Sivarman s/o Moothorakutty v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **TUESDAY, THE 19TH DAY OF JANUARY 2016/29TH POUSHA, 1937** ## **CRL.A.No. 1674 of 2004 (C)** ## **---------------------------** **AGAINST THE ORDER/JUDGMENT IN SC 88/2003 of ADDITIONAL SESSIONS COURT (ADHOC)-II, KOZHIKODE DATED 06-10-2004** ## **APPELLANT/ACCUSED::** **----------------------------------** **SIVARAMAN, S/O. MOOTHORAKUTTY, PUTHIYOTTIL MEETHAL (H), KELUR AMSOM, CHELIYA DESOM.** **BY ADVS.SRI.P.S.SREEDHARAN PILLAI** **SRI.K.B.SAJEESH SRI.P.GOPINATH SRI.C.S.SUNIL SRI.P.R.SREEJITH** ## **RESPONDENT/COMPLAINANT::** **------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** ## **BY SRI SURESH, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **P.D.RAJAN, J. --------------------Crl. Appeal No.1674 of 2004 ---------------------------------------------Dated this the 19[th] day of January, 2016** ## **JUDGMENT** This appeal is preferred against the conviction and sentence in S.C.No.88/2003 of the Additional Sessions Court, Adhoc-II, Kozhikode under Section 55(a) of the Abkari Act. The charge against the appellant is that on 23.11.2000 at 12 O'Clock, the Preventive Officer and party of Quilandy Excise Range was conducting patrol duty. When they reached at Melur Amsom Cheliya Desom of Quilandy Taluk, appellant was found carrying 5 Ltr of arrack in a plastic can. On seeing the excise party, appellant ran away, therefore, they could not arrest him, but they seized the contraband articles after taking sample. Reaching at the Excise Office, they registered a crime and occurrence report. After completing investigation, Excise Inspector, Quilandy submitted final report before the Judicial First Class Magistrate, Quilandy. From there, the case was committed to Sessions Court, Kozhikode. **Crl.Appeal No.1674/2004** **2** 2. During trial, prosecution examined 5 witnesses and marked Exts.P1 to P7 and admitted MO-1 in evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. The learned Additional Sessions Judge convicted the appellant under Section 55(a) of the Abkari Act and sentenced to rigorous imprisonment for two years and a fine of Rupees one lakh, in default, simple imprisonment for six months. Being aggrieved by that, he preferred this appeal. 3. The learned counsel appearing for the appellant contended that there is no identity of the accused that he had committed an offence as alleged by the prosecution. The incident occurred on 23.11.2000 and the appellant was arrested on 21.03.2002 by a non-empowered officer. The place of occurrence was shifted as per the oral evidence of the Village Officer. The independent witnesses present there were not examined to prove the alleged seizure. Hence, the appellant is entitled to get the benefit of doubt. **Crl.Appeal No.1674/2004 3** 4. I heard the learned Public Prosecutor who admitted that the arrest was made after a long time and the independent witnesses present were not examined. 5. The occurrence was stated by PW-1 who is the detecting officer. The evidence of PW-1 shows that on 23.11.2000, he was conducting patrol duty within his jurisdiction. At 12 O'clock, he reached Melur Amsom and appellant was found carrying MO-1 with him. On seeing the excise party, he had thrown away MO-1 and left the place, therefore, PW-1 could not apprehend him. In the presence of independent witnesses, he examined MO-1 and detected 5 litres of arrack in it. He took 180 ml of sample and sealed it. For that, he prepared Ext.P1 mahazar. Independent witnesses and the excise guard present there attested Ext.P1 mahazar. MO-1 was sealed at the place of occurrence and entrusted to the Excise Inspector. PW-3 Excise Inspector admitted that on the basis of Ext.P1 and MO-1, he prepared a crime and occurrence report. Ext.P3 is the occurrence report. The seized article was produced **Crl.Appeal No.1674/2004** **4** before court. Ext.P4 is the requisition for chemical examination, Ext.P5 is the thondy list and Ext.P6 is the chemical examination result. As per Ext.P6, 21.05% of Ethyl Alcohol was detected in it. PW-4 attested Ext.P1 mahazar at the time of seizure at the place of occurrence. Analysing the oral evidence of PW-1, PW-3 and PW-4 it is clear that when patrolling party reached that place of occurrence, one person abandoned MO-1 there and PW-1 seized those articles after preparing Ext.P1 mahazar. But there is no independent corroboration to the alleged seizure. 