to challenge her evidence favourable to the defence. As PW2 was not declared hostile to the prosecution, her evidence is binding on the prosecution. The evidence given by PW2 favourable to the appellant cannot be eschewed. Two decisions of the Supreme Court straight to the point and relied on by the defence are Raja Ram vs State of Rajasthan (2005 SCC (Cri) 1050) and Mukhtiar Ahmed Ansari vs State, NCT of Delhi (2005 SCC (Cri) 1037). The evidence of an eyewitness (PW2) proves that the appellant was not with the assailants. The evidence of the other eyewitness (PW1) cannot be relied on to convict the appellant.

23. The positive result of a test identification parade is only a corroborative piece of evidence for the prosecution. In the present case, the identification of the appellant by PW1 at the test 21 CRL.A.No. 214 of 2014 identification parade is inconsequential. For, the ocular evidence of PW1 and him identifying the appellant at the trial as the person who stabbed the victim are, as already found, unacceptable.

24. Out of six suspects paraded for identification, one was the third accused with whom PW1 admittedly had acquaintance before the incident. Another one was the 4th accused who was a relative of PW1. Yet another one was the appellant who was a person known to PW1 even before the incident. Parading the said three persons for identification by PW1 was nothing but a mockery.

25. PW16 arrested the appellant and the other accused persons on 7.4.2004. On the next day, 8.4.2004, MO1 sword and MO14 footwear were allegedly recovered at the instance of the appellant from an open paddy field. It was only thereafter the test identification parade was conducted. It was conducted on 29.4.2004. Even going by the prosecution version, the appellant was brought to an open paddy field, which lay by the side of a public road, to effect the recovery. PW16 who effected the recovery and who wanted a test identification parade conducted did not speak to any precaution taken to prevent the people seeing and observing the face of the appellant. The evidence does not suggest that his face was covered or masked when he was brought to the open paddy filed lying adjacent to the public road. The test identification parade was conducted on 29.4.2004 after the appellant was brought to the view of the public on 8.4.2004. No sanctity can be attached to such a test identification parade and the result thereof so far as the appellant is concerned. 22 CRL.A.No. 214 of 2014

26. What next, and the last, is the recovery of MO1 sword and MO14 footwear. Sec.27 of the Indian Evidence Act is pressed into service by the prosecution. Ext P6 is the mahazar relating to the recovery and seizure of MOs 1 and 14. PW5 is the independent witness examined to prove the recovery. He did not support the prosecution. He turned hostile to the prosecution. He denied having witnessed the recovery and seizure of MOs 1 and 14. The prosecution did not get anything favourable to it from the evidence of PW5 except his admission that he signed Ext P6.

27. PW16 arrested the accused persons and interrogated them. PW16 spoke that he recovered MOs 1 and 14 at the instance of the appellant and based on the disclosure statement made by him. PW16 deposed to the disclosure statement made by the appellant. We extract it below:

""വടടിവവാളളളും ഒരള ചചെരടിപളളും ഞങ്ങള്‍ കളനളുംകളളതത്തേകക്ക് കവാറക്ക് വടിളടിചക്ക് തപവാകളളുംതപവാള്‍ വഴടിയടില്‍ ഒരള പവാടതത്തേകക്ക് വലടിചക്ക് എറടിഞടിടളണക്ക്. എചന കകൂടടിചകവാണള തപവായവാല്‍ എറടിഞ സ്ഥലവളളും വടടിവവാളകൂളും ചചെരടിപളളും കവാണടിചളതരവാളും."

It was argued that the authorship of concealment was missing in the disclosure statement as the word used was 'ഞങ്ങള്‍' (we) and not 'ഞവാന' (I or me). It was also argued that the alleged disclosure statement would not suggest that the sword and the footwear were thrown away by the appellant himself. It should be understood in what context the word 'ഞങ്ങള്‍' (we) was used in the disclosure statement. We find it difficult to read the disclosure statement as "we threw away the sword 23 CRL.A.No. 214 of 2014 and footwear". It only means, in our opinion, "while we were proceeding in a car to Kunnamkulam". It appears to us that the disclosure statement can be translated into English only in the following manner:

While we were proceeding in a hired car to Kunnamkulam, the sword and the footwear were thrown into a paddy field. If I am taken, I would show the place, the sword and the footwear.

