Criminal Revision Petition No. 514 of 2005

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **THURSDAY, THE 23RD DAY OF JUNE 2016/2ND ASHADHA, 1938** **CRL.REV.PET.NO. 514 OF 2005 ( ) --------------------------------** **AGAINST THE JUDGMENT IN CRA NO.383/2001 OF ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT-II, PALAKKAD DATED 14-01-2005** **AGAINST THE JUDGMENT IN SC NO.76/1997 OF THE ASSISTANT SESSIONS JUDGE (PRL), PALAKKAD DATED 20-09-2001** **------------------------** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED::** **-----------------------------------------** **MANOHARAN, AGED 34 YEARS, S/O. KARUPPASWAMY KOUNTER, THIRUMALAYAMPALAYAM, COIMBATORE.** **BY ADVS.SRI.U.MUHAMMED MUSTHAFA SRI.K.ABDUL JAWAD** **RESPONDENT(S)/RESPONDENTS/COMPLAINANT::** **---------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. CIRCLE INSPECTOR OF POLICE, CHITTOOR POLICE STATION.** **BY PUBLIC PROSECUTOR SMT.M.G.LISHA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** **'C.R.'** ## **P.D. RAJAN, J** ## **-------------------Crl.R.P. No.514 of 2005 ---------------------------------Dated this the 23[rd] day of June, 2016** ## **O R D E R** If the witness have no previous knowledge of the accused whom they got earlier opportunity to identify before test identification parade whether that identification parade is reliable for a conviction? This revision petition is preferred by the 2[nd] accused against the judgment in Crl.A. No.383 of 2001 of Additional Sessions Judge, Fast Track II, Palakkad. He was charge sheeted in S.C. No.76 of 1997 by the Assistant Sessions Judge, Palakkad under Sections 395 and 397 IPC and the learned Assistant Sessions Judge convicted the accused under Section 395 IPC and sentenced to rigorous imprisonment for seven years and fine of Rs.10,000/(Rupees ten thousand only) in default of payment of fine, simple imprisonment for two years. He was acquitted for offence under Section 397 IPC. Against that he preferred a Criminal Appeal, where the learned Sessions Judge dismissed the appeal. Being aggrieved by that, he Cr.R.P.No.514 of 2005 2 preferred this revision petition. 2. The charge against the accused is that on 28.5.1992, at 1.00 a.m., accused 1 to 5 pelted stones and thereafter entered into House No.1/88 of one Sukumaran, Kunnamkattupathi Village and threatened with Kattappara, as a result, PW1 and PW2 sustained serious injuries and the accused forcibly took two sovereigns of gold thereby sustained a loss of Rs.7,500/- and they also took clothes, clock and iron box worth Rs.12,000/- and thereby committed offences punishable under Section 395 and 397 IPC. Chittur police registered a crime and after completing investigation, C.I, Chittur laid charge before Judicial First Class Magistrate, Chittur. Subsequently, the case of A2 was committed to Sessions Court, Palakkad, from there it is made over to Assistant Sessions Judge. The other accused were absconding and therefore their case was split up by the court. In pursuance of trial, prosecution examined PW1 to PW20 and marked Exts.P1 to P20 as documentary evidence. The material objects MO1 to MO10 were admitted in Cr.R.P.No.514 of 2005 3 evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning them. They did not adduce any defence evidence in the trial court. 3. The main contention advanced by the learned counsel appearing for the revision petitioner is that the accused were strangers to the witnesses and they identified them before court is unbelievable. If the witnesses had chance to see the accused prior to test identification parade, that itself vitiated the very nature of test identification parade. There is a delay of two months in conducting test identification parade. From the evidence of PW1, it is clear that he saw them at the time of arrest and when they were taken to jail. Therefore their identity is unreliable. Hence the revision petitioner is entitled to get the benefit of doubt. 4. Normally identification parades are held at the instance of the investigating officer for the purpose of enabling the witness to identify the persons who are involved in the offence or the properties which are the Cr.R.P.No.514 of 2005 4 subject matter of the offence. Such parades are conducted during investigation stage. They will provide investigating authority with materials to assure them to proceed with the investigation in the proper manner. Therefore, it is the primary responsibility of the investigating officer to conduct such test identification parade at the earliest opportunity. This is in order to give an earliest opportunity to identify the witness to recollect the chance of memory of identifying the accused otherwise, the identity of the witness will fade away by reason of lapse of time. Therefore, it is always mandatory that the identification parade should be conducted at the earliest opportunity. When there is any delay in holding identification parade, it is the primary responsibility of the accused to highlight that fact during cross examination either to the witness, who identified the accused or to the police officer who conducted investigation and also the Magistrate who conducted test identification parade. If a person is not familiar to the witness and the accused is identified by the witness Cr.R.P.No.514 of 2005 5 during test identification parade, their evidence is corroborating the prosecution case and such evidence is unimpeachable. Therefore, immediately after the arrest of the accused soon after the incident, the investigating officer has a duty to conduct test identification parade at the earliest. 