Mohanan S/o Ayyappan v. State of Kerala

CRL.A.No.903 OF 2005 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 09TH DAY OF NOVEMBER 2020 / 18TH KARTHIKA, 1942** ## **CRL.A.No.903 OF 2005** **AGAINST THE JUDGMENT IN SC 102/2000 DATED 30-04-2005 OF ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT II (ADHOC COURT), THRISSUR** ## **APPELLANT/1ST ACCUSED:** **MOHANAN S/O.AYYAPPAN, ALATHUR, MANAPPADI HOUSE, CHITETAADA VILLAGE AND DESOM, TALAPPILLY TALUK.** **BY ADVS. SRI.C.A.CHACKO SMT.C.M.CHARISMA SMT.SONIYA.M SRI.N.A.SHAFEEK** ## **RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-112020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.No.903 OF 2005 2 ## **JUDGMENT** ## **Dated this the 9th day of November 2020** The appellant is the 1[st] accused in S.C.No.102/2000 on the file of the Additional Sessions Judge, Fast Track Court II, (Adhoc Court), Thrissur. The above case is chargesheeted against the appellant and another alleging the offences punishable under Sections 324, 326 and 307 r/w 34 IPC. 2. The prosecution case is that PW1 Syedmuhammed is the local committee member of CPM of Chitteada. His son Azeez, who is examined as PW4, is the Unit Secretary of D.Y.F.I. The 1[st] accused was also in the C.P.M. The 2[nd] accused was also in the same party. It is alleged that the 1[st] accused was expelled from C.P.M. About 20-30 workers left that party and joined C.P.I. Behind the expulsion, it is alleged that the accused suspected the hands of PW1. According to the prosecution, on 3.10.1997 at 7.30 pm., PW1 was standing in front of his house. His son was also there. At that time, the 1[st] accused came there with a stick cum sword. He came straight towards PW1 and attacked him. The 1[st] accused cut on his head with the sword. With the cut, he fell down and then he was again cut on his left shoulder and left CRL.A.No.903 OF 2005 3 arm above the elbow. Hearing the cry from the place, PW3 and PW2 came there. The accused cut on the head of Raman (PW3) with the same weapon and he caught it with both his hands. He received injuries. Another person who came there namely Rajan (PW2) was also attacked. He also sustained injury. Accordingly, it is alleged that the accused inflicted fatal injuries to PW1 to PW3 and hence committed the offence. 3. To substantiate the case, the prosecution examined PW1 to PW15. Exts.P1 to P19 are also marked on the side of the prosecution. Exts.D1 to D3 are the defence exhibits. MO1 to MO4 are the material objects. 4. On going through the evidence and the documents, the trial court came to the conclusion that the 1[st] accused committed the offences under Sections 324 and 307 IPC. The 2[nd] accused was found not guilty. The 1[st] accused was sentenced to undergo rigorous imprisonment for three years under Section 307 IPC and to pay a fine of Rs.25,000/-. In default of payment of fine, the 1[st] accused was directed to undergo rigorous imprisonment for one year. The fine, if realised was directed to be paid to PW1 under Section 357 Cr.P.C. The first accused was also sentenced to pay a fine of Rs.5,000/- under Section 324 IPC. In default of payment of fine, the 1[st] accused is directed to undergo simple imprisonment CRL.A.No.903 OF 2005 4 for three months. If this fine is realised, there is a direction to pay the same to PW2. Aggrieved by the conviction and sentence, this Criminal Appeal is filed. 5. Heard the learned counsel for the appellant and the learned Public Prosecutor. 6. The counsel for the appellant raised only a single point. According to the counsel PW1 to PW5, who are the witnesses relied by the prosecution, has not identified the accused from the dock. According to the counsel, since PW1 to PW5 were not able to identify the accused from the dock, their evidence cannot be used to convict the appellants in the light of the judgment of this Court in **Vayalali Girishan and others v. State of Kerala (2016 KHC 204).** The counsel submitted that the identification of the accused from the dock is important and without identifying the accused by the witnesses from the dock, an accused cannot be convicted. 7. The Public Prosecutor submitted that identity is not disputed in this case. In such circumstances, the appellant cannot raise his contention while arguing an appeal before the appellate court. The Public Prosecutor submitted that there is convincing evidence from the side of PW1 to PW5 and there is nothing to disbelieve their evidence. CRL.A.No.903 OF 2005 5 8. The point for consideration in this case is whether the appellant committed the offence under Sections 324 and 307 IPC. 9. Altogether 15 witnesses were examined in this case. PW1 to PW3 are the injured witnesses. PW4 and PW5 are the eye witnesses. PW6 is a scene mahazar witness. PW7 is examined to prove Ext.P3 seizure mahazar by which MO1 and MO2 are seized. PW8 is the witness in Ext.P4 by which MO3 is recovered. PW9 is the Village Officer through whom Ext.P5 sketch is marked. PW10 is the Assistant Sub Inspector, who registered Ext.P6 FIR. PW11 conducted preliminary investigation. PW12 and 13 are the other investigating officers. PW14 is the doctor who examined PW1 to PW3 from Taluk Hospital. PW15 is the doctor who examined PW1 from Medical College Hospital. This is the evidence available in this case. 10. The point raised by the counsel for the appellant is that PW1 to PW5 did not identify the accused from the dock at the time of trial. I perused the evidence of PW1 to PW5. PW1 in his chief examination stated about the identity of the accused like this. "അയ്യൻ മമമോഹനനന, C.N.മമമോഹനനന പ്രതതികളമോണണ. അവരരെ അറതിയന" 11. PW2 is the another injured witness. He stated in his deposition like this: CRL.A.No.903 OF 2005 6 "പ്രതതികരള അറതിയമോന" 12. PW3 is also another injured witness. What is stated by PW3 in the chief examination is extracted hereunder: "പ്രതതികരള അറതിയന" 13. PW4 and PW5 are the eye witnesses in this case. PW4 in his chief examination deposed like this: "പ്രതതികരള അറതിയന" 14. As far as PW5 is concerned he has not even stated that he knows the accused. He only narrated the incident. This is the evidence regarding the identification of the accused by these witnesses. Admittedly there are two accused before the trial court. The name of these two accused are 'Mohanan'. The specific overtacts are attributed to the 1[st] and 2[nd] accused. Of course the 2[nd] accused Mohanan is already acquitted by the trial court. In such situation what is the effect of not identifying the accused by the witnesses at the time of trial, is the question to be decided. This Court considered this point in detail in judgment dated 27.10.2020 in Crl.A No.1249/2005. The relevant portion is extracted hereunder; “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 CRL.A.No.903 OF 2005 7 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 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 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 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 CRL.A.No.903 OF 2005 8 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 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 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 CRL.A.No.903 OF 2005 9 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. “ 15. In this case also there are two accused whose name is Mohanan. There are specific overtacts attributed to 1[st] and 2[nd] accused by the prosecution witnesses. But these witnesses did not identify these accused from the dock at the time of trial. In the light of the above judgment of the Division Bench of this Court and the other judgments cited above, I think, the appellant in this case is entitled the benefit of doubt. Therefore, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant based on the judgment dated 30.4.2005 in S.C.No.102/2000 on the file of the Additional Sessions Judge, Fast Track Court II, (Adhoc Court), Thrissur is set aside. The appellant is set at liberty. The bail bond, if any, executed by the appellant is cancelled. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **JUDGE** **ab**