Muhammad and E.P. Moideen v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 5TH DAY OF FEBRUARY 2016/16TH MAGHA, 1937** **CRL.A.No. 1912 of 2004 (C)** **--------------------------AGAINST THE JUDGMENT IN SC 131/2002 of ADDL.SESSIONS COURT (ADHOC-II) KASARAGODE DATED 20-10-2004** **APPELLANT(S)/ACCUSED:** **---------------------** **1. MUHAMMAD, AGED 33 YEARS, S/O.ABOOBACKER, KAVUMBAGHAM, VADAKKUMBAD, THALASSERRY.** **2. E.P.MOIDEEN, S/O.PAKKER,** **57/01, AYIZHA MANZIL, KOLARI AMSOM, KALLUR DESOM, MATTANNUR.** **BY ADVS.SRI.K.S.BABU SMT.N.SUDHA SRI.A.STHOMAS SMITH A.S.** ## **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR SRI. N. SURESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.Appeal No.1912 of 2004 ---------------------------------------------Dated this the 5[th] day of February, 2016 ## **ORDER** The appellants were charge sheeted in S.C.No.131/2002 by the Additional Sessions Judge (Adhoc) II, Kasaragod for having committed an offence u/s.55(a) of the Abkari Act. The charge against them was that on 19.8.2000 at 6 p.m., the accused were found transporting 110 card board cases each containing 180ml of 48 bottles of Indian Made Foreign Liquor (for short IMFL) and 90 card board boxes each containing 375ml of 24 bottles of IMFL from Karnataka to Kerala by the Circle Inspector of Police, Neeleshwar. After completing investigation, S.I. of Police, Chandera Police laid charge before Judicial First Class Magistrate Court-I, Hosdurg, from there the case was committed to Sessions Court, Kasaragod. Subsequently, it was Crl.. Appeal No.1912/2004 2 made over to Additional Sessions Court-II, Kasaragod. 2. In pursuance of the charge, prosecution examined PW1 to PW8 and marked Exts.P1 to P17. MO1 to MO7 were admitted as material objects. The incriminating circumstances brought out in evidence were denied by the accused, while questioning them. During cross examination, Ext.D1 was marked. The learned Additional Sessions Judge convicted the accused u/s.55(a) of the Abkari Act and sentenced to rigorous imprisonment for three years and fine of 1 lakh each, in₹ default of payment of fine, rigorous imprisonment for four months. Being aggrieved by that, the accused preferred this appeal. 3. During pendency of this appeal, the 2nd appellant died. Hence the Sub Inspector of Police, Chandera Police Station has produced Ext.C1 Death Certificate which was issued by the Secretary, Thondernad Grama Panchayat. As per Ext.C1 Certificate, the 2nd appellant died on 1.1.2009. Crl.. Appeal No.1912/2004 3 4. The main argument advanced by the learned counsel appearing for the appellant is that the accused were not arrested from the spot and they were not identified by the prosecution witnesses. The occurrence witnesses were not examined in the trial Court to prove the identity of the accused. The Police Officers, who detected the offence were not examined as witnesses. The independent witnesses PW1 and PW6 denied their signature in the seizure mahazar and the scene mahazar. 5. In reply to the above argument, the learned Public Prosecutor admitted that the accused were not arrested from the place of occurrence. 6. While exercising appellate jurisdiction, I examined whether the courts below did consider the evidence properly with regard to the identity. There is misreading of evidence and both courts have the impression that the identity of 4 Crl.. Appeal No.1912/2004 the accused is established in this case. A perusal of the document, it is clear that many factors which ought to have been considered in favour of the accused with regard to the identity were not properly analysed and considered. Apex Court in **Kannan and others v. State of Kerala [AIR 1979 SC 1127]** held that where the accused were unknown to the witness and there is no test identification parade, it is unsafe to rely the oral testimony of the witness who identifies the accused for the first time in court. It is pertinent to note that PW5 arrested A2 on the basis of the information received from the RTO, which is not a connecting link to prove the identity. The identification proceedings is that certain persons are identified by the witnesses and to that effect, they made some statements pointing the fact that such persons are involved in the crime. Therefore, the identification of the accused and their arrest is doubtful. 