Faizal s/o Ahammedkutty and Muthu @ Muneer v. State of Kerala through Circle Inspector of Police, Nilambur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **MONDAY, THE 10TH DAY OF FEBRUARY 2020 / 21ST MAGHA, 1941** ## **CRL.A.No.1189 OF 2006** **AGAINST THE JUDGMENT IN SC 287/2004 DATED 17-06-2006 OF ADDITIONAL SESSIONS JUDGE (AD HOC-1), MANJERI C.P.NO.37/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS,NILAMBUR** ## **APPELLANTS/ACCUSED 1 AND 2:** **1 FAIZAL S/O.AHAMMEDKUTTY, KOTTAMMAL HOUSE, POOKKOTTUMPADAM AMSOM, AMARAMBALAM, THOTTAKKARA. 2 MUTHU @ MUNEER, S/O.AHAMMEDKUTTY PONTHANGODAN HOUSE, AMARAMBALAM DESOM, POOKKOTTUMPADAM DESOM, THOTTAKKARA POOLAKUTH.** **BY ADV. SRI.SUNNY MATHEW** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA THROUGH THE CIRCLE INSPECTOR OF POLICE, NILAMBUR, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV.SRI. T.R. RENJITH, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 0502-2020, THE COURT ON 10-02-2020 DELIVERED THE FOLLOWING:** ## **Crl.A.No.1189 of 2006** **:-2-:** **T.V.ANILKUMAR, J.** **------------------------------------Crl.A.No.1189 of 2006 ----------------------------------------Dated this the 10th day of February, 2020** ## **J U D G M E N T** Accused 1 and 2 in S.C.No.287/2004 before the Additional Sessions Judge (Ad hoc-1), Manjeri, have filed this appeal challenging their conviction and sentence for the offences punishable under Sections 324 and 341 read with Section 34 of IPC. Each of them was sentenced to undergo rigorous imprisonment for two years and pay fine of Rs.5,000/- with default sentence of another rigorous imprisonment for four months for offence under Section 324. Simple imprisonment for one month was awarded to each of them for the offence punishable under Section 341 with a direction to serve the sentences concurrently. ## **Crl.A.No.1189 of 2006** ## **:-3-:** 2. The case against the appellants was charge sheeted by PW7 S.I. of Police, Nilambur on the allegation that in furtherance of common intention, they voluntarily caused hurt to PWs.1, 4 and CW2 with a dangerous knife on 31.12.2003 at 9 p.m. in Pookkottu Padam Chulliyodu public road about 100 mtrs. away from Anand Cinema Theatre after wrongfully restraining them while they were coming in a motorbike, demanding contribution for new year celebration. The appellants were alleged to have attempted to commit culpable homicide not amounting a murder also, besides their having put the victims to criminal intimidation. Accordingly, the appellants were charge sheeted for the offences punishable under Sections 341, 324, 308 and 506(ii) read with Section 34 of IPC. 3. When the case came up before Additional Sessions Judge (Ad hoc-1), Manjeri also, the ## **Crl.A.No.1189 of 2006** ## **:-4-:** appellants were charged with same offences and tried. 4. The prosecution examined on its side PWs.1 to 7 and admitted in evidence Exts.P1 to P12 and MO1 knife. Appellants did not adduce defence evidence even though they were called upon to enter on evidence. They developed a defence version while being questioned under Section 313 of Cr.P.C. that the place of occurrence was a nearby toddy shop where the victims might have sustained injuries in their scuffle with some other persons. The appellants denied their presence at the place of occurrence and also involvement in the crime. 5. The court below after considering the entire evidence, found that charges under Sections 341 and 324 read with Section 34 of IPC alone were proved by prosecution and absolved the appellants of the remaining charges under Sections 308 and ## **Crl.A.No.1189 of 2006** ## **:-5-:** 506(ii) of IPC. 6. PW1 is a merchant conducting a shop near his house. The prosecution case is that after closing his shop, on 31.12.2003 at 9 a.m., he came along with his friend, CW2 in a motorbike through place of occurrence to see second show film in Anand theatre. Both were signalled to stop at the place of occurrence by the appellants and when the bike stopped, the appellants demanded contribution for new year celebration which the riders resisted. When appellants tried to pick money from the pocket of PW1, it was resisted. Thereupon, the 2[nd] appellant took MO1 knife from his loins and stabbed PW1 on his left cheek, shoulder and forearm and other places causing injuries. The 1[st] appellant during this time prevented CW2 from moving from the pillion seat. He too attacked CW2 with the same knife on his forehead, right forearm, left chest etc. causing injuries. When local people ## **Crl.A.No.1189 of 2006** ## **:-6-:** came around and PW4, one of the passers by intervened, the 1[st] accused caused hurt to the fingers of his right arm with the same weapon and thereafter appellants escaped from the place after abandoning MO1 knife at the spot. 7. The injured were taken to Nilambur Taluk Hospital and after first-aid, they were brought before Al Shifa Hospital, Perinthalmanna at 1.30 a.m. on 1.1.2004. PW5, the Chief Medical Officer examined all the three injured and after recording the information that injuries sustained were on account of assault, he prepared Exts.P4 to P6 wound certificates. PW1 was admitted in the hospital and treated till 14.1.2001, while others were discharged on the very next day. After taking necessary rest and finding that police did not proceed in the matter upon the information given from the hospital, launched Ext.P1 private ## **Crl.A.No.1189 of 2006** ## **:-7-:** complaint before JFCM, Nilambur against the appellants on 5.2.2004. The complaint was forwarded to the Sub Inspector of Police, Nilambur, where PW6 registered Ext.P7 FIR. PW6, the Sub Inspector conducted preliminary investigation and prepared scene mahazar and caused site plan to be prepared through PW2, Village Officer and questioned witnesses also. During the course of investigation, one Habeeb Rahman who claims to have collected MO1 knife thrown away at the place of occurrence, produced it before PW6 and the same was recovered by the Officer under Ext.P10 seizure mahazar. After completion of investigation, PW7, the successor Sub Inspector submitted final report. 