CRL.A.No.1359 OF 2005

## **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.1359 OF 2005** **AGAINST THE ORDER/JUDGMENT IN SC 164/2002 DATED 06-08-2005 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOZHIKODE** ## **APPELLANTS/ACCUSED (IN CUSTODY):** - **1 RAJAN S/O CHOYI, AGED 38, THETTATH HOUSE, THIRUVALLUR.** - **2 SAJEEVAN S/O.KELAPPAN, AGED 30 PONNARATHUMMAL HOUSE, THIRUVALLUR.** - **3 VINODAN @ DINOOP. S/O.DIVAKARAN AGED 28, THODUVAYIL HOUSE, PAINGOTTAI, KOTTAPPALLY.** - **4 SHAJI S/O.KELAPPAN, AGED 30 MANNATH HOUSE, THIRUVALLUR.** - **5 KUNHIRAMAN S/O.KANNAN, AGED 56 MALOPARAMBATH, THIRUVALLUR.** - **6 SANKARAN S/O.KUTTY, AGED 44 PONNAVATHUMMAL, THIRUVALLUR.** **BY ADVS. SRI.ZUBAIR PULIKKOOL SRI.K.M.RAMADAS** ## **RESPONDENT:** **STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** CRL.A.No.1359 OF 2005 2 ## **SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-112020, THE COURT ON 23-11-2020 DELIVERED THE FOLLOWING:** CRL.A.No.1359 OF 2005 3 ## **JUDGMENT** ## **Dated this the 23rd day of November 2020** The appellants are the accused in Sessions Case No. 164/2002 on the file of the Additional District and Sessions Judge Fast Track – Adhoc-II, Kozhikode **.** Above case is charge sheeted by the Dy.S.P., Crime Detachment, Kozhikode Rural, Vadakara against the appellants alleging offences punishable under Sections 143,147,148,448,506(i),323,380,436 r/w 149 of IPC. 2. The prosecution case is that on 13.09.2000, at about 6.45 p.m. accused nos. 1 to 6 formed themselves into an unlawful assembly armed with deadly weapons knowing that they are members of unlawful assembly and in furtherance of their common object they trespassed into shop No. 9/120 of Mubarak textiles in Thiruvallur Panchayath in which C.W.1 was doing textile business which is situated in Thiruvallur angadi. It is also alleged that, the accused intimidated C.W.1 and others and they were pushed out from the shop and took ## CRL.A.No.1359 OF 2005 4 away an amount of Rs. 4,000/- (Rupees Four Thousand only) from the drawer of the table. It is also alleged that textile items were also taken away. The further case of prosecution is that, they poured petrol and set fire to the shop and as a result of which C.W.1 sustained loss of Rs. 7,00,000/- (Rupees Seven Lakhs only). To substantiate the case prosecution examined PW.1 to PW.10. Exhibit P1 to P8 are marked on side of the prosecution . Exhibits D1 to D4 are the defence Exhibits. After going through the evidence and documents the trial found that the accused committed the offence under Sections 143,147,148,448,506(i),323,380,436 r/w Section 149 of IPC. Separate sentence was also imposed on the accused. Aggrieved by the conviction and sentence, this Crl. Appeal is filed. 3. Heard the learned Counsel for the appellant and the learned Public Prosecutor. 4. The learned Counsel for the appellant submitted that, the alleged incident happened on 13.09.2000 and the complaint was filed only after two days. The CRL.A.No.1359 OF 2005 5 learned Counsel for the appellant also submitted that the, appellants/accused were not even identified by the witnesses from the court. The learned counsel also submitted that, in the F.I. statement, there is no specific overt Act attributed to the accused. The learned Counsel for the appellant also submitted that, the evidence of PW.1 and PW.2 cannot be believed because their evidence is mutually contradictory and hence not believable. 5. The learned Public Prosecutor submitted that, there is oral evidence of P.W.1 and P.W.2 to prove the case. The learned Public Prosecutor submitted that, the evidence available in this case is more than enough to convict the accused. According to the prosecutor,the trial court perfectly justified in convicting and sentencing the accused. 6. The points for consideration in this case is whether the accused committed the offences under Sections 143,147,148,448,506(i)323,380,436 r/w 149 of IPC. 7. Altogether 10 witnesses were examined in this CRL.A.No.1359 OF 2005 6 case. P.W.1 and PW.2 are the eye witnesses in this case. PW.1 is doing textile business. 8. I perused the evidence of PW.1 and PW.2 in detail. The P.W.1 and P.W.2 had not identified the accused from the dock at the time of the trial. I directed the learned Public Prosecutor to verify the evidence of PW.1 and PW.2 once again. The learned Public Prosecutor also conceded that PW.1 and PW.2 had not identified the accused from the dock at the time of trial. But the learned Public Prosecutor submitted that, there is no challenge from the accused regarding the identity of the accused before the lower court and therefore, the accused cannot raise such a contention in an appeal against conviction. But this point is covered in several decisions of this Court. I considered this point in judgment dated 27.10.2020 in Crl. Appeal No. 1249/2005. The relevant paragraph in above judgment is extracted here; _“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_ CRL.A.No.1359 OF 2005 7 _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 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_ CRL.A.No.1359 OF 2005 8 _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 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 CRL.A.No.1249 OF 2005 10 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_ CRL.A.No.1359 OF 2005 9 _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 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. “_ ## 9. In the light of the above judgment, which is based on the decision of the division bench of this Court, I think the accused in this case is entitled to get the benefit of doubt. There is no identification of the accused by the witnesses from the Court. If that is the case, the accused is entitled to get the benefit of doubt. Hence, this criminal appeal is allowed, the conviction of sentence imposed on the appellants are set aside. The appellants are set at liberty . Bail CRL.A.No.1359 OF 2005 10 bond, if any, executed by the appellants are cancelled. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **JUDGE** **jms** **//True Copy// P.A to Judge.**