7. The occurrence was deposed by PW8 the Circle Crl.. Appeal No.1912/2004 5 Inspector of Police, Neeleshwar, who deposed that on 19.8.2000 he was doing special duty in connection with 'jeloltsav' at Kavunchira, at 5.30 p.m, he got information that a vehicle No.KL-10D 690 is proceeding through NH in a suspicious situation from Neeleshwar to Kannur. He reported the matter to the police officers conducting road duty at Cheruvathoor and at 6 p.m., they intercepted the vehicle immediately, two persons found in the mini lorry, got down there and left the place. At 9.00 p.m., PW8 inspected the vehicle and detected MO1 and MO2 series. He broke opened four bottles, each containing 375ml and opened 8 bottles, each containing 180 ml and took samples in two bottles each. All sample bottles were sealed at the place of occurrence. The copy of the licence and R.C. book were seized from the vehicle. For that, he prepared Ext.P16 seizure mahazar and entrusted the contraband articles to Chandera Police Station. They registered Crime No.135/2000 and Ext.P7 is the FIR. He Crl.. Appeal No.1912/2004 6 also identified MO3 to MO7. The documents seized from the vehicle were marked as Exts.P8 to P13. 8. The independent witnesses did not support the prosecution case and they were strangers to the fact of the case. PW1 is an independent witness who denied the signature in Ext.P16 seizure mahazar. He did not see the seizure of MO1 and MO2 from KL-10-D-690. On 17.10.2000, PW3 arrested the 2nd accused as per Ext.P2 arrest memo. He was produced before Court on 18.10.2000. One Venu accompanied PW3 for identifying the accused. PW6 did not see the seizure of MO1 and MO2 from KL-10-D-690 mini lorry and he never signed in the seizure mahazar. But, he admitted the signature in the summons. PW7 also denied the signature in the scene mahazar. Therefore, without any independent corroboration, the oral testimony of the police officials cannot be safely relied. No test identification parade was conducted in this case. During the course of investigation, with the primary object of 7 Crl.. Appeal No.1912/2004 enabling the witnesses to identify the person concerned in an offence, who were not previously known to them, the police officials would conduct a test identification parade. This will satisfy the investigating officers of the bonafides of the prosecution witness and also to furnish their evidence to corroborate their oral testimony before court. 9. The investigation in this case was conducted by PW8 who deposed that on 21.08.2000 at 2.00 p.m., he arrived at the place of occurrence and prepared Ext.P3 Scene Mahazar. The mini lorry was produced before the court as per Ext.P4. Subsequently, it was handed over to the Assistant Excise Commissioner, Kasaragod. Ext.P5 is the letter issued by the Assistant Excise Commissioner. He prepared Ext.P6 forwarding note for sending the contraband articles to the chemical examination lab. He identified the 1[st] accused as per the photo found in the Crl.. Appeal No.1912/2004 8 copy of the driving licence. On 20.10.2001, PW5 conducted investigation in this case. He arrested the 1[st] accused and produced before the court, as per Ext.P2(a). He also obtained Ext.P7 report from the RTO and identified the RC owner of the vehicle. The copy of the driving license of A1 was marked as Ext.P8. The copy of the RC book was marked as Ext.P9. The tax receipt of the vehicle was marked as Ext.P10. A copy of the permit was marked as Ext.P11. The receipt issued from the check post, Thalappady was marked as Ext.P12 and the temporary permit issued was marked as Ext.P13. The chemical analysis report was marked as Ext.P14. The Sub Inspector also filed Ext.P15 report. After completing the investigation, he laid charge before the court. 10. The Apex Court in **Budhsen** v. **State of U.P.** [AIR 1970 SC 1321] held that the evidence as to identification 9 Crl.. Appeal No.1912/2004 deserves therefore to be subject to a close and careful scrutiny by a court, if identification evidence is received. Identification evidence form an important part in the proof or disproof of the guilt of the accused. The prosecution has not produced any evidence to prove the identity of the persons involved in the alleged offence. PW1 to PW8 have no prior acquaintance with the accused. The purpose of prior acquaintance seems to be a test strengthening the trust worthiness of the evidence of the police officials. Therefore for getting corroboration of the testimony of the officials in court and the independent witness, the identification of the accused is relevant. Mere identification of the accused on the basis of driving licence found in the vehicle itself is not sufficient to fasten criminal liability upon a person. Moreover, the evidence of identification of the accused at the trial for the first time, is also inherently a weak evidence. In order to carry out the conviction, the evidence should ordinarily clarify Crl.. Appeal No.1912/2004 10 how and under what circumstance the police officials took out the accused persons and the details of the part played by the accused in the crime in question, for which PW1 to PW8 have no prior acquaintance with the accused. In the circumstance, the conviction under Sec.55(a) of the Abkari Act is set aside and the appellant is acquitted thereunder. The appeal is allowed accordingly. ## **P.D. RAJAN, JUDGE.** acd Crl.. Appeal No.1912/2004 11 Crl.. Appeal No.1912/2004 12