Kerala HC allowed criminal appeal against conviction for highway dacoity under IPC 397. Court set aside conviction due to lack of legal evidence, flawed recovery proceedings violating Section 27 Evidence Act, and unreliable identification testimony.
Conviction and sentence set aside. Appellants acquitted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
WEDNESDAY, THE 31ST DAY OF AUGUST 2016/9TH BHADRA, 1938
CRL.A.No. 820 of 2010
----------------------------------S.C.NO. 456/2011 OF THE ADDITIONAL SESSION COURT, THRISSUR (FAST TRACK COURT NO.II, ADHOC)
APPELLANT(S)/ACCUSED 3 TO 5 :
1. PRAKASAN,
2. SHERLY, S/O. MUNDAKKAL VEETTIL KUMARAN, MALAYATOOR VILLAGE, DESOM.
3. SHAJI @ MALA, S/O. IDATHATTIL VEETTIL THANKAPPAN, MALAYATOOR VILLAGE, MALAYATOOR DESOM.
BY SRI.B.RAMAN PILLAI (SENIOR ADVOCATE)
ADVS. SRI.R.ANIL
SRI.M.SUNILKUMAR SRI.SUJESH MENON V.B. SRI.T.ANIL KUMAR SRI.MANU TOM SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.SAIBY JOSE KIDANGOOR SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE
RESPONDENT(S)/COMPLAINANT :
STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., (CRIME NO.154/1998 OF KUNNAMKULAM POLICE STATION).
BY SR. PUBLIC PROSECUTOR SRI. C.S.HRITHWIK
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Msd.
B. KEMAL PASHA, J.
................................................................ Crl. Appeal No. 820 of 2010
............................................................... Dated this the 31st day of August, 2016
J U D G M E N T
The appellants are A3, A4 and A5 respectively in S.C.No.456 of 2001 of the Additional Sessions Court(AdhocII), Thrissur. The appellants along with A1, A2 and A6 to A11 faced the trial. A2 did not faced the trial and consequently the case against him was split up and refiled as S.C.No.254/2010. All the other accused except the appellants and A2, were acquitted.
A1, A2 and A9 hatched a criminal conspiracy to commit
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Highway dacoity, for which, they assembled at the finance office of A1 and formed the aforesaid common object. PW1, as the driver, along with PW2 as the cleaner, were taking a lorry loaded of pepper from Sulthan Bathery to Kochi on 25.03.1998, by lorry bearing Reg.No.KL-12-5673. A1, A2 and A4 had allegedly followed the lorry by Tata Sierra car bearing Reg.No.KL-7Q-383 belonged to A1. A3 and A5 along with three other unidentified accused also came behind the lorry by a blue Maruti Car. When the lorry reached a place called Kanippayyur, which is one kilometer north to the Kunnamkulam Police Station, by 3 a.m. on 26.03.1998, swiftly, the persons in the blue Maruti car overtook the lorry and obstructed the lorry whereby PW1 stopped the lorry. An unidentified accused by name Sorab Singh came out of the blue Maruti car and came to the right side of the lorry and placed PW1 driver at gun point, by placing a revolver on the neck of PW1. A5 and three others also came out of the blue Maruti car and they came to the
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left side of the lorry and got into the cabin. The aforesaid Sorab Singh also got inside the cabin and all of them overpowered PW1 and PW2. Their hands, mouth and face were tied with the lungi worn by PW2 and dhothi worn by PW1 and they were thrown to the rear portion of the cabin. The said accused persons took control of the lorry and proceeded forward, piloted by the said Maruti 800 car as well as a Tata Sierra Car.
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Wadakkenchery. A11 had allegedly, stored the booty and concealed the same with the knowledge that it was the subject matter of dacoity.
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conducted the investigation. A2, A3 and A4 were taken into custody. Their arrest was not recorded. Consequently, the wives of A2 and A3 approached this Court through O.P.(C) No.19026/98 and the mother and the wife of A4 approached this Court through O.P.(C) No.19018/98 complaining that the said accused persons were illegally taken away in mysterious circumstances by the police on 30.09.1998. The aforesaid O.Ps were disposed of on 7.10.1998, when it was reported before this Court that the arrest of A2, A3 and A4 were recorded on 05.10.1998. The investigation conducted by PW56 was continued by PW61, who laid the final report.
