Crl.R.P. No. 1690 of 2003

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 1ST DAY OF JULY 2016/10TH ASHADHA, 1938** **Crl.Rev.Pet.No. 1690 of 2003 ( )** **---------------------------------** **AGAINST THE JUDGMENT IN Crl. APPEAL NO 315/1999 of ADDITIONAL SESSIONS COURT (SPL. COURT), KOTTAYAM DATED 05-04-2003** **AGAINST THE JUDGMENT IN CC 843/1993 of JUDICIAL FIRST CLASS MAGISTRATE COURT,CHANGANACHERRY DATED 30-11-1999** ## **REVISION PETITIONER(S)/APPELLANTS/ACCUSED 1 AND 2:** **-------------------------------------------------** **1. JAMES, S/O. K.T. JOSEPH @ MAMMACHEN, KULATHUMKAL HOUSE, EAST OF EDAMKUNNU CHURCH, MADAPPALLY.** **2. BINU CHACKO, S/O. CHACKO, PUTHENPARAMBIL HOUSE, MEENADOM, KOTTAYAM.** **BY ADV. SRI.RAJEEV V.KURUP** ## **RESPONDENT(S)/RESPONDENT/COMPLAINT:** - **---------------------------------** **THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. M.G. LISHA.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P.No.1690 of 2003 ---------------------------------------------Dated this the 1[st ] day of July, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment of conviction and sentence in Crl.Appeal No.315/1999 of Additional Sessions Judge (Spl), Kottayam. They were charge sheeted by the Judicial First Class Magistrate, Chanaganassery in C.C.No.843/1993 for having committed an offence punishable u/s.394 r/w.34 IPC. The learned Magistrate convicted A1 and A2 u/s.394 r/w.34 IPC and sentenced to rigorous imprisonment for two years and fine of 3,000/-, in default of payment of fine, simple₹ imprisonment for one year each. Against that they preferred the above Crl. Appeal where the learned Additional Crl.R.P.l No.1690/2003 2 Sessions Judge (Spl), Kottayam dismissed the appeal. Being aggrieved by that, they preferred this revision petition. 2. The charge is that on 24.9.1992 at 8.30 p.m., the accused 1 to 3 assaulted PW1 with an iron rod on his head near Harijan Colong in Madappally and thereafter, carried away 4,000/- and gold chain thereby committed the₹ offence of robbery. Changanassery Police registered a crime and after completing investigation, the Circle Inspector, Chanaganassery laid charge in the Judicial First Class Magistrate Court, Changanassery. In pursuance of trial, prosecution examined PW1 to PW22 and marked Exts.P1 to P16. Mo1 to MO11 were admitted in evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning them. They did not adduce any defence evidence. Crl.R.P.l No.1690/2003 3 3. The learned counsel appearing for the revision petitioner contended that there is no identity of the accused at the time of occurrence. In Ext.P1 statement, PW1 stated that some identifiable persons attacked him, but no steps were taken by the investigating officer to identify them and no test identification parade was conducted during investigation. The witnesses did not identify the accused first time in the Court and no recovery was effected from A2, which was stated by PW9, hence, they are entitled to get the benefit of doubt. 4. The learned Public Prosecutor submitted that there is no dispute with regard to the injury sustained to PW1. The recovery made by the investigating officer against A1 is connecting the piece of evidence to prove the prosecution story. Even though test identification parade was not conducted, it will not affect the credibility of the Crl.R.P.l No.1690/2003 4 ## prosecution case. 5. The main argument advanced by the learned counsel for the revision petitioner is with regard to the identity of the accused. Apex Court in **Rameshwar Singh** v. **State of Jammu and Kashmir** [AIR 1972 SC 102] held as ## follows: “Before dealing with the evidence relating to identification of the appellant it may be remembered that the substantive evidence of a witness is his evidence in court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after the former's arrest is of vital importance because it furnishes to the Investigating agency an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. From this point of view it is a mater of great importance both for the investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused and that all the necessary precautions and safeguards are effectively taken so that the investigation proceeds on correct lines for punishing the real culprit. It would, in addition, be fair to the witness concerned who was a stranger to the accused because in that event the chances of his memory fading are reduced and he is required to identify the alleged culprit at the earliest possible opportunity after the occurrence. It is thus and thus alone that justice and fairplay can be 5 Crl.R.P.l No.1690/2003 assured both to the accused and to the prosecution. The identification during police investigation, it may be recalled, is not substantive evidence in law and it can only be used for corroborating or contradicting evidence of the witness concerned as given in court. The identification proceedings, therefore, must be so conducted that evidence with regard to them when given at the trial, enables the court safely to form appropriate judicial opinion abut its evidentiary value for the purpose of corroborating or contradicting the statement in court of the identifying witness.” The above decision shows that in a case where witness is not familiar with the attacker, the identification should be made at the earliest opportunity. The identification parade has to be held at the instance of the investigating officer for the purpose of enabling the witness to identify either properties which are subject matter of the offence or the persons who are involved in the offence. Such test identification parade at the investigation stage would provide the investigating authorities an assurance that the investigation was proceeded in the right manner. Therefore, it is desirable that the test identification Crl.R.P.l No.1690/2003 6 parade has to be held at the earliest possible opportunity. 