Criminal Appeal No. 820 of 2010, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **WEDNESDAY, THE 31ST DAY OF AUGUST 2016/9TH BHADRA, 1938** ## **CRL.A.No. 820 of 2010** ## **----------------------------------S.C.NO. 456/2011 OF THE ADDITIONAL SESSION COURT, THRISSUR (FAST TRACK COURT NO.II, ADHOC)** ## **--------------------** **APPELLANT(S)/ACCUSED 3 TO 5 : ---------------------------------------------------** **1. PRAKASAN, S/O. PATHAPPILLY VEETTIL NARAYANAN, MALAYATOOR VILLAGE, DESOM.** **2. SHERLY, S/O. MUNDAKKAL VEETTIL KUMARAN, MALAYATOOR VILLAGE, DESOM.** **3. SHAJI @ MALA, S/O. IDATHATTIL VEETTIL THANKAPPAN, MALAYATOOR VILLAGE, MALAYATOOR DESOM.** - **BY SRI.B.RAMAN PILLAI (SENIOR ADVOCATE) ADVS. SRI.R.ANIL** **SRI.M.SUNILKUMAR SRI.SUJESH MENON V.B. SRI.T.ANIL KUMAR SRI.MANU TOM SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.SAIBY JOSE KIDANGOOR SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE** ## **RESPONDENT(S)/COMPLAINANT :** **----------------------------------------------------** **STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., (CRIME NO.154/1998 OF KUNNAMKULAM POLICE STATION).** ## **BY SR. PUBLIC PROSECUTOR SRI. C.S.HRITHWIK** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **B. KEMAL PASHA, J.** ................................................................ Crl. Appeal No. 820 of 2010 ............................................................... Dated this the 31[st] day of August, 2016 ## **J U D G M E N T** The appellants are A3, A4 and A5 respectively in S.C.No.456 of 2001 of the Additional Sessions Court(AdhocII), Thrissur. The appellants along with A1, A2 and A6 to A11 faced the trial. A2 did not faced the trial and consequently the case against him was split up and refiled as S.C.No.254/2010. All the other accused except the appellants and A2, were acquitted. 2. The appellants along with the other accused were charge sheeted by the Circle Inspector of Police, Kunnamkulam in Crime No.154/1998 of the Kunnamkulam Police Station, for the offences punishable under Sections 397, 414 and 120(b) of the Indian Penal Code. 3. The prosecution case is as follows. On 8.3.1998 A1, A2 and A9 hatched a criminal conspiracy to commit Crl. Appeal No. 820 of 2010 -: 2 :- Highway dacoity, for which, they assembled at the finance office of A1 and formed the aforesaid common object. PW1, as the driver, along with PW2 as the cleaner, were taking a lorry loaded of pepper from Sulthan Bathery to Kochi on 25.03.1998, by lorry bearing Reg.No.KL-12-5673. A1, A2 and A4 had allegedly followed the lorry by Tata Sierra car bearing Reg.No.KL-7Q-383 belonged to A1. A3 and A5 along with three other unidentified accused also came behind the lorry by a blue Maruti Car. When the lorry reached a place called Kanippayyur, which is one kilometer north to the Kunnamkulam Police Station, by 3 a.m. on 26.03.1998, swiftly, the persons in the blue Maruti car overtook the lorry and obstructed the lorry whereby PW1 stopped the lorry. An unidentified accused by name Sorab Singh came out of the blue Maruti car and came to the right side of the lorry and placed PW1 driver at gun point, by placing a revolver on the neck of PW1. A5 and three others also came out of the blue Maruti car and they came to the Crl. Appeal No. 820 of 2010 -: 3 :- left side of the lorry and got into the cabin. The aforesaid Sorab Singh also got inside the cabin and all of them overpowered PW1 and PW2. Their hands, mouth and face were tied with the _lungi_ worn by PW2 and _dhothi_ worn by PW1 and they were thrown to the rear portion of the cabin. The said accused persons took control of the lorry and proceeded forward, piloted by the said Maruti 800 car as well as a Tata Sierra Car. 4. The lorry loaded with pepper was allegedly unloaded at Kalady in a godown owned by the partnership firm of A2 and A7. It is alleged that A6 and another unidentified accused took PW1 and PW2 into the Maruti Car from the cabin of the lorry and administrated some liquid to them by which they became unconscious. Finally, they were thrown to a rubber estate, near the house of CW17. It is alleged that the accused divided and apportioned the booty among them and sold it on piecemeal basis at the market places of Perumbavoor, Aluva, Kalady, Angamaly and Crl. Appeal No. 820 of 2010 -: 4 :- Wadakkenchery. A11 had allegedly, stored the booty and concealed the same with the knowledge that it was the subject matter of dacoity. 