Shihab Pathuvalparamb Veedu Eramam Kara et al. v. State of Kerala (Criminal Appeal No.1249 of 2005)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 27TH DAY OF OCTOBER 2020 / 5TH KARTHIKA, 1942** ## **CRL.A.No.1249 OF 2005** **AGAINST THE ORDER/JUDGMENT IN SC 441/2002 DATED 21-07-2005 OF PRINCIPAL SUB COURT,NORTH PARAVUR** **AGAINST THE ORDER/JUDGMENT IN CP 81/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, NORTH PARAVUR** ## **APPELLANT/PETITIONERS/ACCUSED NOS.1 TO 15:** |**1**|**SHIHAB**| |---|---| ||**PATHUVALPARAMB VEEDU, ERAMAM KARA,, KADUNGALLUR**| ||**VILLAGE.**| |**2**|**ANVAR SO.ABDUL KARIM**| ||**NAJIMAL ISLAN VEED,, KADUNGALLUR KARA, KADUNGALLUR**| ||**VILLAGE.**| |**3**|**SALAM SO.ABDULLA**| ||**KELANPARAMBIL VEED(THACHETH), ERAMAM KARA,,**| ||**KADUNGALLUR VILLAGE.**| |**4**|**MAHIN SO.BAWA**| ||**PUTHUVALPARAMBIL VEEDU, ERAMAMKARA,, KADUNGALLUR**| ||**VILLAGE.**| |**5**|**NASSAR SO.ABDU**| ||**PUTHUVALPARAMBIL VEEDU,, ERAMAMKARA, KADUNGALLUR**| ||**VILLAGE.**| |**6**|**ABDUL SALAM SO.MUHAMMED**| ||**KATTUPARAMBIL VEEDU, MUPPATHADOM KARA,, KADUNGALLUR**| ||**VILLAGE.**| |**7**|**HUSSAIN SO.JAINY**| ||**PUTHUVALPARAMB VEEDU,, ERAMAM KARA, KADUNGALLUR**| ||**VILLAGE.**| |**8**|**SUBER VADAKKAN SUBER**| ||**S/O.MOHAMMED, AMINA MANZIL,, ERAMAMKARA, KADUNGALLUR**| ||**VILLAGE.**| |**9**|**SIDDIQE SO.KUNJUMUHAMMED**| ||**PUTHUVALPARAMB VEEDU,, ERAMAMKARA, KADUNGALLUR**| ||**VILLAGE.**| **CRL.A.No.1249 OF 2005** **2** - **10 MAHIN SO.SHAMSU PUTHUVALPARAMB VEEDU,, ERAMAMKARA, KADUNGALLUR VILLAGE.** - **11 SUDHIR SO.HAMEED PUTHUVALPARAMB VEEDU, ERAMAMKARA,, KADUNGALLUR VILLAGE.** - **12 ALIKUNJU SO.KUNJUMUHAMMED THEKKUMPARAMB, ERAMAMKARA,, KADUNGALLUR VILLAGE.** - **13 NAJEEB SO.KARIM PUTHUVALPARAMB VEEDU, ERAMAMKARA,, KADUNGALLUR VILLAGE.** - **14 NIZZAR SO.UMMER KATTIPARAMBIL VEEDU,, ERAMAMKARA, KADUNGALLUR VILLAGE.** - **15 ABDUL SALAM SO.MUHAMMED PATTAMANA VEEDU, ERAMAMKARA,, KADUAGALLUR VILLAGE.** ## **BY ADV. SRI.SUNNY MATHEW** ## **RESPONDENT/COMPLAINANT:** ## **STATE OF KERALA** **SUB INSPECTOR OF POLICE, BINANIPURAM POLICE,, REPRESENTED 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 12-102020, THE COURT ON 27-10-2020 DELIVERED THE FOLLOWING:** **CRL.A.No.1249 OF 2005** **3** ## **JUDGMENT** **Dated this the 27th day of October 2020** Appellants are accused in S.C. No.441/2002 on the file of the Principal Assistant Sessions Judge, North Paravur. The appellants are fifteen in number. They were chargesheeted by the Binanipuram Police alleging offences under Sections 143, 147, 148, 341, 323, 324, 326 & 308 IPC & Section 27 of the Arms Act r/w Section 149 of the IPC. 2. The incident in this case happened about 18 years back. According to prosecution, the accused formed into an unlawful assembly and in prosecution of the common object, they wrongfully restrained PW1 and PW2 from proceeding further and voluntarily caused hurt to them by beating with his hands and by means of deadly weapons. They also caused fracture to them with an intention to commit culpable homicide. The incident took place in front of the gate of Panchayat office, Kadungallur at Muppathadam Kara, at 8.15 p.m., on 1.4.2002. It is further alleged that the first **CRL.A.No.1249 OF 2005** **4** accused voluntarily caused hurt to PW1 by beating with iron pipe. It caused fracture on his left leg below the knee and also caused hurt on different parts of his body by beating with the same weapon. It is also alleged that the accused caused fracture on the right knee of PW2 and on the right side of his face by beating with the same weapon. The second accused caused cut injury on the right palm and left side of his body of PW1 and it is also alleged that accused caused cut injuries on PW2 on his left leg and right side of his body by means of sword. The third accused also caused cut injury on the left shoulder of PW2 and on his left palm by means of sword. The fourth accused also caused hurt to PW1 and PW2 on different parts of their body by beating with iron pipe. 3. To substantiate the case, PW1 to PW13. Exts.P1 to P9 are the exhibits marked on the side of the prosecution. Ext.D1 is the document marked on the side of defence. M.O.1 and M.O.2 are the material objects. 4. After going through the evidence, the trial court found that the accused committed the offences under Sections 143, 147, 148, 341, 323, 324, 326, 308 r/w Section 149 IPC. The accused are sentenced to undergo rigorous imprisonment for six months under Section 143 r/w Section 149 IPC and rigorous imprisonment for three **CRL.A.No.1249 OF 2005** **5** years under Section 148 r/w Section 149 of IPC. No separate punishment is awarded under Section 147 of IPC. The accused are also sentenced to undergo rigorous imprisonment for one month under Section 341 r/w Section 149 of IPC and rigorous imprisonment for seven years under Section 308 r/w Section 149 of IPC and rigorous imprisonment for 10 years under Section 326 r/w Section 149 of IPC with a fine of Rs.10,000/- each. In default of payment of fine, simple imprisonment for six months was also imposed. If fine is realised, there is a direction to pay compensation to PW1 and PW2. The accused are also sentenced to undergo rigorous imprisonment for three years under Section 324 r/w Section 149 of IPC and rigorous imprisonment for 1 year under Section 323 r/w Section 149 of IPC. The accused were acquitted under Section 27 of the Arms Act. Aggrieved by the conviction and sentence, this Crl.Appeal is filed. 