6. The Village Officer, Chengottukavu village arrived at the place of occurrence and prepared Ext.P2 site plan. His evidence shows that as per the direction issued by Excise Inspector, Quilandy, he inspected the place of occurrence and prepared Ext.P2. His oral evidence shows that vehicle of excise party can come only upto Mailadupara Road, from there to the place of occurrence as a distance of one kilometer. The prosecution has no dispute with regard **Crl.Appeal No.1674/2004** **5** to that evidence. But the oral evidence of PW-4 excise guard shows that he saw the accused while he was sitting in a jeep and proceeding near to the place of occurrence. But PW-1 stated that the jeep was proceeding through the Mailadupara Road and he saw the accused at a distance of 30 feet. His identity and difference in the place of occurrence create a doubt in the credibility of the prosecution case. When there is no vehicle of excise to the place of occurrence, there is no chance for PW-1 and PW-4 to see the accused carrying MO-1 at the place of occurrence. To that limited purpose, the evidence of PW-2 is relevant. Moreover, appellant was arrested on 21.03.2002 by PW-5. Even after arrest of the appellant, he was not shown to PW-1, PW-4 and PW-3 for ascertaining the identity. They have no case that accused is familiar to them. The Apex Court in **Mahabir v. State of Delhi [2008 KHC 4541]** and held that the evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. **Crl.Appeal No.1674/2004** **6** The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. 7. Normally, it is the settled law that absence of test identification parade in all cases is not fatal if the accused is known to the witnesses. But the position is different if the witnesses have no previous acquaintance with the accused and they have properly identified them at the time of occurrence and the accused was not arrested and identified them after arrest. But at a later stage if an identification was made for the first time in court, it is not reliable. The Apex Court in **Suresh Chandra Bahri v. State of Bihar [1995 KHC 556],** where it was held as follows: 'It is well settled that substantive evidence of the witness is his evidence in the court but when the **Crl.Appeal No.1674/2004** **7** accused person is not previously known to the witness concerned then identification of the accused by the witness soon after his arrest is of great importance because it furnishes an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. From this point of view it is a matter of great importance both for the investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused.' 8. This Court in **Chandran v. State of Kerala [2013 (3) KHC 312]** while considering Section 20(b)(ii)(C) of Narcotic Drugs and Psychotropic Substances Act, held that in the absence of evidence with regard to the identification of ran away accused is identification for the first time in the Court during the course of trial could not be sufficient to enter a conviction. **Crl.Appeal No.1674/2004** **8** 9. The Apex Court also quoted with approval the decision reported in **State of U.P. v. Boota Singh [1979 (1) SCC 31]** and held that the evidence of identification becomes stronger if the witness has an opportunity of seeing the accused not for a few minutes but for some length of time, in broad daylight, when he would be able to note the features of the accused more carefully than on seeing the accused in a dark night for a few minutes. The principles of identification, the purpose, failure to hold identification are elaborately discussed by the Apex Court in **Dana Yadav Alias Dahu and others v. State of Bihar [2002 (7) SCC 295]** and held that the evidence of identification is a relevant piece of evidence under Section 9 of the Evidence Act where the evidence consists of identification of the accused at his trial. The identification of an accused by a witness in court is substantive evidence whereas evidence of identification in test identification parade is though primary evidence but not substantive one and the same can be used only to corroborate identification **Crl.Appeal No.1674/2004** **9** of the accused by a witness in court. 10. The identification given by PW-1, PW-3 and PW-4 is not sufficient for warrant of conviction under Section 55 (a) of the Abkari Act. Therefore, their evidence is not safe and the appellant is entitled to get the benefit of doubt. In the result, the conviction and sentence passed by the Additional Sessions Judge, Kozhikode under Section 55 (a) of Abkari Act is set aside and the appellant is acquitted. The appeal is allowed. sd/- JV **P.D.RAJAN JUDGE**