5. On the basis of Ext.P1 first information statement furnished by PW1, the Muvattupuzha Police, at first registered Crime No.171/98. The same was handed over to Kunnamkulam Police Station where the Crime was reregistered as Crime No.154/1998. As per the versions of PW1 in Ext.P1, when the lorry reached Perumbilavu, the Maruti car overtook the lorry and obstructed the lorry. Thereafter, a fatty man came out of the Maruti car and directed PW1 in Hindi language, to get out of the lorry. A revolver was placed on his neck by the said man. By that time, three other persons came through the left side of the lorry and entered inside the cabin and all of them overpowered PW1 and PW2. Thereafter, they were dragged out of the lorry and they were taken to the Maruti Car. 6. PW56 Circle Inspector of Police, Kunnamkulam Crl. Appeal No. 820 of 2010 -: 5 :- conducted the investigation. A2, A3 and A4 were taken into custody. Their arrest was not recorded. Consequently, the wives of A2 and A3 approached this Court through O.P.(C) No.19026/98 and the mother and the wife of A4 approached this Court through O.P.(C) No.19018/98 complaining that the said accused persons were illegally taken away in mysterious circumstances by the police on 30.09.1998. The aforesaid O.Ps were disposed of on 7.10.1998, when it was reported before this Court that the arrest of A2, A3 and A4 were recorded on 05.10.1998. The investigation conducted by PW56 was continued by PW61, who laid the final report. 7. On the side of the prosecution PWs.1 to 61 were examined, Exts.P1 to P86 were marked, and MOs.1 and 2 were identified. The accused were examined under Section 313 Cr.P.C. According to the court below, there were no grounds to acquit the accused under Section 232 Cr.P.C., and consequently, they were called upon to enter on their defence. On the side of A3 and A4, Exts.D1 and D2 were Crl. Appeal No. 820 of 2010 -: 6 :- marked. Exts.D1 and D2 are the judgments of this Court in the aforesaid O.Ps. After hearing both sides, the court below found the appellants guilty of the offence under Section 397 IPC and convicted them thereunder, and each of them were sentenced to undergo rigorous imprisonment for seven years. 8. Heard the learned Senior Counsel Sri. B. Raman Pillai, learned counsel Sri. S. Rajeev and Sri.Saiby Jose Kidangoor for the appellants and the learned Public Prosecutor. 9. On behalf of the appellants, it has been argued that the conviction entered by the court below is not based on any legal evidence and the conviction as such is quite illegal and unnecessary. The learned Senior Counsel for A4 has taken this Court in detail through the evidence adduced by the prosecution before the court below. The learned Senior Counsel has pointed out that there was a Test Identification Parade in this case conducted by PW45, Crl. Appeal No. 820 of 2010 -: 7 :- learned Judicial First Class Magistrate, Chavakkad. PW45 has recorded Ext.P45 proceedings of the Test Identification Parade. In the Test Identification Parade, PW1 and PW2 were taken as witnesses to identify the accused. According to PW45 and as per the contents of Ext.P45, PW1 and PW2 had identified A2 and A3 in the case. No other accused were identified by them. It has to be noted that A2 to A5 were the accused persons who were made to stand in the Test Identification Parade. Even then, PWs.1 and 2 could identify A2 and A3 only. They did not identify A4 and A5. 10. According to the learned Senior Counsel for A4, during the evidence in court, PW1 made a somersault and he had chosen to identify A4 as one of the persons identified by him in the Test Identification Parade and also as the person who had rushed to him with the revolver by getting out the blue Maruti Car. In court, PW1 has not identified A3 who was identified by him in the Test Identification Parade. It has been argued that from the evidence of PW45, the Crl. Appeal No. 820 of 2010 -: 8 :- contents of Ext.P45, and the evidence of PW1, the identity of the 4[th] accused by PW1 in court cannot be believed. It has also been argued that in the light of his identification of the 4[th] accused alone in court, the identification of A2 and A3 in the Test Identification Parade, also cannot be believed. 11. All the learned counsel for the appellants have pointed out that the court below has treated the evidence of PW56 as gospel truth and relied on the so-called recoveries conducted on piecemeal basis, as substantive evidence to convict these appellants. According to PW56, on the basis of Ext.P57 statement allegedly furnished by A4, he reached the shop of CW29 along with A4, and seized a quantity of pepper through Ext.P22 mahazar in the presence of PW19. CW29 shop owner was not examined. Ext.P55 was the statement allegedly furnished by A4 before PW56. Even though the same is extracted as Ext.P55, PW56 has not chosen to depose before the court below as to the information allegedly furnished by A4 before him. PW56 has Crl. Appeal No. 820 of 2010 -: 9 :- simply mentioned that Ext.P55 statement was furnished by A4. So long as he has not opted to reproduce the statement before the court below as evidence, the same could not have been considered as information furnished by A4 which led to the discovery within the meaning of Section 27 of the Evidence Act. Similar is the case with all the recoveries allegedly effected by PW56. PW19 attester of Ext.P22 has not supported the case of PW56. He has not identified A4. 