5. Heard Adv.Sunny Mathew for the appellants and the Public Prosecutor. 6. The counsel for the appellant submitted that there are 15 accused in this case. According to the prosecution, these 15 accused were members of the unlawful assembly. The counsel submitted that different overt acts are attributed to all the accused. The counsel submitted that in such circumstances, the identification of the **CRL.A.No.1249 OF 2005** **6** accused is important. The counsel submitted that in this case, PW1 to PW3 who are the injured witnesses and the defacto complainant has not specifically identified these 15 accused from the dock. The counsel submitted that for that simple reason, the accused are entitled the benefit of doubt. The counsel submitted that there is no test of identification parade conducted in this case. The counsel submitted that there are two accused with the name Abdul Salam and there are two accused with the name Mahin. Without specifically identifying each and every accused, the prosecution cannot succeed in a case like this. The counsel also submitted that the overt acts attributed to each of the accused by PW1 to PW3 are contradictory. According to the counsel what is stated in the F.I.statement is not the statement given by the witness when he is examined as PW3. There is material contradiction in the evidence of PW1 when it is compared to the F.I.Statement. The counsel also submitted that the prosecution miserably failed to prove the offences alleged against the accused. 7. The Public Prosecutor submitted that the trial court considered all the oral and documentary evidence and came to the conclusion that they committed the offences. The Public Prosecutor submitted that there is oral evidence of PW1 to PW3 to prove the case. The Public Prosecutor submitted that there is nothing to disbelieve the **CRL.A.No.1249 OF 2005** **7** evidence of PW1 to PW3. 8. The point for consideration in this case are : (i). Whether the prosecution was able to prove the offences alleged against the appellants. (ii). Whether the prosecution witnesses identified the appellants from the court. 9. To substantiate the case, the prosecution examined PW1 to PW13. PW1 and PW2 are the injured witnesses in this case. PW3 is the first informant and the defacto complainant. He is also an eye witness. PW4 and PW6 turned hostile to the prosecution. PW7 partly supported the prosecution case. PW8 is the doctor who examined PW2. The wound certificate is Ext.P3. PW9 is a hostile witness. PW10 is a seizure mahassar witness. PW11 is the head-constable who registered the FIR. PW12 is the investigating officer. PW13 is the doctor who examined PW1 and the wound certificate is Ext.P9. 10. I perused the evidence of PW1 to PW3. It is true that PW1 to PW3 deposed the incident in detail. But none of these witnesses specifically identified the accused from the court. In this case there are 15 accused. Different overt acts are attributed to different accused. Some of the witnesses deposed before the court that there is individual overt act to each and every accused. But those accused **CRL.A.No.1249 OF 2005** **8** were not identified by the witnesses from the court. In such situation whether this court can convict the appellants is the question. This point is considered by this Court in **Mohammed v. State of Kerala (2002 KHC 969)** and **Vayalali Girishan and others Vs. State of Kerala (2016 KHC 204)** and **Rafeeque Vs. Sub Inspector of Police (2020 (3) KHC 715** ). 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 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** **CRL.A.No.1249 OF 2005** **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 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 the above judgments, this court **CRL.A.No.1249 OF 2005** **10** 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 **CRL.A.No.1249 OF 2005** **11** trial. That is fatal to the prosecution, especially when there are 15 accused in this case. It is also to 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. Hence this Crl.Appeal is allowed. Conviction and sentence imposed on the accused as per judgment dated 21.7.2005 in S.C. No.441/2005 on the file of the Principal Assistant Sessions Judge, N.Paravur is set aside. The accused are set at liberty and the bail bond if any, executed by them are cancelled. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** Al/-+