6. The evidence of PW1 shows that on 24.9.1992 at 8.30 p.m. he identified the accused in the moonlight, on that day he was proceeding through the road in a bicycle and reached at Harijan Colony, at that time one person came from behind, assaulted him with an iron rod, he fell down and sustained injuries on both legs. The accused snatched 4,000/- and A2 snatched his gold chain. In that₹ incident, PW1 gave Ext.P1 statement to the Police and he identified MO1 to MO7 during trial. During cross examination, this witness admitted that he knew about the identity of the accused through his brothers. He deposed that A3 was not involved in the crime, on the other hand A1 and A2 committed the offence. A perusal of the evidence of PW1, it is clear that the accused are strangers, no previous acquaintance with them and no test Crl.R.P.l No.1690/2003 7 identification parade was conducted by the investigationg officer to identify the accused persons immediately after the arrest of the accused. The doctor who treated PW1 was examined as PW20, his evidence shows that PW1 sustained lacerated injury over the upper part of the occipital region longitudinal 2'' long 1/3'' wide bone deep and Abaration over both knees and right foot lateral side. 7. The settled principle of law is that the substantive evidence of a witness is his evidence in Court, but when accused is not previously known to the witness concerned, then identification of the accused must be done by the witness soon after the arrest is of vital importance in a case. Now the question is if no identification parade was conducted immediately after the arrest of the accused, what is the impact of the identification made by PW1 before Court. In the moon light, it is impossible to Crl.R.P.l No.1690/2003 8 identify the persons since the accused attacked PW1 from behind while he was proceeding in his bicycle. If the victim did not know the accused earlier and his family members subsequently identified him, such identity is not a supporting evidence. Therefore, the principle of holding identification parade at the earliest opportunity is much more vital factor in determining the value of the identity of the accused. The effectiveness of the precautions taken by the investigating officer and the responsibility for identifying the accused with the help of witnesses will always support the case in such a situation. PW2 heard the cry of PW1, PW3 saw PW1 near the step with blood, but their evidence will not help the prosecution to prove the identity of the accused. The evidence of PW4, PW5 and PW6 shows that they were not eye witnesses to the incident and their evidence will in no way support to prove Crl.R.P.l No.1690/2003 9 the identity of the accused. The weapon was recovered from the house of PW7, who deposed that A1 and A2 are his neighbours. The iron rod was recovered by the investigating officer. PW10 admitted that the weapon was used for his daily work which was marked in the trial court as MO5. PW8 also identified MO5. PW10 supported Exts.P6 and P7 mahazar. PW11 supported the preparation of Ext.P8 mahazar. PW13 supported Ext.P9, recovery mahazar. PW18 deposed about Ext.P12 mahazar. 8. The stolen articles were recovered on the basis of information given by A1. PW9 deposed that he purchased MO6 from A1 and after one week, police came in his shop with A1 and recovered it. This is only the connecting link to prove the presence of A1 at the place of occurrence. The crime was registered by PW25, the Circle Inspector, Changanassery on the basis of statement given Crl.R.P.l No.1690/2003 10 by PW1 and Ext.P14 is the FIR in that crime. He also recovered the stolen articles from the place of concealment on the basis of information given by A1. The seizure mahazar was marked as Ext.P5 and disclosure portion was marked as Ext.P5 (a). When stolen articles were recovered on the basis of the information given by the accused, so much of the portion distinctly relating to discovery is an admissible evidence. This principle was stated in **K. Chinnaswamy Reddy v. State of Andhra Pradesh and another [AIR 1962 SC 1788],** in which it is held as follows **:** “Let us then turn to the question whether the statement of the appellant to the effect that "he had hidden them (the ornaments)" and "would point out the place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. The Sessions Judge in this connection relied on Pulukuri Kotayya v. King-Emperor, 74 Ind App 65: -(AIR 1947 PC 67) where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. In Crl.R.P.l No.1690/2003 11 that case the Judicial Committee considered S. 27 of the Indian Evidence Act, which is in these terms :- "Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved." This section is an exception to Sections 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. S. 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S. 27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information. . . .. ... . as relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact." It was further observed that- "Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered." This was exemplified further by the Judicial Committee by observing- "Information supplied by a person in custody that 'I will Crl.R.P.l No.1690/2003 12 produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." 5. If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. S. 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the Indian Evidence Act. The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words Crl.R.P.l No.1690/2003 13 "where he had hidden them" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S. 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside the finding of acquittal in revision though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence. 10. The gold chain was recovered on the basis of information given by the 1[st] accused which is a connecting link to of the 1[st] accused in prove the complicity committing the offence. The trial court and the appellate court convicted A1 and A2 under Section 394 r/w.34 IPC, Crl.R.P.l No.1690/2003 14 but anlaysing the evidence and the complicity of the accused in sharing the common intention, I am of the view that prosecution failed to produce any evidence against A2 and he is entitled to get the benefit of doubt. As no other criminal antecedents are reported against A1, I am of the opinion that the sentence imposed on him shall be modified. In the report of the District Probation Officer, no criminal antecedents are found, considering the character and conduct of the offender, I am of the view that he is entitled to get leniency in sentence. In the circumstance, the conviction against A1 u/s.394 IPC is confirmed and he is sentenced to imprisonment for one year and fine of Rs.10,000/- (Rupees ten thousand only) in default of payment of fine, rigorous imprisonment for six months. Revision petitioner A1 is directed to surrender in the trial court to undergo the modified sentence forthwith. The Crl.R.P.l No.1690/2003 15 conviction and sentence passed by the trial Court against A2 under Section 394 r/w.34 IPC is set aside. **P.D. RAJAN, JUDGE.** acd