12. Similarly, on the basis of Ext.P57 information allegedly furnished by A4, he along with A4 reached the shop of PW51 and recovered a quantity of pepper through Ext.P36 mahazar in the presence of PW52 and PW44. PW52 has admitted his signature in Ext.P36. At the same time, he has deposed that he did not know as to what was written in Ext.P36. He has not stated anything regarding the presence of A4. PW44 has admitted his signature in Ext.P36 and A4 was present when he affixed is signature in Ext.P36. At the same time, he has not deposed that Crl. Appeal No. 820 of 2010 -: 10 :- recovery was effected at the instance of A4 and that A4 was present at the time of such recovery. 13. PW51 was the shop owner. He has clearly deposed that he did not know A4. According to him, none of the accused were present along with the police at the time when he handed over 700 kgs. of pepper to the police. 14. According to PW56, on the basis of Ext.P62 statement furnished by A4, he reached the shop of PW20 on 10.10.1998 and recovered a quantity of pepper through Ext.P23 mahazar in the presence of PW21. PW20 has clearly denied the presence of A4. According to him, he did not know A4. PW21 also has not identified A4. 15. The learned counsel for A5 has invited the attention of this Court to the evidence of PW56 relating to the recoveries allegedly effected at the instance of A5 in the case and has argued that none of the said recoveries can be believed. According to PW56, on the basis of Ext.P63 information allegedly furnished by A5, he went to the shop of Crl. Appeal No. 820 of 2010 -: 11 :- CW43 along with A5 and recovered a quantity of pepper in the presence of PW22 through Ext.P24 mahazar. PW22 has not identified A5. 16. According to PW56, as per Ext.P64 information allegedly furnished by A5, he went to the shop of PW23 along with A5 on 12.10.1998 and recovered a quantity of pepper in the presence of PW24 through Ext.P25 mahazar. Either PW23 or PW24 has not identified A5. 17. The learned counsel for A3 has taken this Court through the evidence of PW56 relating to the so-called recoveries allegedly made by PW56 at the instance of A3. According to PW56, on the basis of Ext.P58 information allegedly furnished by A3, he reached the shop of PW51 along with A3, and recovered a quantity of pepper through Ext.P37 mahazar. PW51 has not identified A3. According to him, none of the accused were present along with the police at the time when he handed over the pepper to the police. 18. According to PW56, on the basis of Ext.P66 Crl. Appeal No. 820 of 2010 -: 12 :- information allegedly furnished by A3, he reached the shop of A11 along with A3 on 12.10.1998 and recovered a quantity of pepper in the presence of PW26, through Ext.P26 mahazar. According to PW26, none of the accused were present along with PW56 at the time when he handed over the pepper to PW56. 19. According to PW56, on the basis of Ext.P59 information allegedly furnished by A3, he went to the shop of PW35 along with A3 and recovered a quantity of pepper on 09.10.1998 in the presence of PW36, through Ext.P32 mahazar. PW35 and PW36 have not identified any of the accused. 20. According to PW56, on the basis of Ext.P61 information allegedly furnished by A3, he reached the shop of PW38 along with A3 on 09.10.1998, and recovered a quantity of pepper in the presence of PW39, through Ext.P33 mahazar. PW38 and PW39 have not identified any of the accused. Crl. Appeal No. 820 of 2010 -: 13 :- 21. The evidence of PW56 discussed above is the only evidence available before the court below. It is evident from paragraph 77 of the impugned judgment that the court below has treated the aforesaid evidence of PW56 as substantive piece of evidence to enter the conviction. At the same time, the court below has failed to take note of the fact that PW56 has not chosen to speak before the court below about the actual information allegedly furnished by A4, A5 as well as A3. Apart from stating that the said accused persons had made the statements contained in those documents furnished before the court below as extracts of their statements, he had not cared to reproduce the statements as such. Primarily, the evidence that can be adduced with regard to the fact that the said accused persons had informed him something is the information itself and that information has to be reproduced as such by the concerned person who received the said information. When PW56 has not spoken to with regard to the information allegedly Crl. Appeal No. 820 of 2010 -: 14 :- furnished by A4, A5 and A3 before him