Renjith, Dinova and Sijo @ Sugreevan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **FRIDAY, THE 17[TH] DAY OF JUNE 2022 / 27TH JYAISHTA, 1944** **CRL.A NO. 1337 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 320/2006 OF III ADDITIONAL SESSIONS COURT (ADHOC), THRISSUR CP 79/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS** ## **-III,THRISSUR** ## **APPELLANTS/ACCUSED 3 TO 5:** 1 RENJITH, S/O KADAVI RAVI, KOORKANCHERY VILLAGE, ALUMVETTUVAZHI DESOM, THRISSUR. 2 DINOVA, S/O. PAYYAMPILLY ANTHREW KANNAMKULANGARA DESOM, CHIYYARAM VILLAGE,THRISSUR. 3 SIJO @ SUGREEVAN, S/O. THOMA THARAKAN, ANCHERY DESOM, OLLUR VILLAGE,THRISSUR. BY ADV M.B.PRAJITH ## **RESPONDENTS/ACCUSED:** STATE - REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY ADV SR PUBLIC PROSECUTOR SMT.T.V.NEEMA SRI DHEERENDRAKRISHNAN K K (AMICUS CURIAE), THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A.No.1337/2007 -:2:- ## **J U D G M E N T** Dated this the 17[th] day of June, 2022 This criminal appeal has been preferred challenging the judgment of conviction and sentence passed by the III Additional Sessions Court, Fast Track Court-I, Thrissur (for short, “the court below”) in S.C.No.320/2006 dated 10.07.2007. 2. The appellants are the accused Nos. 3 to 5. Altogether, there are five accused. The offences alleged are punishable under Sections 143, 147, 148, 452 and 307 read with Section 149 of IPC. The appellants herein alone faced trial at the court below. The accused Nos. 1 and 2 were absconding then. Now it is reported by the learned Sessions Judge that the case as against the accused No.1 was committed to the court and numbered as S.C.No.649.2007. The case was tried and the accused No.1 was convicted. The learned Sessions Judge further reported that the case against the accused No.2 was subsequently committed to the Sessions Court and now it is pending as S.C.No.629/2012. 3. The prosecution case in short is that the accused formed an unlawful assembly with common object to cause death Crl.A.No.1337/2007 ## -:3:- of PW4 and in prosecution of the common object, they assembled with deadly weapon, trespassed into the bakery of PW7 situated at Kuriachira on 17.07.2003 at 9.45 am and assaulted PW4 with sword at his arms and legs, with an intention to kill him and thereby committed the offences. 4. On the side of the prosecution, PW1 to PW10 were examined and Exts. P1 to P8 were marked. On the side of the defence, no one was examined and Exts.D1 to D3 were marked. MO1 sword was identified. The learned Magistrate after completing the statutory formalities committed the case as against the accused Nos. 3 to 5 to stand trial at the Court of Sessions. After hearing both sides, charge was framed for the offence punishable under Sections 143, 147, 452 and 307 read with 149 of IPC against them. The charge was read over and explained to them to which they pleaded not guilty. On appreciation of the evidence, the court below found the accused guilty under Sections 143, 147, 452. 307 read with Sections 149 and the accused Nos.3 and 4 were also found guilty u/s 148 of IPC and they were convicted for the said offences. The court below sentenced the accused Nos.3 to 5 to undergo rigorous Crl.A.No.1337/2007 ## -:4:- imprisonment for three months each and to pay a fine of ₹1,000/-, in default to suffer simple imprisonment for 15 days each under Section 143 of IPC, to undergo rigorous imprisonment for six months each and to pay a fine of ₹1,500/each, in default to suffer simple imprisonment for one month each under Section 147 of IPC, to undergo rigorous imprisonment for three years each and to pay a fine of ₹3,000/each, in default to suffer simple imprisonment for three months each under Section 452 of IPC, rigorous imprisonment for seven years and to pay a fine of ₹10,000/- each, in default to suffer simple imprisonment for four months each under Section 307 read with Section 149 of IPC and rigorous imprisonment for one year each and to pay a fine of ₹2,000/- each, in default to suffer simple imprisonment for two months each under Section 148 of IPC. Aggrieved by the said judgment of conviction and sentence, the accused Nos. 3 to 5 have preferred this appeal. 5. The appellants were initially represented by a lawyer. However, later, the counsel did not appear. Hence this Court appointed Sri. Dheerendrakrishnan as Amicus Curiae to assist this Court. I place on record the able assistance rendered by the Crl.A.No.1337/2007 ## -:5:- Amicus Curiae Sri. Dheerendrakrishanan. 6. Heard the learned Amicus Curiae as well as Smt. T.V. Neema, the learned Senior Public Prosecutor. 