It is true that the disclosure statement does not suggest that the sword and the footwear were thrown away by the appellant himself. In this connection what we should do is only to refer to a decision of a full bench of this court. The decision is Ajayan @ Baby vs State of Kerala (2011 (1) KHC 1). It is held that the authorship of concealment is not sina qua non for admissibility of the statement of the accused under Sec.27 of the Indian Evidence Act.

28. Exts P34 and P35 are reports of chemical examination. Ext P35 proves the blood of the deceased to be of 'B' group. Ext P34 shows that MO1 sword and MO14 footwear were moderately stained with human blood, although the blood group of the stains could not be ascertained as the result of the tests were inconclusive. The failure to ascertain the group of the bloodstains on MOs 1 and 14 cannot be treated as fatal to the prosecution. In this connection we refer to State of Rajasthan vs Teja Ram [(1999) 3 SCC 507] and Gura Singh vs State of Rajasthan [(2001) 2 SCC 205].

29. But, what we have said in the immediately preceding 24 CRL.A.No. 214 of 2014 two paragraphs are not sufficient for the prosecution to bring home the guilt of the appellant. This is a case where the ocular evidence is not at all useful to the prosecution. The prosecution lacks consistency on the nature of the weapon used to stab the victim. PW1 stated in the FI statement that it was a knife. It became a sword at the time of its recovery and seizure. PW1 spoke in court that it was a knife like weapon. He did not state in court even once that it was a sword. He just called it a weapon at the time of its identification by him in court without stating the precise nature of the weapon, whether a sword or a knife. He admitted in cross-examination that he had to change his impression about the nature of the weapon. But, still, he went on to refer to it as a knife during the course of his examination in court. The weapon is referred to as a sword in Ext P6 seizure mahazar and in Ext P34 chemical examination report. The inconsistencies pointed out above do cause suspicion. It is doubtful whether MO1 is the weapon really used in the crime. The bloodstains on it is therefore not useful to the prosecution to the extent of its expectation. Hence the recovery of the sword and the bloodstains on it are not a strong piece of evidence for the prosecution.

30. MO4 was seen lying in the place of occurrence. It was taken from there by PW12, the scientific assistant. According to 25 CRL.A.No. 214 of 2014 the prosecution, MO4 is the case of MO1 sword. Even if it is so, it is a weak piece of evidence in the absence of any other evidence.

31. MO13 is a single footwear. MO14 is also a single footwear. MO13 was seen lying in the place of occurrence and therefore it was seized. MO14 was recovered at the instance of the appellant. According to the learned trial judge, MO13 is the pair of MO14. But no witness spoke so. Even the investigating officer did not state so. It is impossible to gather from the description of MO13 in Ext P4 scene mahazar and the description of MO14 in Ext P6 seizure mahazar that they are a pair. MO14 is described in Ext P6 as the footwear of the right leg. There is no mention or indication in Ext P4 that MO13 is the footwear of the left leg. There is no evidence whatsoever to find that one is the pair of the other. The recovery of MO14 can no way incriminate the appellant as the same is not proved to be the pair of MO13. For the reasons stated in this paragraph and in paragraphs 29 and 30 of this judgment, we find that the recovery of MOs 1 and 14 is not good evidence for the prosecution to prove the complicity of the appellant.

32. We sum up and conclude. The ocular evidence of PW1 is not acceptable and it does not prove the appellant guilty. The evidence of PW2, who too is an ocular witness, proves that the appellant was not among the assailants. The test identification 26 CRL.A.No. 214 of 2014 parade was a useless exercise as against the appellant. It is doubtful whether MO1 is the weapon used in the crime. MO14 is not proved to have any connection to the crime alleged against the appellant. Therefore Sec.27 of the Indian Evidence Act is beyond the reach of the prosecution. We allow the appeal unhesitatingly.

33. The appeal is allowed. The impugned conviction and sentences are set aside. The appellant is acquitted of the charges under Secs 302 and 449 of IPC. He is set at liberty in this case. He shall be released from custody if his further detention is not necessary in connection with any other case.

Sd/-

A.M.SHAFFIQUE JUDGE Sd/-


                                                 A.M.BABU

     sks/26.2.2019                                 JUDGE

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