which allegedly led to the discovery, such statements could not have been admitted by the court below as evidence under Section 27 of the Indian Evidence Act. Even when such statements are admitted as information furnished by the said accused persons, and even when such discoveries are proved, at the most the said statements could be made use of as corroborate piece of evidence only, within the meaning of Section 27 of the Evidence Act. Strangely enough, the court below has not even cared to state that the said statements were admissible under Section 27 of the Indian Evidence Act. It seems that simply believing the versions of PW56, in the absence of any corroborative piece of evidence, the court below has chosen to treat the evidence of PW6 as gospel truth. 22. Coupled with the so-called recoveries effected by PW56 at the instance of A4, A5 and A3, the court below has considered the identification of A4 by PW1 in court to convict Crl. Appeal No. 820 of 2010 -: 15 :- the said accused persons. Regarding the evidence of PW1, with regard to his identification of A4 in court, at any stretch of imagination, the same cannot be believed. As per Ext.P45 proceedings which were prepared by PW45 during the Test Identification Parade and as per the evidence of PW45, PW1 and PW2 had identified A2 and A3 in the case in the Test Identification Parade. 23. The specific case of PW1 in the first information statement is that a fatty man, who was speaking Hindi, came out of the blue Maruti Car, and approached him through the right side of the lorry and directed him to get down. When he did not care to do it, a revolver was placed on his neck by that fatty man. The said fatty man is an unidentified accused, even according to PW56. When PW1 had a specific case in Ext.P1 first information statement with regard to the unidentified man, whose identity has not been revealed in the course of investigation, PW1 has substituted A4 as the said man. The prosecution has no case that it Crl. Appeal No. 820 of 2010 -: 16 :- was A4 who had approached the lorry through the right side and had approached PW1 with a revolver. The prosecution has no case that A4 was travelling by the blue Maruti car. It is the specific case of the prosecution that A4 was travelling by the Tata Sierra Car. 24. Apart from the above, the identification of A4 by PW1 cannot be believed on another count also. He had not identified A4 in the Test Identification Parade, even though A4 was also present in the Test Identification Parade. He had identified A2 and A3 only. When he came to depose in Court, he could not identify A3. A2 has not faced the trial. Instead of A2 and A3, he had chosen to identify A4 in court. He has clearly admitted in cross-examination that he was seeing A4 for the first time in court. He has no case that he could see A4 in the Test Identification Parade. From the evidence of PW45 and the contents of Ext.P45, it is evident that A4 was also standing in the Test Identification Parade. When PW1 has deposed that he was seeing A4 for the first Crl. Appeal No. 820 of 2010 -: 17 :- time in court, his evidence regarding the identification as such cannot be believed. 25. Apart from the above, it is trite law that in the absence of the Test Identification Parade, the evidence of a witness regarding the identification for the first time in court cannot be relied on as proper identification. In this connection, the learned counsel for the appellants has invited the attention of this Court to the decision in _**Vijayan v. State of Keral**_ a _[1999 (1) KLT 760(SC)]_ . Here, in this case, there was a Test Identification Parade. At the same time, in the Test Identification Parade also PW1 did not identify A4. Therefore, his identification of A4 for the first time in court cannot be believed for any purpose at all. The court below has committed a grave error in relying on the so-called identification of A4 by PW1 for the first time in court. 26. Even though PW2 had witnessed the entire incident, he has not identified any of the accused in court. It Crl. Appeal No. 820 of 2010 -: 18 :- seems that he had identified A2 and A3 in the Test Identification Parade in the presence of PW45. It has been pointed out that he could not identify even A3 before the court below during trial. 27. From all the discussions made above, this Court is satisfied that there is no legal evidence in this case to convict A3, A4 and A5, and their conviction and sentence passed by the court below are not legally sustainable. Therefore, the conviction and sentence passed by the court below are liable to be set aside. In the result, this Criminal Appeal is allowed, and the conviction and sentence passed by the court below are set aside. The appellants stand acquitted. ## **Sd/- B. KEMAL PASHA, JUDGE.** ul/- // true copy // P.S. to Judge.