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marked. Exts.D1 and D2 are the judgments of this Court in the aforesaid O.Ps. After hearing both sides, the court below found the appellants guilty of the offence under Section 397 IPC and convicted them thereunder, and each of them were sentenced to undergo rigorous imprisonment for seven years.
by the prosecution before the court below. The learned Senior Counsel has pointed out that there was a Test Identification Parade in this case conducted by PW45,
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learned Judicial First Class Magistrate, Chavakkad. PW45 has recorded Ext.P45 proceedings of the Test Identification Parade. In the Test Identification Parade, PW1 and PW2 were taken as witnesses to identify the accused. According to PW45 and as per the contents of Ext.P45, PW1 and PW2 had identified A2 and A3 in the case. No other accused were identified by them. It has to be noted that A2 to A5 were the accused persons who were made to stand in the Test Identification Parade. Even then, PWs.1 and 2 could identify A2 and A3 only. They did not identify A4 and A5.
during the evidence in court, PW1 made a somersault and he had chosen to identify A4 as one of the persons identified by him in the Test Identification Parade and also as the person who had rushed to him with the revolver by getting out the blue Maruti Car. In court, PW1 has not identified A3 who was identified by him in the Test Identification Parade. It has been argued that from the evidence of PW45, the
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contents of Ext.P45, and the evidence of PW1, the identity of the 4th accused by PW1 in court cannot be believed. It has also been argued that in the light of his identification of the 4th accused alone in court, the identification of A2 and A3 in the Test Identification Parade, also cannot be believed.
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simply mentioned that Ext.P55 statement was furnished by A4. So long as he has not opted to reproduce the statement before the court below as evidence, the same could not have been considered as information furnished by A4 which led to the discovery within the meaning of Section 27 of the Evidence Act. Similar is the case with all the recoveries allegedly effected by PW56. PW19 attester of Ext.P22 has not supported the case of PW56. He has not identified A4.
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recovery was effected at the instance of A4 and that A4 was present at the time of such recovery.
deposed that he did not know A4. According to him, none of the accused were present along with the police at the time when he handed over 700 kgs. of pepper to the police.
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CW43 along with A5 and recovered a quantity of pepper in the presence of PW22 through Ext.P24 mahazar. PW22 has not identified A5.
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information allegedly furnished by A3, he reached the shop of A11 along with A3 on 12.10.1998 and recovered a quantity of pepper in the presence of PW26, through Ext.P26 mahazar. According to PW26, none of the accused were present along with PW56 at the time when he handed over the pepper to PW56.
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furnished by A4, A5 and A3 before him which allegedly led to the discovery, such statements could not have been admitted by the court below as evidence under Section 27 of the Indian Evidence Act. Even when such statements are admitted as information furnished by the said accused persons, and even when such discoveries are proved, at the most the said statements could be made use of as corroborate piece of evidence only, within the meaning of Section 27 of the Evidence Act. Strangely enough, the court below has not even cared to state that the said statements were admissible under Section 27 of the Indian Evidence Act. It seems that simply believing the versions of PW56, in the absence of any corroborative piece of evidence, the court below has chosen to treat the evidence of PW6 as gospel truth.
PW56 at the instance of A4, A5 and A3, the court below has considered the identification of A4 by PW1 in court to convict
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the said accused persons. Regarding the evidence of PW1, with regard to his identification of A4 in court, at any stretch of imagination, the same cannot be believed. As per Ext.P45 proceedings which were prepared by PW45 during the Test Identification Parade and as per the evidence of PW45, PW1 and PW2 had identified A2 and A3 in the case in the Test Identification Parade.
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was A4 who had approached the lorry through the right side and had approached PW1 with a revolver. The prosecution has no case that A4 was travelling by the blue Maruti car. It is the specific case of the prosecution that A4 was travelling by the Tata Sierra Car.
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time in court, his evidence regarding the identification as such cannot be believed.
absence of the Test Identification Parade, the evidence of a witness regarding the identification for the first time in court cannot be relied on as proper identification. In this connection, the learned counsel for the appellants has invited the attention of this Court to the decision in Vijayan v. State of Keral a [1999 (1) KLT 760(SC)] . Here, in this case, there was a Test Identification Parade. At the same time, in the Test Identification Parade also PW1 did not identify A4. Therefore, his identification of A4 for the first time in court cannot be believed for any purpose at all. The court below has committed a grave error in relying on the so-called identification of A4 by PW1 for the first time in court.
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seems that he had identified A2 and A3 in the Test Identification Parade in the presence of PW45. It has been pointed out that he could not identify even A3 before the court below during trial.
In the result, this Criminal Appeal is allowed, and the conviction and sentence passed by the court below are set aside. The appellants stand acquitted.
Sd/- B. KEMAL PASHA, JUDGE.
ul/-
// true copy //
P.S. to Judge.
3 issues framed by the court
Whether the conviction and sentence based on disputed recovery evidence and identification testimony can be sustained.
Whether statements under Section 27 of the Evidence Act were properly admitted as substantive evidence.
Whether the identification of an accused for the first time in court is legally sustainable without prior Test Identification Parade.
Colour shows how this judgement treated each authority
Vijayan v. State of KeralaExplained¶25
_Vijayan v. State of Kerala_ [1999 (1) KLT 760(SC)]
3 provisions across 2 enactments
Prakasan
Sherly
Shaji @ Mala
State of Kerala
B. Kemal Pasha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
B. Kemal Pasha
Parties & counsel
