Anilkumar @ Ani and others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 23RD DAY OF NOVEMBER 2020 / 2ND AGRAHAYANA, 1942** ## **CRL.A.No.1455 OF 2005** **AGAINST THE ORDER/JUDGMENT IN SC 387/2001 DATED 23-08-2005 OF ADDITIONAL DISTRICT COURT(ADHOC 2), THRISSUR** ## **APPELLANTS/ACCUSED NOS.1 TO 7:** - **1 ANILKUMAR @ ANI, S/O.VELAYUDHAN, PULINCHERY VEEDU,, ATTAYOOR, NAMBAZHIKKAD, THRISSUR DISTRICT.** - **2 DILEEP, S/O.BHASKARAN, CHEMBIL VEEDU, NAMBAZHIKKAD, THRISSUR DISTRICT.** - **3 SANTHOSH, S/O.BALAN, KANKAPPURAKKAL VEEDU, ATTAYOOR, THRISSUR DISTRICT** - **4 KRISHNAPRASAD @ PRASAD,S/O. SANKARANARAYANAN, PAYYAPPATT VEEDU, ATTAYOOR, THRISSUR DISTRICT.** - **5 NISHAD, S/O.KOCHUMON, KANKAPURAKKAL VEEDU, ATTAYOOR, THRISSUR DISTRICT.** - **6 RAMESH, S/O.KUMARAN, EAAHAVAM VALAPPIL VEEDU, ATTAYOOR, THRISSUR DISTRICT.** - **7 BABURAJ, S/O.GOPALAN, EAZHAVAM, VALAPPIL VEEDU, ATTAYOOR, THRISSUR DISTRICT.** **BY ADVS. SRI.V.M.KRISHNAKUMAR SRI.C.A.CHACKO SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE SRI.S.RAJEEV SRI.V.JOHN SEBASTIAN RALPH SRI.G.SREEKUMAR (CHELUR)** ## **RESPONDENT/COMPLAINANT:** ## **STATE OF KERALA** **REP. BY THE CIRCLE INSPECTOR OF POLICE, GURUVAYOOR, THROUGH, THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** CRL.A.No.1455 OF 2005 2 **R1 BY SRI.K.B.UDAYAKUMAR (SR.P.P)** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-112020, THE COURT ON 10-11-2020 DELIVERED THE FOLLOWING:** CRL.A.No.1455 OF 2005 3 ## **JUDGMENT** **Dated this the 23[rd] day of November 2020** The appellants are the accused in Sessions Case No.387/2001 on the file of the Additional Sessions Judge, Thrissur Fast Track Court II (AD HOC), Thrissur. 2. The above case is charge sheeted against the appellants, by the Circle Inspector of Police, Guruvayoor alleging offences punishable under Sections 148, 457, 307, 324 and 427 read with Section 149 I.P.C. The alleged incident in this case happened 21 years back. Trial court convicted the accused after 6 years from the date of incident. This appeal is pending before this Court for the last 15 years! 3. The prosecution case is that, the accused with the common intention of committing murder of charge witness No.2, formed themselves into an unlawful assembly armed with deadly weapons on CRL.A.No.1455 OF 2005 4 15.08.1999 at 9.20.a.m., and committed the offence of rioting, offence punishable under Section 148 read with 149 I.P.C. It is also alleged that at the same place and time, the 1[st] accused inflicted a cut injury on the head of CW2 by a sword and CW2 ran away to save his life to the house of CW1, Thanka at Attayoor. It is also alleged that, all the accused followed CW2 and accused No.1 to 4 trespassed into the house of CW1 with deadly weapons, swords and pipes. It is alleged that, accused No.1 and 2 inflicted various cut injuries on the head and both the arms of CW2 using the swords held by them. Accused No.3 and 4 beat CW2 with iron pipes on different parts of the body causing grievous injury to him and attempted to commit murder of him and thereby committed the offence under Section 452, 307, 324 read with Section 149 I.P.C. The offence under Section 427 read with 149 I.P.C. is also alleged. All the accused except, A8 and A9 appeared before the Lower Court and faced trial. It is reported that, CRL.A.No.1455 OF 2005 5 A9 died and his case was abated. 4. To substantiate the case, prosecution examined PW1 to PW13. Exhibits P1 to P20 are the exhibits. DW1 and DW2 are the defense witnesses. D1 to D3 are the exhibits marked on the side of the defence. MO1 to MO10 are the material objects. After going through the evidence and the documents, the trial Court found that, the accused committed the offence under Sections 148, 452, 427, 324 and 307 read with 149 I.P.C. Separate sentence was also imposed on the accused. Aggrieved by the conviction and sentence, this Criminal appeal is filed. 5. Subsequently, the 8[th] accused surrendered before the Lower Court and faced trial. He was acquitted by the Trial Court as per Judgment dated 12.02.2018 in Sessions Case No.785/2018. **==> picture [390 x 12] intentionally omitted <==** altogether 13 witnesses were examined. PW2 is the injured in this case. PW1 is an eye witness and he is the informant. PW3 is examined to prove that, CRL.A.No.1455 OF 2005 6 he took PW2 to hospital. PW4 is a scene mahazar witness. PW5 is examined to prove Exhibit P5 recovery mahazar. As per that mahazar MO3 was recovered based on the confession statement of the 2[nd] accused. PW6 is the daughter of PW1. She is an eye witness. PW7 is also an eye witness. PW8 is the doctor, who examined PW2 and issued Exhibit-P6 wound certificate. PW9 is the witness in P8 mahazar. PW10 is the Village Officer, through whom Exhibit-P9 sketch was marked. PW11 is examined to prove Exhibit P10, ownership certificate. He is the Secretary of the local Panchayath. PW12 is the Sub Inspector, who registered Exhibit P11 FIR. PW13 is the Circle Inspector, who conducted the investigation. 