Girishkumar @ Girishan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 30TH DAY OF NOVEMBER 2020 / 9TH AGRAHAYANA, 1942** ## **CRL.A.No.1456 OF 2005** **AGAINST THE ORDER/JUDGMENT IN SC 416/2002 DATED 23-08-2005 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOZHIKODE** ## **APPELLANT:** **GIRISHKUMAR @ GIRISHAN, S/O. BALAKRISHNAN, GIRISH SADANAM, VALAYAM AMSOM DESOM, KOZHIKODE DISTRICT.** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.KRISHNADAS P. NAIR SMT.K.L.SREEKALA SRI.HARIDAS P.NAIR SRI.M.A.VINOD SRI.M.RAJESH KUMAR SMT.POOJA PANKAJ** ## **RESPONDENT:** **STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-11-2020, THE COURT ON 30-11-2020 DELIVERED THE FOLLOWING:** Crl.A. No. 1456 of 2005 2 ## **P.V.KUNHIKRISHNAN, J. =================== Crl.A. No. 1456 of 2005 =================== Dated this the 30[th] day of November, 2020** ## **J U D G M E N T** Appellant is the 1[st] accused in the S.C. No. 230/2004, on the file of the Additional District and Sessions Judge, Fast Track (ADHOC)-II, Kozhikode. The above case is charge sheeted against the appellant and 8 others alleging the offences punishable under Sections 143, 147, 148, 341 and 307 read with 149 of the IPC. The offence under Sections 3 and 5 of the Explosive Substances Act is also alleged. 2. The prosecution case in brief is that, on 28-31997 at about 8.20.p.m., all the accused along with 30 other identified persons with common object to cause death of PW9, who is the CPIM Secretary, Vannarkandy Branch, formed themselves into an unlawful assembly Crl.A. No. 1456 of 2005 3 armed with deadly weapons like chopper, country made bomb etc. knowing that they are members of such unlawful assembly stopped the bus bearing No. KL-11-F555 near the Valayam talkies in which PW9 was travelling as a passenger. First accused and others entered into the bus as if they are the passengers. A1 cut with a chopper on PW9, who was seated near the front door with intention to kill him. It is the further case of the prosecution that, the other accused who were waiting outside the bus uttered the words “to kill any CPIM person if any inside the bus” and hurled the country bomb on the backside body of the bus as a result of which the bus owner has sustained a loss of Rs. 5,000/- (Rupees Five Thousand only). Hence it is alleged that the accused committed the offences. 3. To substantiate the case, the prosecution examined PW1 to PW15. Exhibits P1 to P15 are the exhibits marked on the side of the prosecution. Exhibits D1 to D3 are the exhibits marked on the side of defense. MO1 to MO3 are the material objects. One witness was Crl.A. No. 1456 of 2005 4 examined on the side of the defence as DW1. 4. After going through the evidence and documents, the trial court found that, the 1[st] accused committed the offence under Section 307 IPC. The other accused were acquitted for the offences alleged. The 1[st] accused was convicted only under Section 307 IPC and he was sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.10,000/-. In default of payment of fine, he is directed to undergo simple imprisonment for a period of six months. Aggrieved by the conviction and sentence, this Criminal Appeal is filed. 5. Heard the learned Senior counsel, Shri. P. Vijaya Bhanu appearing for the appellant as instructed and the learned Public Prosecutor. 6. The learned Senior counsel submitted that, there is only the evidence of PW8 and PW9. The learned counsel submitted that, it is the fundamental duty of the prosecution to prove the identity of the accused in Court. The prosecution has to prove that the witnesses identified Crl.A. No. 1456 of 2005 5 the accused from the dock as the culprit. The learned Senior counsel submitted that, a reading of the evidence of PW8 and PW9 will show that, the accused were not identified by the witnesses. The learned Senior counsel submitted that, altogether there are 9 accused. Simply because the witnesses deposed that the accused is there in the dock, that is not enough as per the division bench of the judgment of this Court in _**Vayalali Girishan vs. State of Kerala (2016 (9) KHC 204).**_ The learned Senior counsel submitted that, on that simple reason the appellant in this case is entitled the benefit of doubt. 7. The learned Public Prosecutor after going through the evidence of PW8 and PW9 submitted that, even though they were not identified the accused from the box, one of witness deposed that the person who attacked him is there in the box. The learned Public Prosecutor submitted that, that is enough as far as the identity of the accused is concerned, because the accused has not disputed the same before the trial court. 8. The points for consideration in this appeal is Crl.A. No. 1456 of 2005 6 whether the accused committed the offence under Section 307 IPC. 9. Altogether 15 witnesses were examined in this case. PW1 and PW2 are the doctors who examined PW9. PW3 is only a scene mahazar witness. PW4 is the AMVI through whom Ext. P4 is marked. PW5 is the village assistant through whom Ext. P5 is marked. PW6 is the head constable, who recorded the First Information Statement. PW7 is the head constable, who registered the FIR. PW8 is the de facto complainant, who gave the First Information Statement. PW9 is the injured in this case. PW10 is the conductor of the bus who turned hostile. PW11 is the witness to the recovery mahazar. PW12 is the witness in Ext.P9 seizure mahazar. PW13 to PW15 are the official witnesses. Among these witnesses, PW8 and PW9 are the witnesses relied by the prosecution to prove the occurrence. In the light of the submission made by the learned Senior Counsel, I perused the evidence of PW8 and PW9. PW8 in his evidence deposed about the identity of the accused in the following manner. Crl.A. No. 1456 of 2005 7 “പ്രതതികളളെ പരതിചയമുണണ.” ## PW9 in his evidence deposed like this; “എളന്നെ ളവെടതിയ ആള്‍ കകകോടതതിക്കൂടതിലുണണ. രണണ്ടും മൂനണ്ടും പ്രതതികളളെ അറതിയകോണ്ടും. മറ്റു പ്രതതികളളെ ഞകോന്‍ കണതിടതില.” 10. Whether this evidence is enough to convict the appellant is the question. It is a settled position that, the witnesses should identify the accused from the dock at the time of trial and then only Court can convict the accused. 11. 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 in the box, it is fatal to the prosecution. If there is no proper identification of the 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 Crl.A. No. 1456 of 2005 8 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 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 Crl.A. No. 1456 of 2005 9 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 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 Crl.A. No. 1456 of 2005 10 the above judgments, this court 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 V. Sub Inspector of Police (2020 (3) KHC 715)**_ this 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 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 Crl.A. No. 1456 of 2005 11 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 9 accused in this case. 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. Admittedly, the accused/appellant is not identified by the witnesses from the dock as per the principles laid down by this Court in the several judgments. Therefore, the appellant is entitled the benefit of doubt. Hence this Crl.Appeal is allowed. Conviction and sentence imposed on the accused as per judgment dated 23.08.2005 in S.C. Nos.416/2002 and 230/2004 on the Crl.A. No. 1456 of 2005 12 file of the Additional District and Sessions Judge, Fast Track (ADHOC)-II, Kozhikode is set aside. The accused are set at liberty and the bail bond if any, executed by them are cancelled. ## **(Sd/-)** **P.V.KUNHIKRISHNAN, JUDGE** LU