8. CW2, the pillion rider cum the injured, was not examined by the court below. The bike rider PW1 and PW4 who came to their rescue, alone were examined on the side of prosecution to prove the ## **Crl.A.No.1189 of 2006** ## **:-8-:** occurrence. No independent witness was examined before the trial court to prove the occurrence. The court below after going through the testimonies of the injured witnesses and the wound certificates prepared by PW5 held that the three victims sustained injuries in an assault on them with MO1 at the place of occurrence. The defence contention that there was inordinate delay of 36 days was repelled on the ground that it was sufficiently explained by PW1. With respect to the contention assailing prosecution evidence as to identity of the appellants also, the trial court rejected the defence case. The court below held that the appellants were identified in court by PWs.1 and 4 and identification within a period of two years since the date of incident, was satisfactory enough to prove the prosecution case that the appellants voluntarily caused hurt after wrongfully **Crl.A.No.1189 of 2006** ## **:-9-:** restraining the witnesses. 9. These findings are assailed by the learned counsel for the appellants in this appeal. It was argued that the delay involved in registration of the crime was not satisfactorily explained and it gave the witnesses time to fabricate false case against the appellants. As regards evidence regarding identification, it was contended that mere identification in court was not legal and sufficient in the facts of the present case, in the absence of the evidence of witnesses being corroborated by previous identification. **==> picture [402 x 12] intentionally omitted <==** Prosecutor sought to sustain the conviction and sentence and submitted that the evidence identifying the appellants in court was convincing and cannot be rejected as doubtful or unreliable. **==> picture [402 x 12] intentionally omitted <==** consideration in the appeal are whether the **Crl.A.No.1189 of 2006** ## **:-10-:** witnesses were attacked at the place of occurrence by means of MO1 knife inflicting injuries and if so, whether the appellants are the real assailants who committed the offences of wrongful restraint and causing hurt. 12. The finding of the court below that the three persons sustained injuries in an attack unleashed at the place of occurrence appears to be fully correct and supported by sufficient and satisfactory evidence. I do not find any grounds to differ from the view. PWs.1 and 4 submit that they were wrongfully restrained at the place of occurrence while they were proceeding in a bike for seeing second show film in Anand theatre which was hardly 100 mtrs away from the place of occurrence. CW2 was seated on the pillion seat. They said that when they reached the place of occurrence, they were wrongfully restrained by the appellants ## **Crl.A.No.1189 of 2006** ## **:-11-:** demanding them to contribute for new year celebrations. When the 1[st] appellant thrusted his hands into the pocket of PW1 to take money, he resisted. Being enraged, the 2[nd] appellant took MO1 from his loins and attacked PW1 on the left side of his cheek, shoulder, forearm etc. The 1[st] appellant prevented CW2 from moving away from the pillion seat and he too stabbed CW2 with knife on the left side of his chest, forehead etc. PW4 who came to their rescue from a nearby place also said that he sustained injuries on fingers of his right palm. These witnesses said that initially they were taken to Nilambur Taluk Hospital for first aid and later referred to Al Shifa Hospital at Perinthalmanna. Ext.P4 to P6 wound certificates proved through PW5, Chief Medical Officer show that the three persons sustained injuries. The injuries testified in court tally with those recorded in the wound certificates ## **Crl.A.No.1189 of 2006** **:-12-:** also. The information recorded by the Medical Officer in the wound certificates is that injuries arose out of an assault. The victims were treated at 1.30 a.m. on 1.1.2004 immediately after a few hours of the incident. The opinion given by PW5 is also that these injuries could be caused by means of a deadly weapon like MO1. I fully agree with the finding of the court below that the witnesses sustained injuries arising out of an assault with deadly weapon. 13. The crucial question considered by the court below and arising for re-consideration is whether the appellants were proved to be the assailants responsible for causing injuries on the witnesses. 14. The court below believed the evidence given by PWs.1 and 4 in court identifying the appellants as persons who wrongfully restrained and inflicted ## **Crl.A.No.1189 of 2006** ## **:-13-:** injuries on them. The court below noted that the identification in court within a period of two years after the incident, was not too long enough a period to efface the memory of witnesses as regards the identity of the assailants. The question therefore is whether this finding accepting the testimonies of PWs.1 and 4 as trustworthy and believable worths any interference. 