7. The Prosecution mainly relied the evidence of PW2, the injured and PW1, PW6 and PW7 who are the alleged eye witnesses in this case. 8. Heard the learned counsel for the appellants and the learned Public Prosecutor. 9. The learned counsel for the appellants CRL.A.No.1455 OF 2005 7 submitted that, there are altogether nine accused in this case. Different overt act is attributed to all the accused. The accused were not identified by the witnesses from the dock, while giving evidence before the Court. The learned counsel for the appellants submitted that, for that simple reason, the accused is entitled the benefit of doubt. The learned counsel for accused No.5 to 7 submitted that, as far as accused No.5 to 7 are concerned, there are no specific overt act attributed against them. The learned counsel for the appellants also submitted that, in the first version to the doctor, their names are not even mentioned by the injured. The learned counsel for the appellants submitted that, for that simple reason, it is clear that, they were subsequently impleaded as accused with some ulterior motive. The learned counsel for the appellants submitted that, therefore, accused No.5 to 7 are entitled the benefit of doubt. The learned counsel for the appellants also submitted that, the Trial Court CRL.A.No.1455 OF 2005 8 acquitted accused No.8 for the reason that, there is no specific overt act attributed against him. According to the counsel, the same principle is applicable to accused No.5 to 7 also. 10. The learned Public Prosecutor submitted that, there is ample evidence to prove the offence under Section 307 I.P.C. and the other offences. The learned Public Prosecutor submitted that, there is evidence of injured witness and his evidence is corroborated by PW1, PW6 and PW7. The learned Public Prosecutor submitted that, there is nothing to disbelieve these witnesses. The learned Public Prosecutor submitted that, the accused are known people to the injured witness. Therefore, simply because they are not identified specifically from the Court, that is not a reason to acquit them. The learned Public Prosecutor submitted that, the witnesses deposed that, except accused No.8 and 9, all the others are there in the Court. Therefore, the learned Public Prosecutor submitted that, the same is enough as far as the identification of CRL.A.No.1455 OF 2005 **==> picture [7 x 8] intentionally omitted <==** accused is concerned. Therefore, the learned Public Prosecutor submitted that, this Court may not interfere with the conviction and sentence imposed by the Trial Court for want of identification by the witnesses. 11. The point for consideration in this case is, whether the accused committed the offences under Section 148, 324, 307 read with Section 149 I.P.C. 12. It is a fact that, 7 accused faced trial before the Lower Court and all of them were convicted and sentenced by the Lower Court. It is now settled by several decisions of this Court and the Apex Court that, when there are specific overt acts attributed to the accused in a case, it is the duty of the prosecution, to prove the identity of the witnesses from the Court. The identification of the witnesses from the Court is important in these type of cases. I perused the evidence of the witnesses in this case. PW1 is the informant and an eye witness to the incident. He deposed before the CRL.A.No.1455 OF 2005 10 Court regarding the identification of the accused in the following manner. "പ്രസസാദദും മരരിച്ച സുകുമസാരനദും ഒഴരിച്ചുള്ള മറ പ്രതരികള്‍ ഇനന്ന് കകസാടതരിയരിലുണന്ന്.” It is also stated by PW1 in “ ” the chief examination itself that പ്രതരികളളെ അറരിയസാദും. . Again it is stated by him in the chief examination that, “പ്രതരികള്‍ ആളക 9 കപേരസാണന്ന് ഉണസായരിരുനതന്ന്.” 13. As far as PW2, the injured is concerned, the evidence adduced by PW2 regarding the identification of the accused is like this. “സുകുമസാരനദും രസാകകഷദും കൃഷ്ണപ്രസസാദദും ഒഴരിച്ചന്ന് മറള്ളവര്‍ കകസാടതരിയരിലുണന്ന്.” PW6 is another eyewitness to the incident. He deposed before the Court about the identification of the accused like this. “പ്രതരികളെരില്‍ അനരില്‍കുമസാര്‍, ദരിലലീപേന്ന്, കൃഷ്ണപ്രസസാദന്ന്, സകനസാഷന്ന്, ബസാബുരസാജന്ന്, നരിഷസാദന്ന്, രകമഷന്ന് എനരിവരുണന്ന്.” PW7 deposed like this, “ഞസാന്‍ പേറഞ്ഞ പ്രതരികളെരില്‍ അനരി, ദരിലരി, സകനസാഷന്ന്, പ്രസസാദന്ന്, നരിഷസാദന്ന്, രകമഷന്ന്, ബസാബു എനരിവര്‍ കൂടരിലുണന്ന്. സുകുമസാരന്‍ മരരിച്ചു. രസാകകഷന്ന് കൂടരിലരില. അവളര എനരിക്കറരിയസാദും.” 