5. In **Hari Nath v. State of U.P. [AIR 1988 Supreme Court 345]** the Apex Court held as follows: The conduct of an identification parade belongs to the realm and is part of the investigation. The evidence of test identification is admissible under S.9. But the value of the test identification, apart altogether from the other safeguards appropriate to a fair test of identification, depends on the promptitude in point of time with which the suspected persons are put up for test identification. If there is unexplained and unreasonable delay in putting up the accused persons for test identification, the delay by itself detracts from the credibility of the test. ” 6. In this back drop, I have verified the factual evidence available in this case to know in which way the Cr.R.P.No.514 of 2005 6 test identification parade was conducted and in what manner they identified the witnesses. The evidence of PW1 shows that the incident occurred in the year 1992 in his elder brother's house. On that night after food he went to sleep, after some time, he heard some sound and realised that somebody had attacked his brother. There was pelting of stones towards the house and one of the stone hit on his chest. Four persons were found near the window demanding money. His brother gave some money through the window, at that time they demanded the gold ornaments of his brother's wife and threatened to kill his brother and wife with MO1, his brother's wife gave one gold chain. In the meantime, one of the assailants locked them in a room and the others took gold ornaments from the Almirah. He also participated in the identification parade. But in cross examination, he deposed that he did not participate in the identification parade. 7. The evidence of PW2 shows that on 27.05.1992 between 10 and 11 p.m., the incident occurred. While he was sleeping in the house of PW1, he Cr.R.P.No.514 of 2005 7 heard the sound of Sukumaran, his brother in law. PW2 opened the door, at that time the accused pelted stones towards him. Immediately Sukumaran returned to his house and the accused pelted stones towards the house. They demanded ornaments and gold chain from him which was also given to them. Subsequently, five accused persons trespassed into the house and threatened him and locked in a room, at that time, he saw the accused. During cross examination, PW2 admitted that there was a delay of two months in conducting test identification parade. After the arrest of the accused persons, they were brought before court, at that time also he identified the accused. Subsequently, the accused were produced before Court, at that time also he saw them. Therefore, it is clear that immediately after the arrest, PW2 saw the accused, when they were produced before Court. Therefore, it is clear that before the test identification parade, PW2 had the occasion to see the accused. 8. PW3 also gave similar version given by PW1 and PW2. She deposed that she heard her husband's cry Cr.R.P.No.514 of 2005 8 from the courtyard and hearing this, she came out of the house, at that time one of the accused caught hold of her. There was pelting of stones. PW1 sustained injury due to pelting of stones. The accused persons came near the window and intimidated her and demanded gold ornaments. She could not identify the persons who trespassed inside the room. In cross examination, she admitted that the incident was during night and she could not identify the accused. 9. PW1 had an occasion to see the accused immediately after the arrest and after remanding him to jail. The test identification parade was conducted by PW14, Judicial First Class Magistrate, Chittur. His evidence shows that on 03.10.1992, he conducted test identification parade in this case, Ext.P10 is the memorandum and Ext.P11 is the proceedings. His evidence shows that witnesses 1 and 3 identified A2 and A3. There is no illegality or irregularity in the procedure adopted by the learned Magistrate. But PW17 deposed that he arrested A1 on 12.08.1992 near 5[th] mile, A2 on Cr.R.P.No.514 of 2005 9 12.08.1992 from Velanthavalam and A3 was arrested on 07.09.1992. Therefore, it is clear that the test identification parade was conducted after two months of the arrest. The incident occurred on 28.05.1992, which is five months before conducting test identification parade. Another question is whether the identification parade was held on 03.10.1992 alone is sufficient for a conviction in this case. Revision petitioner was identified by PW2 and PW3. The question is whether it would be safe to accept the identification after two months of the arrest or five months after the incident. 10. The admissibility of identification evidence and the delay in conducting identification has been explained by the Apex Court in **Rajesh Govind Jagesha v. State of Maharashtra [2000 Crl.L.J.380]** which reads as follows: “ In cases where a person is alleged to have committed the offence and is not previously known to the witnesses, it is obligatory on the part of the investigating agency to hold identification parade for the purpose of enabling the witnesses Cr.R.P.No.514 of 2005 10 to identify the person alleged to have committed the offence. The absence of test identification may not be fatal if the accused is known or sufficiently described in the complaint leaving no doubt in the mind of the Court regarding his involvement. Such a parade may not be necessary in a case where the accused person is arrested on the spot immediately after the occurrence. The evidence of identifying the accused person at the Trial for the first time, is from its very nature inherently of a weak character. This Court in Budhsen v. State of U.P. (1970) 2 SCC 128: (AIR 1970 SC 1321: 1970 Cri.L.J. 1149) held that the evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances the complainant or the witnesses came to pick out the accused person and the details of the part which such persons played in the crime in question with reasonable particularity. The test identification is considered as a safe rule of prudence for corroboration. Though the holding of the identification proceedings may not be substantive evidence, yet such proceedings are used for corroboration purposes in order to believe or not the involvement of the person brought before the Court for the commission of the crime. The holding of identification parade being a rule of Cr.R.P.No.514 of 2005 11 prudence is required to be followed strictly in accordance with the settled position of law and expeditiously. The delay, if any, has to be explained satisfactorily by the prosecution. 