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MURALI v. STATE - CRL A No. 474 of 2001(C)  RD-KL 1 (30 May 2003)
IN THE HIGH COURT OF KERALA AT ERNAKULAMCRL A No. 474 of 2001(C)
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :PUBLIC PROSECUTOR
CoramThe Hon'ble MR. Justice K.A.ABDUL GAFOOR The Hon'ble MR. Justice N.KRISHNAN NAIR
Dated : 30/05/2003
: O R D E R
K.A. ABDUL GAFOOR & N. KRISHNAN NAIR, JJCrl.A.NO.474/2001-C
Abdul Gafoor, JSix persons were charge sheeted for the offence punishable under Secs.143,147,148 and 449,302 read with Sec.149 I.P.C. Sec.149 was incorporated because of the involvement of accused 5 and 6. On the basis of the evidence available the learned Addl. Sessions Judge, Palakkad found nothing on record for the involvement of accused 5 and 6 and they were acquitted. But the learned trial judge found that accused 1 to 4, appellants before us, were guilty of the offences punishable under Sec.449 and 302 IPC and convicted and sentenced them to undergo rigorous imprisonment for two years for the former offence and to undergo life imprisonment for the latter offence. It was also found that they had common intention to commit such offence. So the punishment was also taking into account Sec.34 IPC.
2. On reading the judgment, it is also seen that the main defence taken by the accused was that none of the witnesses had properly identified any of the accused to implicate them in the alleged incident. It was also contended that there was also no proper recovery to connect the accused with the weapon alleged to be used to inflict the injuries on the deceased.
3. The prosecution case was as follows;
4. The deceased Balakrishnan was a watchman attached to Geetha Theatre at Kulapully. After the second show on 7.2.1996 he was in the canteen chatting with PW1, an employee in the said canteen. It was at 12.30 a.m. At that time the accused persons arrived in a jeep to the theatre. Four among them, the appellants before us came down to the canteen and asked the deceased whether he got a money purse. He answered in the negative. The deceased was asked to come out of the canteen. The deceased came out. At that time accused No. 3 with M.O.4 stabbed the deceased Balakrishnan. Deceased Balakrishnan on receipt of the stab injury ran outside the compound of the theatre and went to a saw mill on the opposite side. The accused persons ran behind the deceased and accused No.4 inflicted a cut injury with M.O.1 sword, on the deceased. He fell down and succumbed to injuries. The witnesses of this case cited by the prosecution were PW1 to PW23. PW1 was the first informant as well. He had given Ext.P1 FI statement to PW18, the Sub Inspector of police at about 2.30 a.m on the date of incident and pursuant to Ext.P1, crime No.41/1998 was registered and the assailants were indicated as persons who could be identified by sight. .............None was named by PW1 while giving FI statement nor any description of the assailants had been given to the police. Based on this PW10 conducted the investigation and arrested the accused, recovered MO.1 and 4 and Ext.P10 charge was laid against the accused.
5. The learned Addl. sessions Judge had on appreciation of the evidence on record negativing the contentions of the defence convicted and sentenced the appellants/accused 1 to 4, mainly relying on the evidence of PW1 to PW3 who are alleged to have seen the incident of A4 and A3 inflicting the injuries, as mentioned above in the mercury light on the side of a road. It was an important junction, where there was sufficient light. There were enough vehicles parked and different shops functioning there. As all the witnesses had identified the accused in Court as seen by them on the date of occurrence in the mercury light available at the place of occurrence, it was found by the learned trial judge that the guilt had been proved beyond doubt as regards accused 1 to 4. Accordingly the conviction and sentence.
6. It is contended in this appeal that the identity of the accused/appellants had not been proved by the prosecution. As deposed by PW1 to PW3, none of them had seen any of the accused, at any time, before the date of occurrence, namely 7.2.1996. All these three witnesses are unanimous on that point. PW1 had also not seen them at any point even thereafter. He identified them in the court. But according to PW2 and PW3 they had seen the accused in the police station, after the occurrence. They have identified them in the court as well, on its basis. It is a conceded position before us that no test identification parade had been conducted during the course of investigation. On the basis of this evidence and facts it is contended by the counsel for the appellants that, though identification parade is not necessary always to identify an accused in a case where the witness had never seen the assailants, any time before, their identification in the court ought to have been corroborated with other evidence to substantiate the identification at the time of occurrence. Therefore absence of identification parade is vital in this case. It is further contended that merely because strangers had seen attacking the deceased on the date of occurrence, the witness who had even seen the occurrence could not have identified the accused after 4 years, at the time of trial. Such identification is absolutely without any probative value to bring home the guilt of the accused. It is further contended that when two of the witnesses had been given an opportunity to see the accused in the police station, necessarily their evidence becomes more unworthy, when they identified the accused at the time of trial. Therefore, in this case there is absolutely no evidence to show that it was the accused persons who had committed the assault on the fateful day ie. 7.2.1996. In support of this contention the learned counsel for the appellant relied on several decisions.
7. In answer, it is contended by the Public prosecutor that absence of test identification parade is nothing but a defect in the investigation. The accused persons cannot cash out such defect to get an acquittal. As per the prosecution case and as spoken to by PW1 to PW3, the assailants had come to the spot in a jeep. They had come out of the jeep and gone to the canteen inside the compound of the theatre. They have run behind the accused from the theatre. Thus there was sufficient time gap for PW1 to PW3 to get the identity of the assailants. Therefore they could have remembered their faces. They could have recognized them to be pointed out later. Therefore there is nothing illegal in them identifying the accused at the time of their examination in court. He has also in this regard attempted to rely on the decision reported in Dana Yadav v. State of Bihar (2002 (7) SCC 295).