14. This court in Judgment dated 27.10.2020 in CRL.A.No.1455 OF 2005 11 Crl.A.No. 1249/2005 considered this point in detail. The same is extracted here under; _“ 11. This Court specifically found that if the trial court merely recorded the rank number of the_ _accused according to the charge and if no effort is taken by him to certify in the deposition that persons referred by witnesses as one of the member of the unlawful assembly is the person standing on the box, it is fatal to the prosecution. If there is no proper identification of the accused by the witnesses from the court, the accused is entitled to benefit of doubt. In Crl.A. No.1461/2005 the same point is considered by this Court. The relevant paragraphs are extracted hereunder:_ _“15. In addition to this, the learned counsel for the appellant submitted that PW2 and PW3 has not identified the accused from the dock. The counsel relied the judgment of this Court in Mohammed v. State of Kerala (2002 KHC 969) and Vayalali Girishan and others v. State of Kerala (2016 CRL.A.No.1249 OF 2005 9 KHC 204). The relevant portion of the judgment in Mohammed's case is extracted hereunder: “The depositions should either have included a specific endorsement by the Judge that the accused in the dock was identified by the witness or that the answer regarding identification was made pointing towards the accused in the dock or some other indication that the witness has identified the person available in the box as the perpetrator of the crime about which the witness is deposing before court. This is so because it is essential in a criminal trial, that the identity of the person who faces the trial as the perpetrator of the crime is established. For this to be achieved the witnesses to the_ CRL.A.No.1455 OF 2005 12 _transaction in question should specifically certify the identity of the person in the dock as the person available at the scene of occurrence, if at all the prosecution case is that the presence of the accused at the scene of occurrence was witnessed by the particular witness. This aspect was highlighted by this court in some earlier judgments; but notwithstanding this even special courts which try cases involving very high punishment do not appear to give sufficient attention to this important aspect. The position is hereby reiterated for strict compliance by the subordinate courts.”_ _16. The relevant portion in Vayalali Girishan's case (supra) is extracted hereunder: “We are unable to discern for certain as to whether the witness was referring to the particular accused whose name finds a place in the charge or to some other person. Obviously the witness will not be aware of the rank number of the person standing in the dock in the array of the accused. There is absolutely no clue available from the deposition either, as the court has not recorded this aspect in the evidence as to the manner in which the particular accused was identified. The Apex Court as well as this Court, time and again, have reminded the trial Courts, the importance of recording in the deposition the most cardinal fact that the witness has specifically identified the accused as the person who was involved in the crime, so that the complicity and presence of the accused at the scene of crime could be fixed with exactitude.”_ _17. Admittedly, in this case, PW2 and PW3 have not identified the accused from the dock. No such endorsement to_ CRL.A.No.1455 OF 2005 13 _that effect by the trial judge also. The learned Public Prosecutor vehemently argued that the identity of the accused is not disputed in the trial. But in the above judgments, this court observed that it is the duty of the prosecution to see that the witness identifies the accused from the dock at the time of trial. In the light of the above judgments, I think, the accused is entitled to the benefit of doubt on this ground also. “_ _12. Simply because in the court charge or in the final report submitted by the police the rank of the accused is mentioned, the prosecution can't prove the identity of an accused unless the witnesses identified the accused from the court. In Rafeeque's case (supra) the court observed like this:-_ _“14. The appellate court, having found that the evidence of PW1 and PW2 is insufficient to prove that the first accused was the driver of the lorry, has taken much strain to find that the recitals in the documents produced and proved by the prosecution would establish the identity of the driver of the lorry. This view adopted by the appellate court is wrong. Substantive evidence to prove the identity of an offender is the statement of the witness in the court, identifying the accused in the court as the offender or the person who committed the act. Identity of the offender cannot be proved merely on the basis that the name of the accused is mentioned in the documents prepared by the detecting officer as the person who committed the offensive act. “_ _13. In the light of the above decisions and discussions, I think in this case, the appellants are entitled the benefit of doubt. The Public_ CRL.A.No.1455 OF 2005 14 _Prosecutor also conceded on this aspect that the accused were not properly identified by the witnesses from the box at the time of trial. That is fatal to the prosecution, especially when there are 15 accused in this case. It is also to be noted that some of the accused are with same name also. There is no identification parade also. In such situation, the identification of the accused from the box by the witnesses at