15. PWs.1 and 4 admitted in the cross examination that they did not have previous acquaintance or familiarity with any of the appellants. It was dark also when they received attacks from the assailants. Identification in court under law is substantive evidence which could be acted upon by the court. But it should be understood that such identification in court could take the form of substantive evidence either when the witness identifying the accused had previous ## **Crl.A.No.1189 of 2006** ## **:-14-:** acquaintance with him or had enough grounds or opportunity to recognise his face and identity in the course of the attack. In cases where a witness claims to able to recall and memorise the identity of the assailants, his evidence should have been recorded within a reasonable period before his memory fades. Test identification parade is also not mandatory in all cases. In this respect, the learned counsel for the appellants cited the following decisions of the Honourable Supreme Court; **Dana Yadav alias Dahu and others v State of Bihar [(2002)7 Supreme Court Cases 295]** , **Mohd. Abdul Hafeez v State of Andhra Pradesh [(1983)1 Supreme Court Cases 143]** and **Kanan and others v State of Kerala [(1979)3 Supreme Court Cases 319]** . 16. In this case, it is hardly believable that the victims could have clearly identified the assailants at the place of occurrence. PW1 stated ## **Crl.A.No.1189 of 2006** **:-15-:** that after the incident they identified the appellants only for the first time in court and there was no opportunity for him to see them either in police station or elsewhere. According to him, he came to know about the appellants only from his father who collected information as to identity after necessary enquiries in the locality. Same thing was said by PW4 also. He said that he had joined the father of PW1 and with the help of local people, he took an autorickshaw in search for the assailants. This is a new case put forward during the cross examination. If PW4 could identify the appellants during search as he claimed, the father of PW4 should have been examined as a prosecution witness. It was not done and further Ext.P1 complaint filed by PW1 proceeded as if there was no uncertainty about the identity of the accused. In my view, the evidence of witnesses as regards ## **Crl.A.No.1189 of 2006** ## **:-16-:** identity is open to reasonable doubt. In this context, the delay of 36 days which intervened between the date of occurrence and institution of Ext.P1 private complaint assumes much importance. There is every reason to assume that the witnesses were trying hard to get at the unidentified assailants after the incident on 31.12.2003. 17. PW1 tried to put up an explanation that till 14.1.2004, he was in hospital. After discharge also, he was taking rest and therefore, was not in a position to move the police. This is too convincing to be believed. But even then, it escapes ones understanding as to why PW4 or CW2 who was discharged the next day did not move the police in time. It is a proved fact that Habeeb Rahiman who claims to have had MO1 from place of occurrence was keeping the knife all this time till he handed over it to the Investigating Officer. It cannot be ## **Crl.A.No.1189 of 2006** **==> picture [47 x 9] intentionally omitted <==** simply assumed that police might have been reluctant in proceeding with the case despite information regarding the occurrence was allegedly passed on by the hospital authorities. It appears that the witnesses must have had something to suppress by delaying information to police and further they were not sure about the identity of persons who allegedly attacked them. 18. It is also doubtful whether the witnesses had sufficient opportunities to recognise the assailants at the place of occurrence itself since it was dark at that time. Evidence does not show that there was street light or any other light at the place of occurrence. No electric post is shown in Ext.P3 mahazar. This material fact has come to the notice of the court below but it observed that there was chance for availability of light from nearby shops, houses etc. It is true that mahazar ## **Crl.A.No.1189 of 2006** ## **:-18-:** proves that there were such shops, houses and a few institutions, but there is no evidence from prosecution to the effect that the shops and institutions were functioning and lights were burning in the houses. I am of the view that on mere conjunctures and surmises, penal liability cannot be fastened on persons whose identity is not free from doubt. 19. In any view of the matter, the inordinate delay which stands unexplained, certainly leaves an adverse effect on the veracity of prosecution case. Since the view taken by the court below in regard to the evidence of identification does not accord with principles of law, the appellants are entitled to get at least the benefit of reasonable doubt and consequently, the impugned judgment of conviction and sentence require to be interfered with and reversed. I find that the appellants are not guilty ## **Crl.A.No.1189 of 2006** ## **:-19-:** of the offences punishable under Sections 341 and 324 read with Section 34 of IPC and are entitled to an order of acquittal. In the result, the appeal succeeds and the impugned judgment of conviction and sentence are set aside, acquitting the appellants of offences punishable under Sections 341 and 324 read with Section 34 of IPC. They are set at liberty forthwith and the bail bond executed by them stands cancelled. All pending interlocutory applications are closed. Sd/- **T.V.ANILKUMAR JUDGE** ami/