5. Looking into the attending circumstances and the totality of the evidence produced in the Court, we are of the opinion that as the test identification parade regarding accused no.2 was not conducted properly and suffered from unexplained delay, he is entitled to the benefit of doubt. ” ## 11. In an earlier decision in **Muthuswami v.** **State of Madras [AIR 1954 S.C.5]** the Apex Court held as follows: Next come the identification parade held on the 1[st] and the 4[th] of November. The appellant was identified by each of the three eye witnesses who have been called. We consider it would be unsafe to accept this identification two and a half months after the event. It is true the murder was committed in the middle of the day but it is equally true that the three witnesses saw the assailants for a very brief interval of time even if the story about them walking by in single file ten minutes after the occurrence is true. It would be a remarkable feat for even one witness to do this Cr.R.P.No.514 of 2005 12 but we find it impossible to believe that no less than three were able to do so. The fact that they did pick out the appellant and his co-accused at the parade is of course beyond dispute but it seems evident to us that the suspect must have been pointed out to them before and that of course destroys the value of the investigation; and once we get that far suspicion is at once cast on the genuineness of the confession.” 12. In **Hasib v. State of Bihar [AIR 1972 Supreme Court 283 ]** the Apex Court held as follows: Now, identification parades are ordinarily held at the instance of the investigating officer for the purpose of enabling the witnesses to identify either the properties which are the subject matter of alleged offence of the persons who are alleged to have been concerned in the offence. Such tests or parades belong to the investigation stage and they serve to provide the investigating authority with material to assure themselves if the investigation is proceeding on right lines. It is accordingly desirable that such test parades are held at the earliest possible opportunity. Early opportunity to identify also tends to minimize the chances of the memory of the identifying witnesses fading away by reason of long lapse of time. But much more vital factor in determining Cr.R.P.No.514 of 2005 13 the value of such identification parades is the effectiveness of the precautions taken by those responsible for holding them against the identifying witnesses having an opportunity of seeing the persons to be identified by them before they are paraded with other persons and also against the identifying witnesses being provided by the investigating authority with other unfair aid or assistance so as to facilitate the identification of the accused concerned.” When the witnesses have no previous acquaintance with the accused and they were not previously known to the witness it is obligatory in the part of the investigating officer to hold identification parade for the purpose of identifying the accused who have committed the offence. it is not mandatory to conduct test identification parade when accused is not known to the witness. If witnesses got earlier opportunity to identify the accused at the time of arrest or at the time when the accused were produced before the court (subsequent to test identification of the accused) such test identification parade is not reliable. The evidence of the witnesses to identify the accused during trial is inherently a week peace of evidence. Nothing has been recovered from the possession of the accused after the arrest of the Cr.R.P.No.514 of 2005 14 accused in this case. Analysing the totality of the incident and the circumstances, I am of the opinion that the identification of PW1 and PW2 itself is not sufficient to convict the accused under Sec.395 IPC and of the opinion that identifying witnesses having got sufficient opportunity to see the person earlier and they can easily identified the accused during identification parade also. The conduct of the investigating officer with the identification is not fair relied the court to fix criminal liability in this case. Therefore, the test identification parade has to be held earlier opportunity so as to minimize memory of the witness to identity the accused person. The incident was occurred in this case on 28.05.1992 and the test identification parade was conducted on 03.10.1992. Therefore, such identity is not sufficient. In the result, conviction and sentences passed by the learned under Sec.395 IPC is set aside. The accused are acquitted and set at liberty. 13. It is not mandatory to conduct test identification parade when accused is not known to the witnesses. When witnesses have no previous acquaintance with the accused and they were not Cr.R.P.No.514 of 2005 15 previously known to each other, it is obligatory on the part of the investigating officer to hold identification parade for the purpose of identifying the accused who have committed the offence. If accused are strangers and the witnesses got earlier opportunity to identify the accused either at the time of arrest or at the time when they were produced before court before test identification parade, such test identification parade is not reliable. The evidence of the witnesses who identified the accused first time during trial is also inherently a weak piece of evidence. Nothing has been recovered from the possession of the accused after the arrest of the accused in this case. Analysing the totality of the incident and the circumstances, I am of the opinion that the identifying witnesses have got sufficient opportunity to see the accused persons earlier and they could have easily identified the accused during identification parade. Therefore, the identification of PW1 and PW2 alone is not sufficient to convict the accused under Sec.395 IPC without any corroborative evidence. Cr.R.P.No.514 of 2005 16 14. However, in view of the above discussion, the conviction and sentence passed by the learned Assistant Sessions Judge under Sec.395 IPC are set aside. The accused is acquitted and set at liberty. This Criminal Revision Petition is allowed accordingly. Sd/- **P.D. RAJAN, JUDGE** NS/24/06/2016 / True Copy / P.A. To Judge