the time of trial is mandatory as held by the Division Bench of this Court. In the light of the above discussion, I think the appellants are entitled to the benefit of doubt. “_ 15. In the light of the above decision, in which the Division Bench decision of this Court also considered in detail, I think, the identification of the accused by the witnesses in this case are not sufficient to convict them in a serious case like this. It is true that some of witnesses stated that, the accused are in the dock. But in the light of the above judgment in which the Division Bench of this Court Considered this point in detail, the same is not sufficient. The Division Bench of this Court observed that, if the accused was not specifically pointed out by their name or specific features by the witnesses and no CRL.A.No.1455 OF 2005 15 endeavor was made by the court to Individually fix each of the accused , the accused is entitle benefit of doubt. 16. This Court also observed that while recording the identity of the accused, it has to be specifically recorded that the accused standing in the dock is identified by the witness and if there is any failure to that effect, the accused are entitle to the benefit of doubt. 17. According to me, the identification of the accused by the injured and other witnesses in this case are not sufficient to prove the identity of the accused beyond reasonable doubt. Therefore I think that, the accused is entitled to get the benefit of doubt. 18. Moreover, accused No.5 to 7 are considered, their name is not even mentioned by the injured in his first version to the doctor. Moreover, the 8[th] accused is acquitted by the trial court as per judgment dated 12.02.2018 in CRL.A.No.1455 OF 2005 16 Sessions Case No. 735/2008. The trial court considered the evidence against the 8[th] accused in para 19 of that judgment, which is extracted here. _”19.Therefore, what is precipitated against the accused herein in the evidence of PW1 and PW2 is only with regard to the presence of that accused along with the other accused in the charge sheet. The cardinal question to be answered in this case is whether the mere presence of the accused in the group of culprits is sufficient to rope in him with the aid of Sec.149 of I.P.C. The learned Public Prosecutor argued that mere presence is sufficient to prove to convict the accused with the aid of Sec.149 of I.P.C. Whereas the learned counsel for the accused relied upon the judgment of the Hon'ble Supreme Court Vijay Pandurang Thakre and others v. State of Maharashtra (2017 KHC 6079) and argued that mere presence of the accused is not suffiecient. While dealing with the charge under Sections 302,307,324,336,427 and 506 r/w 149 I.P.C. the Hon'ble Appex Court held that none of the Sections 147,148,149 applies to a person who is merely present in any unlawful assembly unless he actively participates in the rioting with the necessary criminal intention or shares the common intention of the unlawful assembly. In that case the Hon'ble Supreme Court held that even mere possession of small sticks by the accused is not clear evidence of common object. In view of the principles laid down in the said judgment aforesaid arguments for the persecution_ CRL.A.No.1455 OF 2005 17 _has no force. In the case in hand there is no credible evidence of any overt act or possessing of any arms by the accused herein. He had not even entered inside the house for committing crime. It is significant that in this case even the charge under Sec.452 I.P.C will not independently stand against the accused. The evidence on materials only bring home that the accused herein waited outside the house when the occurrence took place. There is absolutely no materials to believe that he waited there with common object to cause hurt or murder of PW2. It is significant that PW1 stated that the accused will not have any special enmity against him. The prosecution is not successful to prove sharing of common object by the accused along with the other accused and committed the crimes except waiting outside the house. It is to be noted that even neighbours and the members of the public who have knowledge or object in the matter also may anxiously wait outside the house where the occurrence happened. So the accused is entitled to benefit of doubt. The prosecution failed to prove the charges under sections 143,147,148,452,324,427 and 307 r/w 149 I.P.C . the points are answered against the prosecution.”_ 19. I see no reason to take a different stand as far as these accused No. 5 to 7 is concerned also. Therefore, I think, on all grounds the accused in this case are entitle the benefit of doubt. CRL.A.No.1455 OF 2005 18 Therefore, this Crl.Appeal is allowed. The conviction and sentence imposed on the appellants are set aside. Appellants are set at liberty. Bail bond , if any, executed by the appellants cancelled. **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **JUDGE** **NB/jms //True Copy// P.A TO Judge**