8. There is also a contention from the appellants that the recovery of MO.1 and 4 also cannot be relied on, because PW12 who was witness to Ext.P11 mahazar for recovery of MO.1 sword, had clearly stated that he had never seen A4 taking out that sword. There is also discrepancy in the deposition of PW13 as to who had really recovered MO.1 sword; whether it was A3 or A2. PW11 who was witness to Ext.P11 mahazar for recovery of MO.4 knife said to be used by accused 3 to inflict injury on the deceased, has stated that he could not identify the person who had really shown that weapon. He had been given the name Mohanan by the police. He is also not sure whether the said Mohanan is among the accused. Therefore there is no proper recovery to connect the accused with these weapons said to be used for the infliction of the injury on the deceased.
9. So far as the contention regarding recovery is concerned we are not much impressed because PW22 who had recovered these articles on the basis of information given by accused A4 and A3 had spoken to about the recovery. Even PW12 and PW11 had witnessed the respective recovery and the recovery from the spot is also spoken to by them. In such circumstances it cannot be taken that there is any vitiating aspects with reference to the recovery in this case.
10. But the contention with regard to the
identity of the accused is something to be examined
detail. As already mentioned above PW1 to PW3 had
deposed that they had not seen the accused prior
occurrence. The alleged assailants were totally
strangers to them. PW1 had not seen any of them
identified them in the court. PW2 and PW3 had seen them
in the police station on a prior occasion
identified them as the assailants while in court.It is
also clear from Ext.P1 FI statement that
had not given anything about the description of the
assailants. Whether by this identification,
guilt can be
brought home to the accused is the question arising in
this case. In the decision reported
in Mohammed Abdul
Hafeez V. State of Andhra Pradesh (AIR 1983 SC 367)the
Supreme Court has held that;
"The total absence of any such description which would have provided a yardstick to evaluate the identification of the present appellant at a later date by victim Satyanarayana would render his later identification weak but that is not the only error.Ext.P1 clearly shows that the victim Satyanarayana did not know the names of the persons who robbed him. In such a situation ordinarily after the accused were arrested the test identification parade should have been held. It is admitted that no such identification parade was held. It is only when the victim Satyanarayana came to give evidence in the Court and the four accused were sitting in the Court that he identified them as the miscreants. Incident occurred on December 9, 1978. Evidence of Satyanarayana was recorded in the Court on April 21, 1979. There was thus a lapse of more than four months during which period it is not possible to believe that victim Satyanarayana had no occasion to see the accused. Such identification in the circumstances of the case would hardly furnish any evidence against the present appellant." Therefore, as there was no test identification parade it is contended that in the light of this decision the identification of the accused by PW1 to PW3 at the court cannot be relied upon to fasten guilt on them.
11. It is in answer to this contention the
learned Public Prosecutor has relied on the decision
reported in Dana Yadav V. State of BIhar (2002(7) SCC
295 . But on a careful reading of the said decision
which formulates several points with respect to the
necessity or otherwise of test identification parade
has been categorically laid down that;
"Failure to hold test identification parade does
not make the evidence of identification in Court inadmissible, rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form the basis of conviction the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law." Here also the apex court has made it clear that the identification by the witness for the first time in court should not form the basis for conviction, unless corroborated by his previous identification in the test identification parade or in other evidence. The Supreme Court with reference to the facts of the case had gone to the extent of holding that
"Thus it could not be safe to place reliance on the identification parade for the first time in court by these witnesses after the inordinate delay of more than 2 years from the date of incident especially when that identification in the court is not corroborated either by the previous identification in the test identification parade or any other evidence."
12. Even in this decision the Supreme Court has not departed from the earlier decision referred to supra. The importance is that the court has to examine whether the evidence available is reliable or not. In this case there is no other cogent evidence forthcoming with reference to the identification of the accused concerned. Therefore the decision in Dana Yadhav does not in any way help the prosecution to get away from the clutches of the of the other decisions, in the absence of earlier identification in the similar circumstances.
13. It is true that two among the witness PW2 and PW3 had seen the accused in the police station but that also cannot help the prosecution. It has been held in the decision reported in Mohanlal V. State of Maharashtra (AIR 1982 SC 839) and in the decision in Mohd Iqbal M. Shaikh and Ors. V. State of Maharashtra (AIR 98(4) SCC 494) that the identification of the accused by the witness concerned in the police station cannot be of any significance to fasten guilt on the accused. In the former case it has been held as follows; Thus, as Shetty did not know the appellant before the occurrence and no Test Identification parade was held to test his power of identification and he was also shown by the police before he identified the appellant in Court, his evidence becomes absolutely valueless on the question of identification. On this ground alone, the appellant is entitled to be acquitted. It is rather surprising that this important circumstance escaped the attention of the High Court while it laid very great stress in criticizing the evidence of Dr. Heena when her evidence was true and straightforward."
14. In the latter one Mohd Iqbal M. Shaikha and Ors. V. State of maharashtra ( 1998 (4)SCC 494 it has been held that if the police shows the accused person to the identifying witness in the course of investigation, the so called identification in court is of no significance and cannot form the basis for conviction. Therefore evidence given by PW2 and PW3 with respect to the identification of the accused loose its significance and evidentiary value and it cannot be relied upon. So this is a case where there was absolutely no worthy evidence to be acted upon to identify the accused. In the result, the order of conviction and sentence passed against the accused in SC.133/1997 on the file of the IInd Addl. Sessions Judge, Palakkad is set aside, they are found not guilty of the offence and they are acquitted. If they are in custody, they shall be released forthwith, if they are not wanted in any other case.
30.05.2003. K.A. ABDUL GAFOOR, JUDGE.
N. KRISHNAN NAIR, JUDGE.vi.
K.A. ABDUL GAFOOR & N.KRISHNAN NAIR,JJCrl.A.NO.474/2001
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