7. PW4 is the victim. PW5 and PW7 are occurrence witnesses. PW7 has given Ext.P4 FIS. However, in the box he specifically deposed that he could not identify the accused. Hence, his evidence is not much helpful to support the prosecution. What remains is the evidence of PW4 and PW5. PW4, the victim clearly gave evidence in tune with the prosecution case. He deposed the manner in which each of the accused attacked him. He specifically deposed the overt act done by each and every accused. However, he did not identify the accused at the dock. PW5, the occurrence witness also deposed about the overt act committed by each and every accused. However, he has also not identified the accused at the dock. 8. The learned counsel for the appellants Sri. Dheerendrakrishnan, vehemently argued that since there is no identification of the appellants by the victim and the ocular witnesses, the conviction against them is not sustainable. In Crl.A.No.1337/2007 ## -:6:- support of his submission, the learned counsel relied on three decisions of this Court: _**Vayalali Girishan and Others v. State of Kerala**_ (2016 KHC 204) , _**Manu G. Rajan and Another v. State of Kerala**_ (2021 (5) KHC 767) and _**Thadiyantevida Nazeer @ Ummer Haji & Others v. State of Kerala & Others**_ (2022 KHC 72). 9. On the other hand, the learned Public Prosecutor argued that even in the absence of specific dock identification, the close scrutiny of the evidences of PW4 and PW5 would prove the identity of the accused. The Prosecutor further submitted that the dictum laid down in the above three decisions cannot be applied to the facts of this case. 10. No doubt, the identification of the accused at the court is a substantive piece of evidence. True, it has come out in evidence that the accused were known to the victim prior to the incident. However, it is pertinent to note that in Ext.P4 FIS, the case of the victim is that he was attacked by three persons. Names of those three persons were not mentioned. In _**Vayalali Girishan**_ (supra), the Division Bench of this Court has held that while recording deposition, the trial judge has to specifically Crl.A.No.1337/2007 ## -:7:- record that the accused standing in the dock is identified by the witness and if there is failure thereof, the accused is entitled to the benefit of doubt. It was further held that the identification of the accused in the court cannot be done in an omnibus and perfunctory manner. In _**Manu G. Rajan**_ (supra), the learned Single Judge of this Court has held that when there is failure to properly identify the accused in the dock, it is fatal to the case of the prosecution. It was further held that merely because all the accused persons were directly known by the witness, that by itself does not take away the requirement of proper identification in the dock. In _**Thadiyantevida Nazeer**_ (supra), the Division Bench of this Court observed that the court should be more vigilant in prompting the witness to make a proper dock identification. It is also observed that it is more incumbent on the prosecution to ensure that a credible identification is made, which has the duty of establishing the guilt of the accused beyond any reasonable doubt. 11. I must say that neither the court nor the prosecution was successful in getting the appellants identified by PW4 and PW5. PW4 and PW5 were examined on 8.11.2006. The Crl.A.No.1337/2007 ## -:8:- proceedings paper would show that the accused No.4 alone was produced at the court on that day. The accused Nos. 3 and 5 were absent. They filed an application to condone their absence and it was allowed. Thus, it is a fact that the court identification so far as the accused Nos. 3 and 5 could not be made since they were absent. It is also pertinent to note that the cross examination of PW4 was adjourned for want of presence of accused Nos. 3 and 5 to 22.12.2006. On that day also the accused Nos. 3 and 5 were absent. The appellants cannot be allowed to take advantage of their laches in appearing at the court and seek for an acquittal before this Court on the ground that there was no dock identification. The case against the accused No.2 is now pending before the court below as SC.No.629/2012. 12. For the reasons stated above, I am of the view that, in the absence of proper identification of the appellants, the conviction and sentence passed by the court below cannot be sustained. However, considering the circumstances mentioned above, it is just and proper to give one more opportunity to the prosecution to prove the identification. It is true that the Crl.A.No.1337/2007 -:9:- appellants have been facing the ordeal of the criminal case for the last 17 years. In normal circumstances, a remand ought not have been made. However, this Court is of the view that since the accused Nos. 3 and 5 were not present on the day when the victim was examined, for the purpose of identification, a remand is necessary to give an opportunity to the prosecution to prove the identification. 13. In view of my findings above, the impugned conviction and sentence are set aside. The case is remanded back to the court below for fresh disposal in the light of the observations made in this judgment. Needless to say, the court below shall also give an opportunity to the defence to adduce defence evidence, if any. Crl.Appeal is disposed of as above. ## **Sd/-** **DR. KAUSER EDAPPAGATH JUDGE** ## **kp**